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[2021] ZAGPJHC 120
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Hassim v Lishiva (35381/2020) [2021] ZAGPJHC 120 (14 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO
: 35381/2020
NOT REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
Date:
17 May 2021
This
matter was heard virtually
via
Microsoft Teams platform
In
the matter between:
AKBAR
HASSIM
Plaintiff
and
LISHIVA,
ANDREW MBENGENI
Defendant
Coram:
Majavu AJ
Heard
:
11 May 2021
Delivered:
14 May 2021 – This judgment was
handed down electronically by circulation to the parties'
representatives by email, by being
uploaded to the
CaseLines
digital system of the GLD and by release to
SAFLII. The date and time for hand-down is deemed to be 13h00 on 14
May 2021
Summary:
Exception- the defendant raised four (4) grounds of exception on the
basis that the particulars
of claim are vague and embarrassing,
complained about paucity of information, resulting in its ability to
decipher the case is
called upon to meet, misconstrued the applicable
principles relating to exception, complaining about lack of
particularity that
could be obtained through request for further
particulars, or grounds dismissed with costs on a party and party
scale, including
those consequent upon the employment of counsel.
ORDER
(a)
The first to fourth grounds of exception are dismissed.
(b)
The defendant is ordered to pay the costs, on a party and party
scale, including the costs
consequent upon the employment of counsel.
Majavu
AJ
[1]
Before me is an exception, which is opposed.
[2]
The defendant raises four complaints on which the exception is based.
[3]
For better flow and ease of reading, I propose to restate the grounds
as set out in
the notice of exception here under.
[4]
I will also deal with each in turn.
[5]
I must also commend both counsels for the detailed and helpful heads,
for which I
am grateful.
Grounds
of complaint
[6]
The defendant raises four grounds of complaint, premised on the
absence of averments
necessary to sustain a proper cause of action,
as well as the presence of allegations which it contends render the
particulars
of claim vague and embarrassing within the meaning of
rule 23(1)
[1]
. It is common
cause that the defendant afforded the plaintiff an opportunity to
remove the cause of complaint, which invitation
was not heeded, hence
the adjudication of
this
exception.
A.
The defendant’s grounds of complaint
The
first ground
[7]
“
[1.1]
In paragraphs 11, 12, 13 and 14 of the particulars of claim the
plaintiff premised
its claim on a settlement agreement concluded
between the plaintiff and the defendant. The settlement agreement, on
the construction
of the plaintiff’s allegations, was to know
vague and replaces all prior agreements concluded between the
respective parties
(paragraphs 12.3). Here in the plaintiff in
paragraph 14 6 specific performance in terms of that agreement.
[1.2]
In contrast thereto, the plaintiff claims in paragraphs 15 to 23.2 an
alternative claim which is not premised upon any conditional finding
in respect of the main claim in respect of the settlement.
[1.3]
The alternative claim foreshadows a cancellation of the partnership
agreement, which preceded the alleged settlement agreement.
[1.4]
The 2 claims are mutually destructive and cannot exist in unison if
regard is had to the fact that the plaintiff is required to make an
election in respect of the respective courses of action, albeit
to
plead out the basis for the alternative claim.
[1.5]
As a consequence of the aforesaid, the defendant is embarrassed to
plead
to the vague particulars and as a consequence is prejudiced.
The
second ground
[8]
“
[2.1]
In paragraph 9 of the particulars of claim the plaintiff alleges
that:-
“
on various
occasions following the conclusion of the partnership agreement had
with regular occurrence the defendant purportedly
orally acknowledged
his obligation to account and pay to the plaintiff”
[2.2]
The plaintiff has failed to set out with particularity on which
respective
dates such acknowledgement was advanced to allow the
defendant to respond thereto sensibly.
[2.3]
As a consequence, the particulars of claim is vague and embarrassing
and the defendant is embarrassed to plead thereto, resulting in
prejudice to the defendant.
