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[2022] ZAKZPHC 83
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Kobusch and Others v Whitehead (5217/2022P) [2022] ZAKZPHC 83 (15 December 2022)
FLYNOTES:
EXCEPTION INSTEAD OF PLEA
Civil
procedure – Plea – Notice of bar – Exception –
Whether defendant’s notice of exception
in terms of Rule
23(1)(a) and 23(2)(a) was a valid response to the notice of bar –
Time periods applicable.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
REPORTABLE
CASE
NO: 5217/2022P
In
the matter between:
ALEXIA
KOBUSCH
FIRST PLAINTIFF
WAYNE
KOBUSCH
SECOND
PLAINTIFF
WOOD-MOORE
MANOR CC
THIRD
PLAINTIFF
and
WENDY
WHITEHEAD
DEFENDANT
JUDGMENT
MADONDO
AJP
Introduction
[1]
The plaintiffs are suing the defendant for damages allegedly
suffered, arising out
of the breach of a contract entered into
between the first and second plaintiffs and the defendant; the
delictual breach of a legal
duty of care that the defendant owed to
the plaintiffs; damages that the first plaintiff sustained as result
of the defendant’s
defamatory statements; and for the payment
of restitutional damages to the first to third plaintiffs for the
patrimonial loss the
plaintiffs suffered as a result of the
diminished market value of horses on various dates during the years
2021 and 2022.
Parties
[2]
The first plaintiff is Mr Alexia Kobusch, a major male chartered
accountant of the
United Arab Emirates.
[3]
The second plaintiff is Mr Wayne Kobusch, a major businessman of the
United Emirates.
[4]
The third plaintiff is Wood-Moore Manor CC, a close corporation duly
registered and
incorporated in accordance with the provisions of the
Close Corporations Act 69 of 1984
, having its registered office at
569 Gallop Lane, Witpoort, Midrand. The first and second plaintiffs
are its members. The first
to third plaintiffs are hereinafter
referred to as ‘the plaintiffs’.
[5]
The defendant is Ms Wendy Whitehead, a major female professional
racehorse trainer,
who carries on business as a sole proprietor under
the name and style of ‘Wendy Whitehead Racing Stables’,
having her
principal place of business at the Summerveld Training
Centre, JB McIntosh Drive, Summerveld, Shongweni, Durban.
Factual
background
[6]
On 22 April 2022, the plaintiffs issued a combined summons against
the defendant,
and the sheriff served it personally on the defendant
on 25 April 2022. On 5 May 2022, the defendant delivered her notice
of intention
to defend the action. A plea by the defendant was, in
terms of Uniform
rule 22(1)
, due for delivery by 2 June 2022. The
defendant did not deliver her plea, as she was required to do.
[7]
After the defendant’s failure to deliver her plea by 2 June
2022, the plaintiffs
on 8 June 2022 delivered a notice of bar in
terms of Uniform
rule 26
to the defendant, requiring the defendant to
deliver her plea within five days of receipt of the notice, failing
which the defendant
would be in default of filing her plea and,
consequently,
ipso
facto
barred from doing so. The five-day period expired on 15 June 2022.
[8]
Instead of delivering a plea, the defendant on 9 June 2022 delivered
a notice to except
to the plaintiffs’ particulars of claim in
terms of Uniform
rule 23(1)
and a notice to strike out in terms of
Uniform
rule 23(2)
, calling upon the plaintiffs to remove such causes
of complaint within 15 days. The defendant delivered an exception on
two bases,
namely that the plaintiffs’ particulars lacked
averments necessary to sustain a cause of action, and, that the
pleading was
vague and embarrassing.
[9]
On 23 June 2022, in response to the defendant’s notice to
except and notice
to strike out, the plaintiffs delivered a notice of
an irregular step in accordance with Uniform
rule 30(2)
(b)
,
calling upon the defendant to remove the cause of complaint set forth
therein within ten days. The 10-day period expired on 7
July 2022.
[10]
The causes of complaint set out in the plaintiffs’
rule 30
notice are the following:
(a)
The defendant’s notice in terms of
rule 23
was not delivered
within 10 days of receipt of the summons as determined in
rule
23(1)
(a)
and
rule 23(2)
;
(b)
The defendant’s rule 23 notice is neither a plea nor an
exception provided for in
rule 22(1)
; and
(c)
The delivery of the
rule 23
notice consequently constituted an
irregular step and the defendant is
ipso
facto
barred from filing a pleading.
