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[2022] ZAECPEHC 3
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Kenny v Seaman N.O (2062/2020) [2022] ZAECPEHC 3 (18 January 2022)
IN THE HIGH
COURT OF SOUTH AFRICA
EASTERN CAPE
LOCAL DIVISION, PORT ELIZABETH
CASE
NO. 2062/2020
In
the matter between:
DEBORAH
LEIGH
KENNY
Plaintiff
and
CRAIG
ANDREW SEAMAN
N.O.
Defendant/Excipient
JUDGMENT
RUGUNANAN,
J
[1]
The
plaintiff and the defendant are siblings and are the children of the
deceased Moira Elizabeth Seaman. They are the nominated
testamentary
beneficiaries in equal shares of the deceased’s estate.
The plaintiff
instituted this action against the defendant
in his official capacity as trustee for the time being of the Des
Seaman Family Trust (‘the Trust’) in which she claims
payment from the Trust of the amount of R1 198 258,63
together with interest and costs.
[2]
The
plaintiff’s cause of action thereon is that the Trust, at all
times material to the institution of the action, owed the
deceased
the amount of R2 396 517.26 repayable on demand. The First
and Final Liquidation and Distribution Account of
the deceased’s
estate had lain open for inspection, free of objection, in accordance
with section 35 of the Administration
of Estates Act 66 of 1965 (‘the
Act’). The estate account, prepared by the executors of the
deceased’s estate,
reflects that the plaintiff inherits
R1 198 258.63 being 50% the deceased’s loan account
in the Trust. The plaintiff
claims that this amount representing
one-half of the
dominium
in the deceased’s claim against the Trust vests in her which
amount, despite demand, remains unpaid.
[3]
This
judgment deals with exceptions raised by the defendant against the
plaintiff’s particulars of claim on the grounds that
it does
not make necessary averments to disclose a cause of action
alternatively, that it is vague and embarrassing.
APPLICABLE LEGAL PRINCIPLES
[4]
A
general rule is that pleadings must be lucid, logical and
intelligible
[1]
.
Pleadings serve the purpose of bringing clarity, to the notice of the
court and to the parties in an action, the issues upon which
reliance
is to be placed. This objective can only be attained when parties
state their case with precision, the degree of which
depends on the
circumstances of each case
[2]
.
Rule 18(4) of the Uniform Rules of Court serves as a guideline for
the careful drafting of a pleading to achieve this objective.
The
rule requires that 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.”
[5]
The
approach to be adopted to an exception that a pleading is vague and
embarrassing is that the
onus
is on the excipient to show vagueness amounting to embarrassment and
embarrassment amounting to prejudice.
A
pleading is vague if it is either meaningless or capable of more than
one meaning; it is embarrassing if it cannot be gathered
from it what
ground is relied on by the pleader.
[3]
An excipient who alleges that a summons does not disclose a cause of
action must establish that, upon any construction of the particulars
of claim, no cause of action is disclosed.
[4]
In considering an exception that a pleading does not sustain a cause
of action, the court will accept, as correct, the allegations
pleaded
by the plaintiff to assess whether they disclose a cause of action.
[6]
The
defendant’s notice of exception contains several multifaceted
grounds. Pragmatism dictates that they be dealt with under
the
following broad categories.
LOCUS STANDI
[7]
A
deceased estate has no legal
persona
and consists of an aggregate of assets and obligations. The estate
vests in the executor in the sense that
dominium
of the assets temporarily passes to the executor in a representative
capacity. It is only the executor who has the power to deal
with the
totality of the rights and obligations in a deceased estate. Although
an inheritance vests in an heir, he/she does not
upon the death of
the testator acquire ownership in the assets of the deceased, but
merely has a vested claim against the executor
for payment or
delivery once the liquidation and distribution account has been
settled.
[8]
The
above prescripts were considered and dealt with in
Booysen
v Booysen
2012 (2) SA 38
(GSJ) where the court reflected on the authorities and
reference works on the question of
locus
standi
in a deceased estate, and after a careful analysis concluded that the
executor only has the
locus
standi
to sue or be sued. It is unnecessary for me to repeat the reasoning
of the court or to survey once again the material to which
it
referred. Suffice to say that, having regard thereto, I am in
respectful agreement with its reasoning and agree with its
conclusion.
[9]
In
argument it was asserted for the plaintiff that the right, title and
interest of the estate in and to the amount owning by the
Trust to
the deceased is derived from a cession agreement effected by the
executors of the estate, which cession she accepted.
