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[2022] ZAGPJHC 322
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Mumenthaler v Road Accident Fund (32900/2021) [2022] ZAGPJHC 322 (6 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, JOHANNESBURG)
CASE
NO. 32900/2021
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
06
May 2022
In
the matter between:
EVA
HELENE MUMENTHALER obo M C SCHERER
Excipient / Defendant
and
THE
ROAD ACCIDENT FUND
Respondent / Plaintiff
WRITTEN
REASONS
L
I VORSTER, AJ:
1.
In this matter the Defendant took exception against the
particulars of claim of the Plaintiff. The exception is based on the
allegation
that the particulars of claim of the Plaintiff is vague
and embarrassing resulting in the Defendant being unable to plead
thereto.
In this connection the Defendant (excipient) refers to
Uniform Rule 18(4) which reads:
“
Every pleading
shall contain a clear and concise statement of the material facts
upon which the plead relies for his claim, defence
or answer to any
pleading, as the case may be, with sufficient particularity to enable
the opposite party to reply thereto.”
2.
After having heard argument, I dismissed the exception.
I have now been requested to supply written reasons for my decision.
Those
reasons follow below.
3.
It is clear from the particulars of claim that the
Plaintiff is seeking to set-aside an ostensible settlement between
the Plaintiff
and the excipient (Defendant). The ostensible
settlement was made an order of Court on 3
rd
of March 2020 and in terms of that ostensible settlement
(Annexure “POC2” to the particulars of claim) the
Plaintiff
who was the Defendant in the action, was obliged to pay an
amount of R4 965 378,39 to the Plaintiff in that action
(Eva
Helene Mumenthaler).
4.
An analysis of the particulars of claim shows that the
Plaintiff in paragraphs 3 and 4 sets out the legal framework
regulating the
lawful actions of the Plaintiff in exercising its
duties. That entails reference to the Constitution, the PFMA and the
Plaintiff’s
system of financial management and control which
provides for delegation of functions and powers and delegation of
powers and functions
in relation to the settlement of quantum and
merits of cases either above or below R10 million and so forth. The
crucial allegation
on which the cause of action of the Plaintiff is
founded is that the required authority to consent to the settlement
agreement
was absent and is therefore a nullity and further the
absence of such required approval is an infringement of the
Constitution
and therefore invalid.
5.
There is authority for the proposition that the Court
should not look too critically at a pleading. It is for the excipient
to satisfy
the Court that there is a real point of law or a real
embarrassment.
Vide:
South African
National Parks v Ras 2001(4) All SA Law
Reports
380 (C );
Jowell
v Bramwell-Jones 1998(1) SA 836 (W) at 902 – 903
.
6.
As I have tried to explain above, the particulars of
claim and the structure of the particulars of claim is not difficult
to understand.
The provisions of the PMFA and the Constitution are
only referred to, to substantiate the allegation that the Plaintiff
must work
prudently with its money and is not entitled to squander
it. The exceptions constitutionality and the provisions of PFMA are
all
about getting clarity on which particular sections of the
legislation is referred to, to substantiate the allegations made.
Those
exceptions in my view cannot be upheld. The duty to plead
includes either to admit or deny an allegation made. The Defendant
does
not need a reference to a particular section or sub-section of
legislation to admit or deny the broad allegation that those acts
and
provisions oblige the Plaintiff to work sparingly and prudently with
its money. Reference to specific sections or sub-sections
can be
cleared up by way of amendment or, at best, by the method of
particulars of claim for the purposes of trial which comes
about
later. It certainly does not embarrass the Defendant at this stage if
specific sections or sub-sections are not made available
or referred
to.
7.
The same reasoning applies to the allegation that the
settlement was not agreed to or authorised by the relevant officials
in the
employ of the Defendant. If it is unclear, it is not a basis
for an exception but the allegation can simply be denied and in the
course of time clarified with reference to the particular section or
sub-sections of the particular legislation by means of a request
for
particulars of trial.
8.
I therefore found that such unclarities as there might
be, can be rectified by amplification or even amendment of the
particulars
of claim and are not valid grounds for exception to
set-aside the particulars of claim at this stage. Consequently, I
dismissed
the exception and, because the particulars of claim is
clearly not a textbook example of clarity, I ordered that each party
should
pay its own costs.
L
I VORSTER SC, AJ
Acting
Judge of the High Court
HEARD
ON: 22
April 2022
DECIDED
ON: 06
MAY 2022
For
Excipient/Defendant: Adv
JC Prinsloo with
pupil Ms V Van Niekerk
Instructed by A Wolmarans Inc
For
the Respondent/Plaintiff:
Adv Q Pelser SC
Instructed by Mponyana Ledwaba
Attorneys