[11]
On 6 July 2022, the defendant delivered an exception. On 7 July 2022,
the defendant set down
the exception for hearing in terms of
rule
6(5)
(f)
. On 25 July 2022, the plaintiffs delivered the
irregular step application and supporting affidavit in terms of
Uniform
rule 30.
In such application, the plaintiffs sought an order:
(a)
Declaring the defendant’s notice to remove the cause of
complaint in terms of
rule 23(1)
(a)
and her notice to strike
out in terms of
rule 23(2)
, dated 9 June 2022, irregular;
(b)
That the defendant’s rule 23 notice be set aside; and
(c)
That the defendant pays the costs of the application.
[12]
The plaintiffs’ contention is that the defendant’s rule
23 notice constitutes an
irregular step and does not comply with the
requirements of Uniform
rule 23(1)
(a)
and
rule 23(2)
(a)
on the ground that the defendant failed to serve her
rule 23
notice
and a notice to strike out within the peremptory time limits
prescribed by
rule 23(1)
(a)
and
23
(2)
(a)
,
respectively. Consequently, the plaintiffs seek an order setting
aside the
rule 23
notice as an irregular step.
Issues
[13]
The issues raised by the pleadings and argument in this matter are:
(a)
Whether the defendant’s notice of exception brought in terms of
rule 23(1)
(a)
and
23
(2)
(a)
is a valid response to the
notice of bar in terms of
rule 26
;
(b)
Whether the notice of exception and the exception were out of time;
and
(c)
Whether the plaintiffs’ particulars of claim are excipiable.
Analysis
Notice
of exception
[14]
Under this heading, I am asked to determine whether an exception in
its generic form is an appropriate
reply to a notice of bar. The
question whether a notice of exception is a proper response to a
notice of bar has been the subject
of determination by various
divisions, save for KwaZulu-Natal, and there has been a difference of
judicial opinion in this regard
in the other provinces.
[15]
In
McNally
NO v Codron and others
,
[1]
Yekiso J took the view that the notice of exception itself is not a
plea whereas the exception is a plea. He went on to state that
while
filing an exception is a proper response to the notice of bar, a
notice to except is not.
[2]
[16]
In
Hill
NO v Brown
,
[3]
Rogers J held a
rule 23(1)
(a)
notice not to be a response to a notice of bar. The defendant, if he
wishes to oppose the case, will have, on good cause shown,
to apply
in terms of
rule 27
to have the bar lifted.
[4]
This case was cited with approval in
Van
Zyl NO and another v Smit.
[5]
[17]
In
Felix
and another v Nortier NO and others (2)
,
[6]
the court held that the filing of a notice of exception, which is a
peremptory requirement where it is alleged that the pleading
is vague
and embarrassing, is permitted. Leach J held that a defendant is
entitled to file a notice of exception upon receipt of
bar.
[7]
[18]
In
Tuffsan
Investments 1088 (Pty) Ltd v Sethole and another,
[8]
Van der Westhuizen AJ subscribed to the findings arrived at in
Felix
and in
Landmark
Mthatha
with regard to a notice of exception being a pleading and held:
‘
25. .
. . To hold the contrary, as in
McNally,
supra
,
would disentitle a party after the initial period of 20 days within
which to file an exception where the pleading is vague and
embarrassing to thereafter take such an exception. Such party
would have difficulty in pleading to the vague and embarrassing
allegations. It is trite that the very purpose of pleadings is to
crystallize the issues in dispute.
26. It
follows that the defendants were entitled to serve a notice in terms
of
Rule 23(1)
within the period allotted in the notice of bar.
’
(Footnote
omitted.)
[19]
In
Steve’s
Wrought Iron Works v Nelson Mandela Metro,
[9]
Goosen J also deviated from
McNally
which
‘
precludes
a party who intends to object to a pleading on the basis that it is
vague and embarrassing from taking such exception
upon receipt of a
notice of bar unless that party had filed such notice of intention to
except within the initial period allowed
for the filing of a plea.’
Goosen
J went on to hold that ‘[s]uch construction of
rule 23(1)
. . .
would defeat the purpose to be served by the process of excepting to
a pleading’.
[10]
[20]
It has been held that
‘
where
a defendant, in response to a notice of bar, delivers an exception,
he has taken the next procedural step in the matter
and has thus
complied with the demand made in the notice on pain of bar. In this
regard, it has been held that an exception is
in fact a pleading and
thus falls squarely within the wording of
rule 26
.’
[11]
(Footnote omitted.)
