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2022
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[2022] ZAECQBHC 11
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Hargey and Another v Moosagie (2188/2021) [2022] ZAECQBHC 11 (26 May 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, GQEBERHA
Case
No.: 2188/2021
Date
Heard: 14 April 2022
Date
Delivered: 26 May 2022
In
the matter between:
DR
TAJ
HARGEY
First Plaintiff
THE
OPEN
MOSQUE
Second Plaintiff
and
MOHAMMED
AADIEL
MOOSAGIE
Defendant
Judgment
RONAASEN
AJ
Introduction
[1]
In July 2021 the plaintiffs instituted
action against the defendant claiming damages from him on the
strength of allegations that
he had defamed them.
[2]
The particulars of claim, as originally
formulated, attracted a notice in terms of rule 23(1) of the Uniform
Rules in terms of which
the defendant identified various causes of
complaint which he contended rendered the particulars of claim vague
and embarrassing,
alternatively, that the particulars lacked the
averments necessary to disclose a cause of action.
[3]
The plaintiffs, in response, amended the
particulars of claim. The particulars of claim, as amended, again
resulted in the delivery
of a notice in terms of rule 23(1) by the
defendant, raising a number of similar causes of complaint pointing
to the particulars
remaining excipiable as suggested in the first
notice.
[4]
The second notice did not prompt the
plaintiffs to address the causes of complaint, resulting in the
defendant delivering an exception
to the particulars of claim in
terms of which it was contended, again, that the particulars were
vague and embarrassing, alternatively
did not contain the requisite
averments to sustain a cause of action, namely a claim for damages
arising from defamation. During
argument counsel for the defendant
abandoned the latter contention and relied only on the ground of
exception in terms of which
it was argued that the particulars of
claim were vague and embarrassing to the extent that the defendant
was unable to plead thereto.
The
grounds of exception
The
first exceotion
[5]
In paragraph 9 of the particulars of claim
the plaintiff avers that, during March-May 2021, the defendant
authored and broadcast
several WhatsApp (a social media messaging
platform) messages (“the messages”) concerning the
plaintiffs to various
other persons in a WhatsApp messaging group.
The messages, so it is contended, were widely distributed not only to
members of the
messaging group but also to third parties who would
receive the messages from members of the messaging group and the
defendant
would have known, or ought reasonably to have known, that
this would occur.
[6]
Paragraph 10 of the particulars claim
contains the allegation that the recipients of the messages would
know that they referred
to the plaintiffs.
[7]
The plaintiffs go on to contend in
paragraph 12 of the particulars of claim that the messages were
defamatory and were calculated
to cause the esteem in which the
plaintiffs were held by progressive-thinking persons in the global
society, and more especially
in the Muslim community, to be
diminished.
[8]
The defendant’s complaint is then
formulated to the effect that the abovementioned paragraphs of the
particulars of claim
are vague and embarrassing as they do not
identify:
8.1.
who the wider audience to whom the messages
were disseminated is;
8.2.
who read the messages;
8.3.
who the “right-thinking”
persons are;
8.4.
who is intended to fall within the wider
Muslim community in South Africa and beyond.
[9]
In summary, the defendant’s complaint
is that the abovementioned paragraphs in the particulars of claim are
vague and embarrassing
as they suffer from a lack of particularity,
which it is stated renders the particulars excipiable.
The
second exception
[10]
Paragraph 15 of the particulars of claim is
to the effect that the defendant, having broadcast the messages to
several recipients
in a WhatsApp group, which is social media
platform which allows a the dissemination of information such as the
messages to other
persons, the defendant intended, alternatively,
should reasonably have foreseen that the messages would be widely
published, thus
enhancing the damage to the plaintiffs’
reputation.
[11]
This paragraph, according to the defendant,
is vague and embarrassing as it contains insufficient factual
averments to support the
conclusions it seeks to make.
The
third exception
[12]
This complaint is addressed at paragraph 16
of the particulars of claim in terms of which the plaintiffs allege
that persons outside
the social media group to whom the messages were
published indeed picked up on the messages and that these persons, in
turn would
continue the dissemination of the messages to the
detriment of the plaintiffs.
[13]
Again the complaint is that the paragraph
is vague and embarrassing because of its lack of particularity as to
the identity of the
persons who allegedly repeated the messages, the
failure to identify more precisely the social media platform from
which the messages
were disseminated or the other social media
platforms which received the messages and further disseminated them.
The
fourth exception
[14]
This complaint states that the plaintiffs,
in paragraph 18.2 of the particulars of claim, aver that the second
plaintiff had a “prominent”
standing the Muslim
community. The word “prominent” is, however, not used in
the paragraph.
[15]
Here too it is the argument of the
defendant that the paragraph is vague and embarrassing as
insufficient particularity had been
furnished to establish the
alleged prominence of the plaintiffs.
The
fifth exception
[16]
In respect of this complaint the defendant
says that paragraph 19 of the particulars of claim is vague and
embarrassing as the plaintiffs
had failed to identify the persons who
had read the messages and understood the messages to refer to the
plaintiffs and that these
persons, in turn, had had the opportunity
to further disseminated the messages. Again the vague and
embarrassing epithet is attributed
to the paragraph because of an
alleged lack of particularity.