The
third ground
[9]
[3.1]
In paragraph 12 of the particulars of claim the plaintiff claims that
on the strength of an oral agreement certain “material,
alternatively tacit, further alternatively implied terms…”
operate in terms thereof.
[3.2]
The plaintiff failed to allege out any conduct by the defendant to
suggest
on what basis it may be concluded that the terms were either
tacitly accepted, alternatively impliedly operating between the
parties.
[3.3]
As a consequence, the defendant is embarrassed to plead thereto and
suffers prejudice as a consequence thereof.
The
fourth ground
[10]
[4.1]
In paragraph 12.9 of the particulars of claim the plaintiff alleges
that the defendant undertook to settle all loan amounts outstanding
to Investec.
The plaintiff is
required to provide particularity on what, and to whom were these
loans in favour and to supply all documentary
proof relating thereto.
[4.2]
The plaintiff has failed to set out particularity on details of such
loans, to whom such loan was provided to, what amount for and when
such amount is due.
[4.3]
As a consequence, the defendant is embarrassed to plead thereto and
suffers prejudice as a consequence thereof.
B.
The law applicable to exceptions
Vague
and embarrassing
[11]
In the case of
Inzinger
v Hofmeyer
and
others
[2]
, it was said that:
“
4. An exception
that a pleading is vague and embarrassing strikes at the formulation
of the cause of action and its legal validity.
It is not directed at
a particular paragraph within a cause of action but at the cause of
action as a whole, which must be demonstrated
to be vague and
embarrassing. As was stated in Jowell v Bramwell-Jones and Others
1998 (1) SA 83
(W) at 905 E-H:
“
I must first
ask whether the exception goes to the heart of the claim and, if so,
whether it is embarrassing to the extent that
the defendant does not
know the claim he has to meet”
Vagueness amounting to
embarrassment and embarrassment in turn resulting in the prejudice
must be shown. Vagueness would invariably
be caused by a defect for
incompleteness in the formulation and is therefore not limited to an
absence of the necessary allegations
but also extends to the way in
which it is formulated. An exception will not be allowed, even if it
is vague and embarrassing unless
the excipient will be seriously
prejudiced if compelled to plead against which the objection lies”
[12]
The nature and extent of exceptions based on the ground that a
pleading is vague and embarrassing
were duly considered by Mc Creath
J in the matter of
Trope
v South African Reserve Bank
and
two others
[3]
and cited with
approval by Heher J in the matter of
Jowell
v Bramwell-Jones
the
court referred to the following principles pertaining to exceptions:
“
(a) Minor
blemishes are irrelevant,
(a)
Pleadings must be read as a whole,
no paragraph can be read in
isolation,
(b)
A distinction must be drawn between
the
facta probanda
, or
primary factual allegations which every plaintiff must make, and the
facta probantia,
which are the secondary allegations upon
which the plaintiff will rely in support of his primary factual
allegations. Generally
speaking, the latter are matters for
particulars for trial and even then are limited. For the rest, they
are matters of evidence,
(c)
Only facts need be pleaded, conclusions
of law need not be pleaded,
(d)
Bound up with the last mentioned consideration
is that certain
allegations expressly made to carry with them implied allegation s
and the pleading must be so read:…”
[13]
An exception on the basis that the pleading is vague and embarrassing
is also intended to cover
the case where, although a case might
appear from the claim, there is some defect or incompleteness in the
manner in which it has
been formulated, resulting in embarrassment to
the defendant. Typically, this type of exception is not directed at a
particular
paragraph within a cause of action, but rather goes to the
whole cause of action, as the learned judge correctly observed in the
case of
Trope
v South African Reserve Bank
[4]
.