[21]
‘
Rule 23
prescribes the form of the exception as a
pleading’.
[12]
An
exception is a legal objection to a defect in the opponent’s
pleading.
[13]
‘The
object of an exception is to dispose of the case or a portion thereof
in an expeditious manner, or to protect a party
against an
embarrassment which is so serious as to merit the costs even of an
exception.’
[14]
[22]
‘An exception should be dealt with sensibly and not in an
over-technical manner’.
[15]
‘An over-technical approach should be avoided because it
destroys the usefulness of the exception procedure, which is
[designed]
to weed out cases without legal merit’.
[16]
An exception may be taken to protect oneself against
embarrassment.
[17]
[23]
Particulars of claim that do not disclose a cause of action, and
which are vague and embarrassing,
do not permit a defendant to plead
as required in terms of the Uniform rules. The effect of such
particulars of claim renders the
defendant unable to plead
effectively to them, which defeats the purposes of Uniform
rules 18
and
22
. Defences must be pleaded separately and distinctly as
separate causes of action. Particulars of claim that lack the
necessary
averments to sustain a cause of action and those that are
vague and embarrassing, do not allow the defendant to achieve such
objective.
In such circumstances, an exception is a solution and is
inevitable. Disallowing a notice of exception or an exception, in the
circumstances, would defeat the purpose of the relevant rules.
[24]
Rule 22(2)
requires a ‘
defendant
to give a fair and clear answer to every point of substance raised by
the plaintiff in his declaration or particulars
of claim, by frankly
admitting or explicitly denying (or confessing and avoiding) every
material matter alleged against him’
.
[18]
[25]
This objective cannot be achieved if the particulars of claim lack
averments necessary to sustain
a cause of action or where they are
vague and embarrassing.
Rule 22(3)
makes it clear that every
allegation of fact in the combined summons or declaration, which is
not denied or admitted in the plea,
shall be deemed to be admitted.
[26]
It has been held that:
‘
If
a pleading both fails to comply with the provisions of
rule 18
and is
vague and embarrassing, the defendant has a choice of remedies: he
may either bring an application in terms of
rule 30
to have the
pleading set aside as an irregular step, or raise an exception in
terms of
rule 23(1).
’
[19]
(Footnotes omitted.)
If
the fact of
non-locus
standi
in judicio
appears
from the summons, ‘the defendant is entitled to except to the
summons on the ground that no cause of action is disclosed’.
[20]
If a party is of the opinion that his opponent has failed to remove
the cause of complaint, he or she is entitled within ten days
after
receipt of his or her opponent’s reply to his or her notice to
deliver his exception. However, ‘he is not entitled
to except
and at the same time to apply in terms of
rule 30(1)
for his
opponent’s reply to his notice to be struck out’.
[21]
[27]
‘If an exception will have the effect of putting an end to the
action it is a party’s
duty to except, and not wait until the
trial before raising the point in issue’.
[22]
An exception, in my view, is an act, which advances the proceedings
one stage nearer to completion, and so is a notice of
exception, particularly, when it is peremptorily filed as a precursor
to the filing as an exception.
[28]
In this matter, when the defendant in response to a notice of bar
delivered a
rule 23(1)
notice, she took the next procedural step in
the matter and has thus complied with the Uniform rules. In the
premises, the defendant’s
rule 23(1) notice constituted a
proper response to the notice of bar, except where it is contended
that the pleading was vague
and embarrassing and the notice of
exception in question has not within 10 days of the receipt of a
combined summons been filed,
as prescribed by
rule 23(1)
(a)
and
rule 23(2)
(a)
.
Was
the notice of exception and the exception out of time?
[29]
Rule 22(1)
provides:
‘
(1)
Where
a defendant has delivered notice of intention to defend, he shall
within 20 days after the service upon him of a declaration
or within
20 days after delivery of such notice in respect of a combined
summons, deliver a plea with or without a claim in reconvention,
or
an exception with or without application to strike out
.’
[30]
In terms of
rule 22(1)
, the defendant in the present matter was
required to file her plea within 20 days of the delivery of her
notice of intention to
defend. The defendant failed to file her plea
during the period allowed, and, consequently, the plaintiffs issued a
notice of bar
in terms of
rule 26
, barring the defendant from filing
any further plea or process.
[31]
The plaintiffs contend that the 31-day period taken by the defendant
to serve her
rule 23
notice constitutes a substantial degree of
non-compliance with
rule 23(1)
(a)
and
rule 23(2)
(a)
,
regard being had to the disproportionate 31-day period in relation to
the reasonable 10-day period afforded to the defendant in
terms of
rule 23.