This is not
pleaded. The plaintiff’s heads of argument indicate that the
concept of the cession is derived from the notation
“
not
reduced to cash”
in the estate account, where the loan account is reflected as an
asset in the deceased’s estate. The notation leaves it open
to
speculate that there may be any number of reasons why the loan has
not been reduced to cash. If one of the reasons therefor
may be
ascribed to a cession then this ought to have been pleaded or perhaps
qualified by the executors by way of an appropriate
footnote in the
estate account.
[10]
The
following submission extrapolated directly from the plaintiff’s
heads of argument was correctly criticised by counsel
for the
defendant as being factually incorrect and legally unsustainable
(parenthetically I add that counsel who appeared for the
plaintiff
was not the author thereof):
“…
it
was not necessary for the plaintiff to plead that a deed or agreement
of cession had been executed in her favour by the executors.
The
factual basis upon which the rights in and to the loan were
transferred to and vested in her by the process and conclusion
of the
administration of the relevant estate has been sufficiently pleaded
and the transfer took place as a matter of law as a
result of that
process.”
[11]
It
is mystifying that nowhere in the particulars of claim (nor in the
estate account attached thereto), is express reference made
to a
cession agreement at all. By all estimates, it has been conceived in
abstraction.
Ex
facie
the particulars of claim, and where there is no averment of a
cession, it cannot be discerned if the right, title and interest
contended for occurred by operation of law.
[12]
In
support of the submission proffered in the plaintiff’s heads of
argument, much store was placed on
Elizabeth
Nursing Home (Pty) Ltd v Cohen and Another
1966 (4) SA 506
(D). In that case it was found that it was not
legally incompetent for a duly appointed executor to cede to the
heirs a right of
action constituting a portion of the assets in a
deceased estate. What distinguishes that case from the present is
that its finding
ensued in circumstances where the plaintiffs had, in
their particulars of claim, specifically averred a cession of right
in their
favour.
[13]
It
is fundamental to the judicial process that the material facts which
underlie the case a litigant wishes to advance must be pleaded.
[5]
Because the relevant material fact contended for by the plaintiff has
not been specifically pleaded, my perception of the particulars
of
claim is that it is embarrassing - and until such time as the
relevant fact has been pleaded, the plaintiff has no right of
recourse against the Trust. In the circumstances I am unable to hold
that the particulars of claim do not disclose a cause of action.
DEMAND
[14]
As
part of the plaintiff’s cause of action it is pleaded that the
loan by the deceased to the Trust was repayable on demand.
[6]
When a loan is repayable on demand the general rule is that it is
repayable immediately upon conclusion of the contract.
[7]
The further deficiency in the particulars of claim lies in the
absence of averments as to when the loan was made and when the
contract was concluded. This circumstance does not render the
particulars of claim vague and embarrassing, nor does it result in
same not disclosing a cause of action. It seems to me rather that it
permits the application of rule 30 which is an entirely different
proceeding but which nonetheless implicates rule 18(4).
THE
NATIONAL CREDIT ACT (“NCA”)
[15]
Although
the exception under this head was abandoned, some comment is
necessary. The point was canvassed in heads of argument by
counsel
for the defendant. These heads were filed on 28 July 2021. Relying on
Baliso
v Firstrand Bank Ltd t/a Wesbank
2017
(1) SA 292
(CC), the defendant’s complaint is that the
particulars of claim are vague and embarrassing where no averments
are made as
to whether there has been compliance with the provisions
of the NCA or whether its provisions are excluded.
[16]
In
that case the applicant excepted to the particulars of claim for the
reason that it should have contained allegations of notice
by
registered mail in a manner similar to those referred to
Sebola
[8]
and
Kubyana
[9]
.
The latter cases established that, in respect of notice under section
129(1)(b)(i) of the NCA, proof that the notice would probably
have
come to the attention of a reasonable consumer, is required.
[17]
My
understanding of
Baliso
,
is that a summons or pleading may well be excipiable if it does not
meet the
Sebola /
Kubyana
standard.
[10]
This is not second-guessed, but if regard is had to the facts as
pleaded in the particulars of claim, I am in agreement with the
submission in the plaintiff’s heads of argument that there is
no duty to make the averments as contended by the defendant.
The
present matter is clearly distinguishable from
Baliso
and the defendant’s reliance thereon is misplaced. If I am
mistaken in my conclusion, it is nevertheless open to the defendant
to raise the issue of non-compliance with the NCA in a self-contained
special plea. This seems to be a sensible course to adopt
in the
light of the fact that the defendant, in his notice of exception,
avers that:
“
The
Plaintiff seeks to enforce the terms of a credit agreement between
the Trust and the deceased.”