No
cause of action
[14]
When an exception is raised against the pleading on the basis that it
lacks averments necessary
to disclose a cause of action, this implies
that even if one were to accept the factual averments as set out in
the pleading is
correct, these factual averments do not justify the
conclusion of law or the relief the pleader intends to reach. It
therefore
follows that the defendant cannot plead the defence to a
cause of action which does not exist or is otherwise precluded on any
lawful ground. The same position was restated in the constitutional
case in the matter of Pretorius and Another v Transport Pension
Fund
and others
[5]
,
“
[15] in
deciding an exception the court must accept all allegations of fact
made in the particulars of claim is true, and may not
have regard to
any other extraneous facts or documents, it may uphold the exception
to the pleading only when the excipient has
satisfied the court that
the cause of action or conclusion of law in the pleading cannot be
supported on every interpretation that
can be put on the facts. The
purpose of an exception is to protect litigants against claims that
are bad in law or against an embarrassment
which is so serious as to
merit the costs even of an exception. It is a useful procedural tool
to weed out bad claims at an early
stage, but an overly technical
approach must be avoided.”
[15]
Further, as to pleadings which disclose no cause of action, Griessel
J stated in
Frank
v Premier Hangers CC
[6]
that:
“
[11] In order
to succeed in its exception, the Plaintiff has the onus to persuade
the court that, upon every interpretation which
the defendant’s
plea and counterclaim can reasonably bear, no defence or cause of
action is disclosed. Failing which, the
exception ought not to be
upheld”.
This
applies with equal force
to an exception raised by a defendant to the plaintiff’s
particulars of claim.
[16]
Vermeulen
v Goose Valley Investments (PTY)Ltd
[7]
Marais JA stated as follows as para [7] page 997:
“
[7] it is
trite law that an exception that a cause of action is not disclosed
by a pleading cannot succeed unless it can be shown
that ex facie the
allegations made by the plaintiff and any other document upon which
his cause of action may be based, the claim
is
(not
may be) bad in law”
[17]
I now turn to the defendants’ grounds of complaint. Before I do
so, I make an observation
that, the manner in which the grounds have
been framed is unnecessarily prolix and borders on being
argumentative or a request
for further particulars. The issues raised
therein appear to be crystallised and very crisp and should have been
dealt with as
such.
The
first ground
[18]
In order to properly contextualise the gravamen of the excipient’s
first ground, is important
to appreciate the formulation of the
particulars of claim under attack. The plaintiff’s particulars
comprise of the
main claim
(see paragraphs 11 to 14) and an
alternative claim to the main claim (see paragraphs 15 to 23
thereof). The main claim rests on
the conclusion of a settlement
agreement between the parties, each acting personally and orally
agreeing to terminate the partnership
and settle all claims between
them. Flowing therefrom, certain financial consequences ensued as set
out in paragraphs 12.1 to 12.13
of the particulars of claim. Chief
among them, the defendant was obliged to make payment to the
plaintiff of the settlement amount
of R8 million and to transfer his
shares in a company known as Future Dev Properties (“the
Company”) to the plaintiff.
When this was not complied with by
the defendant, the plaintiff instituted payment from the defendant in
that amount (together
with interest thereon) and as a further order
pertaining to the transfer of the 50% shareholding in the company to
the plaintiff.
The
alternative claim
on the other hand, is
pleaded as arising from material (mis)representations, which the
plaintiff alleges that induced it to partner
with the defendant,
resulting in the partnership agreement, now terminated. The plaintiff
advised that had it been aware of the
falsity of the material
representations, it would
not
have entered into the
partnership agreement with the defendant. This is a complete and
self-standing cause of action. In consequence
of the falsity of the
material representations made by the defendant, the plaintiff avers
that it suffered damages in the sum of
R 5 676 520,00 is
more particularly set out in paragraphs 19.1 to 19.3 of the
particulars. It is my considered view that
these damages, quite
plainly arise from a different set of facts and circumstances to
those on which the main claim is anchored.
[19]
Having sketched the above background, the essence of this ground of
exception seems to be erratically
based on the contention that “
the
two claims are mutually destructive and cannot exist in unison if
regard is had to the fact that the plaintiff is required to
make an
election in respect of the respective courses of action, albeit to
plead out the basis for the alternative claim”
(sic).