The plaintiffs, accordingly, submit that the degree of the
defendant’s non-compliance with
rules 23(1)
(a)
and
rule 23(2)
(a)
gives rise to the inference that the defendant recklessly disregarded
the strict time periods provided therein.
[32]
Uniform
rule 23(1)
and (2) provides that:
‘
23
Exceptions and applications to strike out
(1)
Where any pleading is vague and embarrassing, or lacks averments
which are necessary to sustain an action
or defence, as the case may
be, the opposing party may, within the period allowed for filing any
subsequent pleading, deliver an
exception thereto and may apply to
the registrar to set it down for hearing within 15 days after the
delivery of such exception:
Provided that—
(
a
)
where a party intends to take an exception that a
pleading is vague and embarrassing such party shall, by notice,
within 10 days of receipt of the pleading, afford the party
delivering the pleading, an opportunity to remove the cause of
complaint
within 15 days of such notice; and
(
b
)
the party excepting shall, within 10 days from the
date on which a reply to the notice referred to in paragraph
(
a
) is received, or within 15 days from which such reply
is due, deliver the exception.
(2)
Where any pleading contains averments which are scandalous,
vexatious, or irrelevant, the opposite party
may, within the period
allowed for filing any subsequent pleading, apply for the striking
out of the aforesaid matter
,
and may set such application
down for hearing within five days of expiry of the time limit for the
delivery of an answering affidavit
or, if an answering affidavit is
delivered, within five days after the delivery of a replying
affidavit or expiry of the time limit
for delivery of a replying
affidavit, referred to in
rule 6
(5) (
f
)
:
Provided
that—
(
a
)
the party intending to make an application to
strike out shall, by notice delivered within 10 days of receipt
of
the pleading, afford the party delivering the pleading an opportunity
to remove the cause of complaint within 15 days of delivery
of the
notice of intention to strike out; and
(
b
)
the court shall not grant the application unless
it is satisfied that the applicant will be prejudiced in the
conduct
of any claim or defence if the application is not granted.
’
Pleading
not disclosing a cause of action
[33]
In terms of
rule 23(1)
an exception brought on the ground that a
pleading lacks averments necessary to sustain an action or defence,
may be filed within
the period allowed for the filing of any
subsequent pleading. In the case of an exception on the ground that a
pleading is vague
and embarrassing,
rule 23(1)
(a)
must be complied with before an exception on that ground could be
delivered in terms of
rule 23(1)
(b)
.
In the absence of any condonation for the late filing of the notice
of exception on the ground that the pleading is vague and
embarrassing, such a notice constitutes an irregular step.
[34]
The time periods within which pleadings subsequent to a declaration
or particulars of claim must
be delivered are dealt with under
rule
22
(plea) and
rule 24(1)
(claim in reconvention). If a defendant
intends to deliver an exception to the plaintiff’s particulars
of claim, it must
do so within the period allowed for a plea,
otherwise it will be out of time. The court may on good cause shown,
extend the period
for the delivery of the plea.
[23]
[35]
Failure to deliver a plea within the time stated does not entail an
automatic bar. Since an exception
is a pleading, a notice of bar in
terms of
rule 26
is required before the plaintiff can object to an
exception on the ground that it was delivered out of time.
[24]
Rule 26
provides:
‘
26.
Failure
to deliver pleadings – barring
Any
party who fails to deliver a replication or subsequent pleading
within the time stated in
rule 25
shall be
ipso
facto
barred.
If any party fails to deliver any other pleading within the time laid
down in these rules or within any extended time allowed
in terms
thereof, any other party may by notice served upon him require him to
deliver such pleading within 5 days after the day
upon which the
notice is delivered. Any party failing to deliver the pleading
referred to in the notice within the time therein
required or within
such further period as may be agreed between the parties shall be in
default of filing such pleading, and
ipso
facto
barred.
. .
’
[36]
Mr Crampton, for the plaintiffs, argued that the defendant did not
take any action within the
five-day notice of bar and that she
consequently became
ipso
facto
barred,
which meant that she was not permitted to proceed with the exception.
The defendant therefore could not proceed with the
exception without
having obtained condonation, as she filed her notice of exception out
of time.