The
sixth exception
[17]
The six complaint, insequentially, refers
to paragraph 18.5 of the particulars of claim. In this paragraph the
plaintiffs allege
that the words attributed to the defendant and
referred to in the paragraph 16 were intended to draw false
conclusions regarding
the conduct of the plaintiffs referred to in
the words.
[18]
The defendant says that in the paragraph
concerned the plaintiffs have not stated what was false about the
conclusions drawn by
the defendant. This complaint is therefore also
addressed to an alleged lack of particularity.
The
seventh exception
[19]
In paragraph 21 of the particulars of claim
the plaintiffs aver that the defendant published the messages to
further his own agenda.
The defendant’s complaint is that the
plaintiffs, in the paragraph, have not particularised what the
defendant’s agenda
is.
Legal
principles
[20]
In
Trope v
South African Reserve Bank
1992 (3) SA
208
(D) at 210-211 it was held that an exception to a pleading on the
ground that it is vague and embarrassing involves a two-fold
consideration, namely whether:
20.1.
the pleading lacks particularity
to
the extent that it is vague
;
20.2.
the vagueness causes embarrassment of such
a nature that the excipient is prejudiced.
[21]
An exception that a pleading is vague and
embarrassing cannot be directed at a particular paragraph within a
cause of action. The
exception must go to the whole cause of action,
which must be demonstrated to be vague and embarrassing.
Jowell
v Bramwell-Jones and Others
1998 (1) SA
836
(WLD) at 899 G.
[22]
In
Jowell
it was stated that where a lack of particularity in a pleading
relates to mere detail, the remedy of the defendant is to plead
to
the averments made and to obtain the particulars he requires:
22.1.
either by means of the discovery/inspection
of documents in terms of the Uniform Rules; or
22.2.
by means of a request for particulars for
trial of those particulars which are strictly necessary to enable the
defendant to prepare
for trial.
[23]
The Uniform Rules provide different
remedies in rules 18 (read with rule 30) and 23. The presumption is
that they are not co-extensive,
but designed to deal with different
situations. Rule 18(4) is restrictive and sets out the bare minimum
required of a factual averment.
Rule 23, however, goes to a vagueness
and embarrassment which strikes at the whole of the cause of action
pleaded.
Jowell
at 902 D-E.
[24]
Jowell
at
902 F-G summarises the crucial distinction between rules 23 and 30
(the rule used to enforce compliance with rule 18), as follows:
24.1.
an exception that a pleading is vague and
embarrassing may only be taken when the vagueness and embarrassment
strikes at the root
of the cause of action as pleaded; whereas
24.2.
rule 30 may be invoked to strike out the
claim pleaded when individual paragraphs do not contain sufficient
particularity - it is
not necessary that the failure to plead
material facts goes to the root of the cause of action.
[25]
An attack on a pleading that it is vague
and embarrassing cannot be based on the mere averment that it is
lacking in particularity.
Jowell
at 902 H.
[26]
Again with reference to
Jowell
at 902 I-903 B, exceptions that pleadings are vague and embarrassing
must be approached, bearing in mind the following general
principles:
26.1.
minor blemishes are irrelevant;
26.2.
pleadings must be read as a whole; no
paragraph can be read in isolation;
26.3.
a distinction must be drawn between the
primary factual allegations which every plaintiff must make (the
facta probanda
)
and the secondary allegations upon which the plaintiff will rely in
support of his primary factual allegations (the
facta
probantia
);
26.4.
only facts are required to be pleaded. It
is unnecessary to plead conclusions of law.
Application
of principles
[27]
In general, applying the abovementioned
principles, it is clear that the exception was poorly formulated and
is ill-founded, as:
27.1.
it is directed at individual paragraphs in
the particulars of claim and does not address the whole of the cause
of action, namely
a claim for damages arising from defamation;
27.2.
it is founded soley on the averment that
the impugned paragraphs lack particularity;
27.3.
the complaints relate to a lack of
particularity, which lack of particularity if, indeed, it exists does
not render the particulars
of claim vague to the extent that the
dedefendant will not be able to plead thereto;
27.4.
the defendant’s remedy, if any, thus
lies rather in rule 18, read with rule 30.
[28]
In the paragraphs in the particulars of
claim underlying the exceptions:
28.1.
the elements of a claim for defamation are
clearly pleaded;
28.2.
the extent of the publication of the
alleged statements (the messages) are pleaded with sufficient
particularity. The lack of particularity
complained of by the
defendant does not in any way render the particulars of claim vague
and the defendant is in a position to
plead to the averments
concerned;
28.3.
the further dissemination of the alleged
defamatory material is clearly pleaded.
[29]
The facts as pleaded in the impugned
paragraphs do not establish a vagueness and embarrassment which
strikes at the whole cause
of action pleaded.
Order
[30]
Thus, I make the following order:
The exception is dismissed with
costs.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Appearances
:
Counsel
for the
plaintiff’s: Adv
I Lambrechts
Instructed
by: Herold
Gie Attorneys
c/o
Pagdens
Counsel
for the
defendant: Adv
L Ntsepe
Instructed
by: Yousha
Tayob Attorneys
c/o
Kuban Chetty Inc
Date
heard: 14
April 2022
Date
delivered: 26
May 2022