Firstly, I do not agree that the plaintiff is under any
obligation to make the election as contended for by defendant.
Secondly,
there is no vagueness in how that claim is formulated, let
alone one that could possibly lead to any embarrassment at the
instance
of the defendant. The case that the defendant has to meet is
self-evidently plain and unambiguous. It’s
main claim
is
rooted in the settlement agreement and resultant non-compliance there
with, whereas,
the alternative
claim is based on material
misrepresentations, the truth of which had it been known to the
plaintiff, the latter would not have
entered into the partnership
agreement.
[20]
The alternative claim is by definition, an alternative (something
other than) what is contended
in the main claim. It therefore flows
that the main in the alternative claim by extension of logic do not
necessarily have to coexist,
to enable a defendant to fully
appreciate the case it is called upon to meet. In both instances, the
material facts are sufficiently
contained in the pleading. Put
differently, the necessary facts which the plaintiff would be
required to prove in order to support
its claim, have been disclosed
in sufficient detail. It is not necessary for every piece of evidence
required to prove each fact
to be pleaded. In Evidence v Shield
Insurance Co. Ltd
[8]
it was said
that “
cause
of action… is ordinarily used to describe the factual basis,
the
said of material facts, that begets the plaintiff’s legal right
of action”.
I
align myself with this dictum. [My emphasis]
I
am in full agreement with the plaintiff’s counsel when he
contends that the allegations that do not serve to establish the
cause of action would not qualify as being “material”.
Further, every pleading shall contain a clear and concise statement
of the material facts upon which the pleader relies for his claim
with sufficient particularity to enable the opposite party to
reply
thereto. In this case I am persuaded that such particularity has
indeed been provided. The defendant misconstrues the full
import of
both the main and alternative claims, resulting in its mistaken view
regarding the election which it argues ought to
have been made by the
plaintiff, as well as the nonexistence “in unison”
argument. It goes without saying that in the
adjudication of the
claim, a court would first have to consider the main claim, and in
the event that such claim succeeds, there
is no need to consider the
alternative claim and
vice versa
. I fail to see on what basis
it could ever be argued that the two claims are “mutually
destructive”, when coexistence
is not a prerequisite. The
complaint raised in this ground does not go to the heart of the cause
of action as a whole, in respect
of both the main and alternatively
claim. In the result, this ground of exception falls to be dismissed.
The
second ground
[21]
This ground of exception is directed at paragraph 9 of the
particulars. The complaint is rooted
in the fact that “
the
plaintiff has failed to set out particularity on which respective
dates such acknowledgement was advanced to allow the defendant
to
respond thereto sensibly”
(sic) as a result of that paucity
of detail, according to the defendant, the particulars are vague and
embarrassing resulting in
its embarrassment to plead thereto and a
further consequence being prejudice.
[22]
It is plain that the acknowledgement referred to is oral
acknowledgement to the plaintiff by
the defendant at Johannesburg and
pleaded as “on various occasions following the conclusion of
the partnership agreement
on or about 29
th
of the 2 July 2016. The
dates have clearly been provided, as well as the place
(Johannesburg). Further dates have been particularised
in paragraph
9.1, read with para 3.6.3 thereof. The defendant seems to have
directed it’s attack on a particular paragraph
and not the
entire cause of action, considered holistically. In the result, I am
at loss to see any demonstrable vagueness leading
to embarrassment
and prejudice at the instance of the defendant. It is still open to
the defendant to request for further particulars.
Exceptions are only
reserved for instances where the particulars are so vague and
embarrassing to a point that it goes to the root
of the cause of
action, and especially when such cause of action is not clearly set
forth in an intelligible manner. Not in a manner
that the defendant
agrees with. The test is whether or not, based on the pleading as it
currently reads, is the defendant able
to decipher the cause of
action based on the material facts pleaded, to enable it to know what
case it has to meet, not the pieces
of evidence required to sustain
it. In other words, an exception that a pleading is vague and
embarrassing must strike at the
formulation
of the cause of action and not its validity
.