[37]
A party is only
ipso
facto
barred
upon the failure to deliver a replication or subsequent pleading
within the time stipulated in the Uniform rules. In the
case of all
other pleadings, the bar occurs upon the lapse of the notice period
provided in
rule 26
i.e. within five days after receipt of the
notice. ‘If within the five-day period a pleading which the
party is entitled
to file is filed, there is no bar.’
[25]
However, in the absence of condonation for the late filing of a
rule
23(1)
(a)
notice and a
rule 23(2)
(a)
notice or an application to lift the bar, filing the notice within
the period allotted in the bar does not cure a procedural defect
in
the notice of exception and the exception brought on the ground that
the pleading is vague and embarrassing and that the notice
to strike
out has been filed out of the prescribed time limit.
[38]
Upon a proper construction of
rule 23(1)
, the notice of bar in this
matter was only applicable to the exception on the ground that the
plaintiffs’ particulars of
claim do not contain sufficient
averments necessary to sustain a cause of action.
Rule 23(1)
provides
that an exception on such ground may be filed ‘within the
period allowed for filing any subsequent pleading’.
When the
defendant filed her
rule 23(1)
notice on 9 June 2022, the defendant
was still within the five-day notice of bar period as the fifth day
only lapsed on 15 June
2022.
[26]
The defendant filed an exception to the plaintiffs’ particulars
of claim on 6 July 2022.This was still within 10 days of
the
defendant’s receipt of the plaintiffs’ reply to the
defendant’s notice of exception. Furthermore, the period
allowed for the filing of a replication had not expired; it only
expired on 15 July 2022. Both the notice of exception and an
exception on the ground that the pleading lacked averments which are
necessary to sustain a cause of action, were both timeously
delivered, that is, within the period provided for in the notice of
bar and within the period allowed for filing any subsequent
pleading.
Vague
and embarrassing
[39]
If the statement is vague, it is either meaningless or capable of
more than one meaning. To put
it at its simplest, a reader must be
able to distil ‘from the statement a clear, single
meaning’.
[27]
An
embarrassment occurs where in pleading averments, which are
contradictory, are not pleaded in the alternative.
[28]
If a
‘
pleading
fails
to comply with the provisions of
rule 18
and is vague and
embarrassing, the defendant has a choice of remedies: he may either
bring an application in terms of
rule 30
to have the pleading set
aside as an irregular step, or raise an exception in terms of
rule 23(1)
.’
[29]
[40]
The crucial distinction between
rule 23(1)
and
rule 30
is that an
exception that a pleading is vague and embarrassing can only be taken
when the vagueness and embarrassment strikes at
the root of the cause
of action as pleaded, whereas ‘[r]ule 30 may be invoked to
strike out the claim pleaded when individual
averments do not contain
sufficient particularity [in that latter instance] it is not
necessary that the failure to plead material
facts goes to the root
of the cause of action’.
[30]
[41]
Where a party intends to take an exception that a pleading is vague
and embarrassing such party
must, by notice, within 10 days of
receipt of the pleading, afford the party delivering the pleading an
opportunity to remove the
cause of complaint within 15 days of such
notice.
[31]
If the cause of
complaint is not removed within the stipulated period, the excipient
must deliver the exception.
[42]
The peremptory filing of the notice by the excipient within 10 days
of receipt of the combined
summons, affording his or her opponent an
opportunity to remove the cause of complaint, is a condition
precedent to the taking
of an exception that a pleading is vague and
embarrassing.
[32]
Failure to
comply with such peremptory requirements, in the absence of an
application for condonation for the non-compliance with
the 10-day
period constitutes an irregular step.
[43]
In the present matter, the defendant failed to file her
rule 23(1)
notice alleging that the plaintiffs’ particulars of claim are
vague and embarrassing, and did not bring an application to
strike
out within 10 days of receipt of the combined summons, as required.
Since the defendant has not lodged any application for
condonation
for non-compliance with the 10-day period, such failure constitutes
an irregular step, justifying the setting aside
of such step in whole
or in part. If the defendant intends to pursue such exception and
application to strike out, she will, on
good cause shown, have to
apply for condonation for non-compliance with
rule 23(1)
(a)
and rule 23(2)
(a)
of the Uniform Rules, or have to apply to have the bar lifted in
terms of rule 27.
Are
the plaintiffs’ particulars of claim excipiable?
[44]
In the circumstances of this case, only the exception on the ground
that the plaintiffs’
particulars of claim lack averments
necessary to sustain a cause of action warrants consideration by this
court. In order for an
exception to succeed, the excipient has a
duty, firstly, to persuade the court that upon every interpretation,
which the particulars
of claim could reasonably bear, no cause of
action is disclosed. Put simply, the excipient must establish that
the pleading is
excipiable on every interpretation that reasonably
could be attached to it.