CONCLUSION
[18]
A
final aspect concerns an appropriate costs order. The defendant has
been substantially successful, not on the ground that the
particulars
of claim do not make out a cause of action, but predominantly on the
basis that they are embarrassing since the claim
is not postulated on
the assertion of a cession of rights, and where rule 18(4) has not
been complied with.
[19]
There
is another aspect pertaining to the matter, which although not
pertinently raised, was self-evident during the conduct of
the
proceedings. This relates to the issue concerning the NCA, which, in
my view, was misguided and was in all probability a tactical
ruse.
Its belated abandonment during argument simply meant that it was
unsustainable. Rule 15A of the Joint Rules of Practice for
the High
Courts of the Eastern Cape enjoins parties to file a practice note
which shall
inter
alia
set out “
the
issue(s) to be decided”
.
The rule, in addition, stipulates that a failure on the part of a
practitioner to comply therewith,
“
shall
entitle the court hearing the matter to make any appropriate order
including an order disallowing the party or its representative
to
recover a portion of its costs”.
[20]
It
is nowhere apparent in the defendant’s practice note filed on 5
August 2021 that any of the issues for decision were identified.
Counsel for the plaintiff came to court being fully prepared to argue
the matter. She was instructed to do so on the basis of what
was set
out in the plaintiff’s heads of argument wherein the issues
raised in opposition to each of the grounds of exception
raised by
the defendant were fully canvassed. Apart from occasioning
inconvenience and additional preparation time with attendant
costs
for a litigant, there is another perspective that deserves mention.
Court time, including time expended by a judicial officer
in
preparing for a matter, is a valuable commodity in the administration
of justice. It is necessary for the attention of a judicial
officer
to be directed well beforehand to the properly identified issues for
determination. That is the rationale of the practice
directive and it
is incumbent on the legal representatives as role players in the
administration of justice to ensure that this
objective is achieved.
Compliance with the relevant practice directive in opposed motions is
not a mere formality. It requires
proper consideration.
[21]
In
the circumstances it appears eminently reasonable that two-thirds of
the costs of the proceedings be awarded in favour of the
defendant,
the other third being forfeited for the reasons set out hereinabove.
[22]
The
order below presents the plaintiff - and by implication both parties
- the opportunity for ensuring that their pleadings will
set the
agenda for addressing the essential issues for determination and thus
permit a proper ventilation thereof.
[23]
Accordingly,
I make the following order:
(i)
The
defendant’s exception is upheld to the extent set out in this
judgment.
(ii)
The
plaintiff is granted leave to amend the particulars of claim to
remedy the defect/s, if so advised; such amendment shall be
effected
within thirty (30) days from the date hereof.
(iii)
The
plaintiff is ordered to pay two-thirds of the defendant’s
costs, either as agreed or taxed.
____________________________
S.
RUGUNANAN
JUDGE
OF THE HIGH COURT
Date
heard: 19 August
2021
Date
delivered: 18 January 2022
Appearances:
For
the Plaintiff:
I. Bands
Instructed
by:
BLC ATTORNEYS.
Plaintiff’s Attorneys
4 Cape Road
Gqeberha
(Ref: Mr. L. Schoeman)
Tel: 041- 506 3700
Email:
lschoeman@blclaw.co.za
For
the Defendant: K. L. Watt
Instructed
by:
PAGDENS
ATTORNEYS
Defendant’s Attorneys
18 Castle Hill
Gqeberha
(Ref: Mr. J. Eksteen)
Tel: 041- 502 7200
Email:
helend@pagdens.co.za
This
judgment was handed down electronically by circulation to the
abovementioned legal representatives by email. The date and time
for
hand-down is deemed to be 09h30 on 18 January 2022.
[1]
Trope v South African Reserve Bank and Another
1992 (3) SA 208
(T) at 210H
[2]
Imprefed (Pty) Ltd v National Transport Commission
1993 (3) SA 94
(AD) at 107C-E
[3]
Lockhat and Others v Minister of the Interior
1960 (3) SA 765(D)
at 777B-H
[4]
Fairoaks Investment Holdings (Pty) Ltd and Another v Olivier and
Others
[2008] ZASCA 41
;
2008 (4) SA 302
(SCA) at paragraph
[12]
[5]
Buchner and Another v Johannesburg Consolidated Investment Co Ltd
1995 (1) SA 215
(T) at page 216 I– J)
[6]
Particulars of claim, paragraphs [4], [9] and [10]
[7]
Trinity Asset Management v Grindstone
2018 (1) SA 94
(CC) at
123 C
[8]
Sebola and Another v Standard Bank of SA Ltd and Another
2012
(5) SA 142 (CC)
[9]
Kubyana v Standard Bank of SA Ltd
2014 (4) BCLR 400 (CC)
[10]
Baliso
paragraphs [28] and [32]