[9]
[my emphasis]
[23]
I agree with the plaintiff’s counsel that the defendant has
failed to indicate why the
alleged embarrassment, if any, is so
serious that it is unable to plead and is thus prejudiced and
further, the particularity which
the defendant requires is not
capable of being obtained in terms of the quest for further
particulars, as I indicated above. Consequently,
this ground is
unmeritorious and falls to be dismissed.
The
third ground
[24]
This ground is directed at paragraph 12 of the particulars with
specific reference to the phrase
“
the material express,
alternatively tacit, further alternatively implied terms”
of the settlement agreement. Again, this complaint is ill-conceived
as it could easily be dealt with by way of a request for further
particulars. In any event, I fail to see why it is embarrassed and
able to plead simply because it has not been pleaded which terms
were
tacit alternatively implied. In such cases, the defendant could
simply admit, deny, confess or avoid all those material facts
alleged
there in, which are in any event sufficiently and intelligibly
pleaded. This ground must also fail.
The
fourth ground
[25]
This ground is directed at paragraph 12.9 which deals with the
acquisition of the 3 apartments
from Odyssey Luxury Lifestyle, loan
accounts to Investec and the sale agreement with one Jarod Kolman on
behalf of Odyssey Luxury
Lifestyle. The complaint is interestingly
couched in the language of the request for further particulars, and
correctly so, only
if that mechanism was employed, as is indeed open
to the defendant to do so. Far from being a ground for exception,
this is a classic
and textbook case of the formulation of the request
for further particulars in terms of Rule 21. At bare minimum, the
plaintiff
is only required to plead the necessary
facta probanda
and not
the facta probantia
, as the latter falls into the
category of secondary allegations (pieces of evidence) on which the
plaintiff will rely in order
to prove its primary allegations, those
being matters for trial. This ground of attack is accordingly
misplaced.
[26]
I find the pleading in this regard to be concise, intelligible and
very apparent. The absence
of the information complained of by the
defendant does not render the pleading vague and embarrassing, let
alone resulting in serious
prejudice. This ground of exception is
accordingly dismissed.
Costs
[27]
I do not see why costs should not follow the result.
The
order
[28]
I accordingly grant the following order:
28.1
The first to fourth grounds of exception are dismissed.
28.2
The defendant is ordered to pay costs on a party and party scale,
including
the costs consequent upon the employment of counsel.
Z M P MAJAVU
Acting Judge of the
High Court
Gauteng
Local Division, Johannesburg
HEARD ON:
12 May 2021
JUDGMENT
DATE:
14 May 2021
FOR THE
PLAINTIFF:
Adv N Konstantinides SC
INSTRUCTED BY:
Van Hulsteyns attorneys
FOR THE
Adv IL Posthumus
DEFENDANT:
INSTRUCTED BY:
Afzel Seedat Incorporated.
[1]
rule
23 (1) provides as follows “where any pleading is vague and
embarrassing lacks the averments which are necessary to
sustain
action or defence, as the case may be, the opposing party may,
within the period allowed for failing any subsequent pleading,
deliver an exception thereto…: Provided that where a party
intends to take an exception that the pleading is vague and
embarrassing, he shall within the period allowed as aforesaid by
notice afford his opponent an opportunity of removing the cause
of
complaint within 15 days….”
[2]
(7575/2010) [20101] ZAGPJHC 104 (4 November 2010) at paras 4 and 5
[3]
1992(3) SA208(T) at 211
[4]
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269H
[5]
2019 (2) SA 37 (CC)
[6]
2008(3) SA594 (C)
[7]
2001(3) SA 986(SCA)
[8]
1980[2] as a 814 A at 825G
[9]
VENTER and others NNO v Barritt, VENTER and others NNO V Wolsberg
Arch Investment 2 (Pty) Ltd 2008 (4SA639 (see) at 643I-644A
v