[33]
Secondly, the excipient needs to satisfy the court that it would be
seriously prejudiced in the event that the exception should
not be
upheld.
[34]
The ultimate test
as to whether or not the exception should be upheld is whether the
excipient is prejudiced.’
[35]
[45]
I now turn to consider whether the plaintiffs’ particulars of
claim are excipiable, in
that they lack averments necessary to
sustain a cause of action. The pleading must be looked at as a
whole.
[36]
[46]
In
Salzmann
v Holmes,
[37]
Innes JA defined an exception as follows:
‘
An
exception goes to the root of the entire claim or defence, as the
case may be. The excipient alleges that the pleading objected
to,
taken as it stands, is legally invalid for its purpose.’
The
‘
exception
that a cause of action is not disclosed by a pleading cannot succeed
unless it be shown that
ex
facie
the
allegations made by a plaintiff and any document upon which his or
her cause of action may be based, the claim
is
(not
may be) bad in law’
.
[38]
[47]
An excipient must state in clear and concise terms the particulars
upon which his or her exception
is based, for ‘it is not
sufficient merely to state that the summons discloses no cause of
action. . .’
[39]
‘It
is for the party instituting proceedings to allege and prove that he
has
locus
standi in judicio.
’
[40]
[48]
The question that then arises in the present matter is whether the
plaintiffs’ particulars
of claim contain sufficient
particularity to sustain a cause of action. It has been argued on
behalf of the defendant that the
plaintiffs’ particulars of
claim lack averments necessary to establish that the plaintiffs have
locus standi in respect of
each of their distinct and separate causes
of action: the plaintiffs allege that the first and second plaintiffs
are members of
the third plaintiff; the third plaintiff is the
registered owner and breeder of the horses and the first and second
plaintiffs
lease the horses from the third plaintiff. However, there
are no averments as to the basis on which the first and second
plaintiffs
allegedly leased the horses from the third plaintiff, and
whether the first and second plaintiffs have the necessary authority
from the third plaintiff to enter into any agreements in relation to
the horses. In addition, it is not clear whether the first
and second
plaintiffs are acting as agents on behalf of the third plaintiff or
on their own. It is not clear whether the plaintiffs’
claim is
of a contractual or a delictual nature.
[49]
It appears ex facie the plaintiffs’ particulars of claim that
the plaintiffs have failed
to make averments in respect of: the date
on which the alleged lease agreement was entered into; who the
parties to the agreement
were and what the material terms of the
agreement were; no allegation is made that such agreement was
breached; when, how, and
whether the plaintiffs suffered damages as a
result; nor have the plaintiffs pleaded facts and principles of law
relating to the
first and second plaintiffs’ delictual claim
against the defendant, and the claim arising from the lien.
[50]
Counsel for the plaintiffs did not address this court on the
excipiability of the plaintiffs’
particulars of claim either on
the ground that such particulars lack averments necessary to sustain
a cause of action or on the
ground that the pleading is vague and
embarrassing. He rested his case on the procedural validity of the
exception as a decisive
factor. Therefore, the defendant’s
contention in this regard has gone unchallenged. It is not in dispute
that the plaintiffs’
particulars of claim lack clear, concise
and adequate material facts upon which the plaintiffs rely for their
claim and to which
the defendant may meaningfully plead. The
particularities outlined by the defendant as supporting her
allegation that the plaintiffs’
particulars of claim lack
averments necessary to sustain a cause of action, are sufficient. Had
it not been for the fact that the
defendant failed to comply with the
peremptory provisions of rule 23(1)
(a)
and rule 23(2)
(a)
,
in that she filed her notice of exception on the ground that the
pleading is vague and embarrassing out of the 10-day period
prescribed therein, such contention by the defendant would have been
upheld. This also finds support in that the plaintiffs have
not
challenged such contention by the defendant at all.
Conclusion
[51]
Inevitably, this court should uphold the exception on the ground that
the plaintiffs’ pleading
lack averments necessary to sustain a
cause of action and grant the plaintiffs leave to amend their
particulars of claim. I hope
that the plaintiffs will avail
themselves of this opportunity to amend their particulars, also in
other respects, as they lack
the necessary particularities of their
claims and are vague in such a way, in my view, that they are so
defective as to constitute
a nullity.
