Summary of Judgment

1. Introduction

This was an exception application brought by the defendant to the plaintiff’s particulars of claim on the basis that they were vague and embarrassing and did not comply with the pleading requirements of the Uniform Rules of Court. The proceedings were interlocutory in nature and concerned whether the plaintiff’s claim, as pleaded, provided sufficient clarity for the defendant to plead.

The parties were Vox Telecommunications (Pty) Ltd as plaintiff and Bridge Collections (Pty) Ltd as defendant. The matter was heard in the High Court of South Africa (Gauteng Division, Pretoria) before Tlhapi J, with judgment delivered on 11 January 2022.

The procedural history relevant to the exception included that summons had been issued on 31 October 2018, followed by an application for summary judgment which was resisted. The defendant had previously served a notice in terms of Rule 30 and Rule 30A on 6 March 2019, and a notice of exception dated 25 June 2019 which included a complaint about vagueness and embarrassment, but that earlier exception was not prosecuted. The present exception was launched on 9 November 2020 and was preceded by notices of bar (including a second notice of bar on 22 October 2020).

The general subject-matter of the dispute at this stage was not the merits of the underlying claim itself, but whether the plaintiff’s pleadings adequately set out the material facts and quantification of a damages claim, and whether the plaintiff correctly identified and attached the contractual document relied upon.

2. Material Facts

The plaintiff’s particulars of claim sought payment of R939 630.21 from the defendant. The defendant’s exception alleged that the claim was inadequately pleaded in two main respects.

First, the defendant complained that the particulars of claim did not set out with sufficient clarity when the alleged indebtedness arose, how the amount claimed was calculated, and on what basis the amount was claimed. This complaint was grounded in alleged non-compliance with Rule 18(4) (requiring a clear and concise statement of material facts with sufficient particularity) and Rule 18(10) (requiring damages to be set out so the defendant can reasonably assess quantum).

Second, the defendant complained that the plaintiff’s particulars of claim referred to a “second agreement” dated 22 April 2015 said to be attached as “POC2”, but that the agreement attached as “POC2” appeared to be dated 22 April 2016. The court also noted a further feature of “POC2”, namely that the portion preceding “22 April 2015” was illegible and it was not clear who the signatories were. The document reflected that on 22 April 2016 an “Accountant” and “Sales Manager” affirmed authorisation to enter into the agreement.

A further material procedural fact was that the plaintiff opposed the exception and delivered a notice contending that the defendant had failed to comply with Rule 23(1)(a). The plaintiff’s position was that, because the defendant had not given a proper Rule 23(1)(a) notice within the time period and had not afforded the plaintiff 15 days to remove the cause of complaint, the exception was fatally defective.

It was common cause that although there had been earlier procedural steps (including a Rule 30/30A notice and an earlier exception notice in 2019 that included the vagueness complaint), the present exception of 9 November 2020 was not preceded by a fresh Rule 23(1)(a) notice directed at the present exception.

3. Legal Issues

The court was required to determine, first, whether the defendant’s exception should be entertained and upheld in circumstances where the defendant had not complied with the usual preliminary requirement in Rule 23(1)(a) to give notice and an opportunity to remove the cause of complaint before delivering an exception on the ground that a pleading is vague and embarrassing.

Second, the court had to determine whether the plaintiff’s particulars of claim were in fact vague and embarrassing, particularly in relation to the pleading of (a) the basis and computation of the amount claimed and (b) the identification and dating of the “second agreement” attached as “POC2”, such that the defendant would be prejudiced in pleading.

Third, the court had to decide the appropriate order as to costs, given the broader procedural history and the court’s findings regarding the parties’ conduct.

These issues primarily involved the application of procedural law to the facts (compliance with the Rules and the adequacy of pleading), and an evaluative judgment concerning whether to allow the exception to advance the progress of the matter notwithstanding procedural non-compliance.

4. Court’s Reasoning

The court identified Rule 23(1)(a) as ordinarily requiring a party who intends to except on the basis that a pleading is vague and embarrassing to first, within the time allowed, deliver a notice affording the opponent 15 days to remove the cause of complaint. The court treated this as the usual preliminary step before an exception is delivered, and noted that the party contemplating an exception must have regard to the stipulated time periods and sequence.