[41]
Such a step by the plaintiffs will help obviate unnecessary costs and
save time. Such a step will not prejudice the plaintiffs
but benefit
them.
Costs
[52]
The defendant has succeeded in part and the excipiability of the
plaintiffs’ particulars
of claim on all grounds have not been
challenged at all. The plaintiffs have only succeeded, in part, on
the basis of non–compliance
with the peremptory provisions in
that the defendant filed the notice of exception and the notice to
strike out, out of the prescribed
time limits. In other words, the
plaintiffs succeeded on technical grounds rather than on the merits.
The defendant has succeeded
in establishing that in the present
nature and state of the plaintiffs’ particulars of claim; she
has serious difficulty
in properly pleading her defence. Since the
plaintiffs could not show that their particulars of claim are not
defective and are
not excipiable, I deem it appropriate, fair, and
just to award costs in favour of the defendant. Although the
defendant may be
faulted for her delay in filing a notice of
exception within ten days of the receipt of the combined summons, it
appears from the
nature of the plaintiffs’ particulars of claim
that the defendant had a valid reason for filing a notice of
exception and
exception. I am, therefore, satisfied that the
defendant intended merely to make full use of the remedies that the
rules provided
her, rather than to flagrantly flout the rules.
Order
[53]
In the result, I make the following order:
1.
The exception, on the ground that the plaintiffs’ particulars
of claim
lack averments necessary to sustain a cause of action, is
upheld;
2.
The notice of exception and exception on the ground that the pleading
is vague
and embarrassing is set aside as an irregular proceeding;
3.
The plaintiffs are afforded twenty (20) days from the date of this
order to amend
their particulars of claim, failing which the
defendant is granted leave to approach this court on notice to the
plaintiffs for
an order dismissing the claim with costs.
4.
The plaintiffs are jointly and severally ordered to pay the costs of
the application.
MADONDO
AJP
Date
reserved:
29 November
2022
Date
delivered:
15 December
2022
For
Plaintiff:
Adv Crampton
Instructed
by:
c/o Jarred Wesley Kobusch
Roslin
farm, D2477
R103
Nottingham road
KwaZulu-Natal
Email:
akh3005@gmail.co
/
jarredkobusch@gmail.com
For
Defendant:
Adv De Beer
Instructed
by:
Patrick Lander Attorney
13a
Hopson road, Cowies Hill
TEL:
031 267 1626/8
Email:
paige@patricklander.co.za
c/o:
Tatham Wilkes
200
Hoosen Haffejee Street
PIETERMARITZBURG,
3201
TEL:
033 3453501
Ref:
U Premduth
[1]
McNally NO and
others v Codron and others
[2012]
ZAWCHC 17.
[2]
Ibid para 24-26.
[3]
Hill NO and
another v Brown
[2020]
ZAWCHC 61.
[4]
Ibid
para
13.
[5]
Van Zyl NO and
another v Smit
[2021] ZAGPPHC 499
.
[6]
Felix and
another v Nortier NO and others
(2)
1994 (4) SA 502
(SE) at 506E.
[7]
Felix
was followed in
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality and others:
In re African Bulk Earthworks (Pty) Ltd v Landmark
Mthatha (Pty) Ltd
and others
2010 (3) SA 81
(ECM) para 13.
[8]
Tuffsan
Investments 1088 (Pty) Ltd v Sethole and another
[2016] ZAGPPHC 653
paras 25–26.
[9]
Steve’s
Wrought Iron Works and others v Nelson Mandela Metro
2020 (3) SA 535
(ECP) para 18.
[10]
Ibid.
[11]
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality and others:
In re African Bulk Earthworks (Pty) Ltd v Landmark
Mthatha (Pty) Ltd
and others
2010
(3) SA 81
(ECM) para 13.
[12]
Steve’s
Wrought Iron Works and others v Nelson Mandela Metro
2020 (3) SA 535
(ECP) para 21.
[13]
Champion v JD
Celliers and Co Ltd
1904
TS 788
at 790-791;
Makgae
v Sentra Boer
(Koöperatief)
Bpk
1981
(4) SA 239
(T) at 244H-245A per Ackerman J.
[14]
DE van
Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
(RS
18, 2022) at D1-296 (hereinafter referred to as ‘
Erasmus
’),
referencing amongst others
Barclays
National Bank Ltd v Thompson
1989 (1) SA 547
(A) at 553F-I;
Mtetwa
v Minister of Health
1989 (3) SA 600
(D) at 604B-C;
Pretorius
and another v Transport Pension Fund and others
[2018] ZACC 10
;
2019 (2) SA 37
(CC) at 44F-G;
Brocsand
(Pty) Ltd v Tip Trans Resources and others
[2020] ZASCA 144; 2021 (5) SA 457 (SCA).
[15]
Erasmus
at D1-298A, referencing amongst others
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) SA 461
(SCA) at 465H.
[16]
Living Hands
(Pty) Ltd and another v Ditz and others
2013 (2) SA 368
(GSJ) para 15(e).
[17]
General
Commercial and Industrial Finance Corp Ltd v Pretoria Portland
Cement Co Ltd
1944
AD 444
at 454-455.
[18]
Erasmus
at D1-260, referencing
FPS
Ltd v Trident Construction (Pty) Ltd
1989
(3) SA 537
(A) at 542B;
Makhwelo
v Minister of Safety and Security
2017
(1) SA 274
(GJ) at 276G-H.
[19]
Erasmus
at
D1-301, referencing
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992
(4) SA 466
(W) at 469F-J.
[20]
Erasmus
at D1-309, referencing
Gallo
Africa Ltd and others v Sting Music (Pty) Ltd and others
[2010]
ZASCA 96
;
2010 (6) SA 329
(SCA) at 331I–332B.
[21]
Erasmus
at D1-310B.
[22]
Erasmus
at D1-310.
[23]
Feldman v
Feldman
1986
(1) SA 449 (T).
[24]
Tyulu and
others v Southern Insurance Association Ltd
1974
(3) SA 726
(E);
Felix
and another v Nortier NO and others (2)
1994 (4) SA 502
(SE) at 506E;
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality and others:
In re African Bulk Earthworks (Pty) Ltd v Landmark
Mthatha (Pty) Ltd
and others
2010
(3) SA 81
(ECM) at 86G;
Hill
NO and another v Brown
[2020]
ZAWCHC 61
para 4-8.
[25]
Steve’s
Wrought Iron Works and others v Nelson Mandela Metro
2020
(3) SA 535
(ECP) para 13. See also
Tyulu
and others v Southern Insurance Association Ltd
1974
(3) SA 726 (E).
[26]
See also
Kramer
Weihmann and Joubert Inc v South African Commercial Catering and
Allied Workers Union (SACCAWU)
[2012]
ZAFSHC 152.
[27]
Venter and others NNO v Barret
Venter and others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd
2008 (4) SA 639
(C) para 11.
[28]
Trope v South African Reserve Bank
and another and two other cases
1992
(3) SA 208
(T) at 211E;
Bendew
Trading v Sihle Property
Developers and Plant Hire
[2021] ZAMPMBHC 37 para 16.
[29]
Erasmus
at
D1-301, referencing amongst others
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992
(4) SA 466
(W) at 469F-J.
[30]
Hill NO v
Strauss
[2021]
ZAGPJHC 77 para 19.
[31]
Rule 23(1)
(a)
.
[32]
See
Viljoen
v Federated Trust Ltd
1971
(1) SA 750
(O) at 753F.
[33]
See
Francis
v Sharp and others
2004
(3) SA 230
(C) at 237F-G
.
[34]
Levitan v
Newhaven Holiday Enterprises CC
1991
(2) SA 297
(C) at 298A
.
[35]
Erasmus
at D1-302.
See
also
Van
Zyl NO and another v Smit
[2021]
ZAGPPHC 499
para
18.
[36]
Nel and others
NNO v McArthur and others
2003
(4) SA 142
(T) at 149F.
[37]
Salzmann v
Holmes
1914
AD 152
at 156.
[38]
Vermeulen v
Goose Valley Investments (Pty) Ltd
[2001]
3 All SA 350
(A) para 7
.
[39]
Erasmus
at
D1-310E, referencing amongst others
Molteno
Bros v South African Railways
1936
AD 408
at 417;
Sydney
Clow & Co Ltd v Munnik and another
1965
(1) SA 626
(A) at 634G;
Cook
and others v Muller
1973
(2) SA 240
(N) at 244A-C.
[40]
Erasmus
at D1-282, referencing
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991
(1) SA 567
(A) at 575 H J;
Kommissaris
van Binnelandse Inkomste v Van der Heever
1999
(3) SA 1051
(SCA) at 1057G-H.
[41]
Obiter remarks of
Cloete J in
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992 (4) SA 466
(W) at 473B-D.