However, the court then considered the particular chronology. The defendant had served an earlier notice in March 2019 (under Rules 30 and 30A) and had followed it with a notice of exception in June 2019 in which the relevant vagueness complaint appeared (as “complaint 8”), although that earlier exception was not prosecuted. On the court’s assessment, the plaintiff was not taken by surprise by the nature of the complaint: the plaintiff was aware of the issue of vagueness and embarrassment that had been raised previously and could have addressed it when amending its particulars of claim.

Against that background, the court posed the question of how serious the defendant’s failure was in not taking the preliminary Rule 23(1)(a) step immediately prior to the present exception. The court concluded that, given the plaintiff’s prior knowledge of the complaint and the fact that the relief sought required “nothing more than removing the cause of complaint”, the exception should be allowed in the interests of progress.

In dealing with the substance of the exception, the court accepted that there was insufficient clarity in the plaintiff’s pleading. The court specifically observed that, in relation to “POC2”, the document’s dating and legibility created uncertainty, and it was not clear whether the reference to 22 April 2015 was erroneous. The court emphasised that the plaintiff had to plead the facts relied upon clearly. It also accepted the defendant’s contention (as advanced in argument) that the defendant would be prejudiced in pleading if there was no clarity concerning the details underpinning the cause of action.

On costs, the court declined to attribute responsibility for procedural delay at that stage, noting that summons had been issued in 2018, summary judgment proceedings followed, and “various processes” occurred thereafter, but the court did not have all the facts to determine which party was dilatory. The court further took into account that although a Rule 23(1)(a) notice is ordinarily required, the plaintiff had knowledge of the issues and could have resolved them by amending. For those reasons, the court decided to make no costs order in respect of the exception.

5. Outcome and Relief

The court upheld the defendant’s exception. The plaintiff was ordered to amend its particulars of claim within 15 days of service of the order. The court made no order as to costs.

Cases Cited

No cases were cited in the judgment.

Legislation Cited

No legislation was cited in the judgment.

Rules of Court Cited

Uniform Rules of Court, Rule 18(4).

Uniform Rules of Court, Rule 18(10).

Uniform Rules of Court, Rule 23(1)(a).

Uniform Rules of Court, Rule 30.

Uniform Rules of Court, Rule 30A.

Held

The court held that the defendant’s exception should be upheld because the plaintiff’s particulars of claim lacked sufficient clarity and particularity, including as to the basis and calculation of the amount claimed and the identification of the contractual document (“POC2”), resulting in prejudice to the defendant in pleading.

The court further held that although compliance with Rule 23(1)(a) is ordinarily a necessary preliminary step for an exception on vagueness and embarrassment, the plaintiff had prior knowledge of the complaint from earlier proceedings and could have addressed the issues by amendment. In the interests of progress, the exception was allowed notwithstanding the absence of a fresh Rule 23(1)(a) notice immediately preceding the exception.

The plaintiff was directed to amend its particulars of claim within 15 days, and no costs order was made.

LEGAL PRINCIPLES

The judgment applied the principle that a pleading must contain a clear and concise statement of material facts with sufficient particularity to enable the opposing party to plead, and that a plaintiff claiming damages must set out damages in a manner enabling the defendant to reasonably assess quantum, as reflected in Rules 18(4) and 18(10).

The judgment further applied the procedural principle that an exception alleging that a pleading is vague and embarrassing is ordinarily preceded by a Rule 23(1)(a) notice affording the opponent an opportunity to remove the cause of complaint within 15 days, but that the court may, in context and as a matter of case management and fairness, allow an exception to proceed where the opponent had prior knowledge of the complaint and where upholding the exception would facilitate progress through amendment.

The judgment also reflected that costs in interlocutory matters may be withheld where the court cannot fairly determine responsibility for delay or dilatoriness on the available material, and where both parties’ conduct and procedural history justify a neutral costs position.