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[2021] ZAGPPHC 338
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Chauke v Kingdom of Netherlands and Others (620920204) [2021] ZAGPPHC 338 (4 January 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 620920204
REPORTABLE:NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED:YES
DATE:4
January 2021
In
the matter between:
DAVID
CHAUKE
Plaintiff
and
THE
KINGDOM OF THE NETHERLANDS
First Defendant
THE
MINISTER OF FOREIGN AFFAIRS
Second Defendant
THE
CEO OF EMIRATES AIRLINES
Third Defendant
THE
CEO OF PENTRAVEL
AGENCY
Fourth Defendant
THE
CEO OF
NEDBANK
Fifth Defendant
THE
MINISTER OF INTERNATIONAL
Sixth Defendant
RELATIONS
ANO CO OPERATION
THE
PRESIDENT OF THE REPULIC
OF
Seventh Defendant
SOUTH
AFRICA
THE
MINISTER OF FINANCE OF
THE
Eighth Respondent
REPUBLIC
OF SOUTH AFRICA
THE
MINISTER OF POLICE OF THE
Ninth Defendant
REPULBIC
OF SOUTH AFRICA
THE
MINISTER OF TRANSPORT FOR
THE
Tenth Defendant
REPUBLIC
OF SOUTH AFRICA
THE
GOVERNOR OF THE SOUTH AFRICAN
Eleventh Defendant
RESERVE
BANK
THE
CEO OF
SANRAL
Twelfth Defendant
THE
BANKING ASSOCIATION OF THE
Thirteenth Defendant
REPUBLIC
OF SOUTH AFRICA
THE
MINISTER OF TRADE AND INDUSTRY
Fourteenth Defendant
OF
THE REPUBLIC OF SOUTH AFRICA
THE
NATIONAL CREDIT REGULATOR OF
Fifteenth Defendant
SOUTH
AFRICA
THE
MINISTER OF
VALUATIONS-
Sixteenth Defendant
PLANNING
AND MONITORING IN THE
PRESIDENCY
THE
OMBUDSMAN FOR BANKING
Seventeenth Defendant
SERVICES
FOR THE REPUBLIC OF SOUTH
AFRICA
THE
MINISTER OF HIGHER EDUCATION OF
Eighteenth Defendant
THE
REPUBLIC OF SOUTH AFRICA
HUMAN
RIGHTS COMMISSION TO THE
Nineteenth Defendant
UNITED
NATIONS
THE
LEGAL PRACTICE COUNCIL OF
Twentieth Defendant
SOUTH
AFRICA
MASHEGO
ATTORNEYS INCORPORATED
Twenty First Defendant
THEMBA
NGOBENI ATTORNEYS
Twenty Second Defendant
EVANS
MATHEBULA
Twenty Third Defendant
RADEBE
ATTORNEYS INCORPORATED
Twenty Fourth Defendant
GOODMAN
MHLANGA
Twenty Fifth Defendant
WITS
LEGAL
CLINIC
Twenty Sixth Defendant
PROFESSOR
CHARLES JORDI
Twenty Seventh Defendant
THE
JUDICIAL SERVICE COMMISSION OF
Twenty Eighth Defendant
SOUH
AFRICA
THE
JOHANNESBURG SOCIETY OF
Twenty Ninth Defendant
ADVOCATES
ADVOCATE
TSHEPO NYANDENI
Thirtieth Defendant
MACINTYRE
VAN DER POST INC.
Thirty First Defendant
CEO
OF VFSS GLOBAL AGENCY
Thirty Second Defendant
HLONGA
INCORPORATED ATTORNEYS
Thirty Third Defendant
MINISTER
OF JUSTICE AND
Thirty Fourth Defendant
CORRECTIONAL
SERVICES
JUDGEMENT
Because
of
the
current
pandemic, argument
in
this
case was heard by
means of video
conferencing technologies. I am the author of
this judgment and prepared it
myself. It will be handed
down electronically
by
circulation
to
the parties’
representatives
by way of
electronic mall and by uploading
it to
the electronic
file of this
matter on the electronic application called Caselines. The date on
which this Judgment is handed down shall be deemed
to
be
4 January
2021.
AVVAKOUMIDES
AJ
INTRODUCTION:
1.
This is an exception brought by the Eleventh Defendant
against the
Plaintiff’s action. At first glance the summons appears to be a
combination of particulars of claim and a founding
affidavit. The
Plaintiff served the combined summons on the Defendants on 28 January
2020. Most of the Defendants have not
reacted to the Plaintiff’s
summons and in my view, with good reason. The Eleventh Defendant
filed a notice in terms of rule
23(1) on 29 May 2020 calling upon the
Plaintiff to cure the causes of complaint within the time frame
provided in the notice. The
Plaintiff failed to address the causes of
complaint and on 16 July 2020 the Eleventh Defendant filed its
exception based on seven
grounds of complaint. On 23 July 2020 the
Eleventh Defendant filed a notice of intention to amend its
exception, merely to include
one further prayer.
This attempt to amend is
of no consequence.
2.
On perusal of the summons, it appears that there is a
litany of
vexatious and non-sensical matters brought by the Plaintiff spanning
over a decade as between 2009 and 2020.
3.
The Eleventh Defendant argued that the usual relief of
an exception
by providing a party of the· opportunity to amend is not
capable of performance in this matter because
the summons is so
defective, it requires to be withdrawn ;entirely with an appropriate
tender for the wasted costs.
4.
In response to the exception the Plaintiff served the
following
documents upon all the Defendants:
4.1
A
quasi
application to “
strike
out”
to be brought on an urgent basis on 2 June 2020 which has not
been attested to under oath and is, on a perusal thereof,
incoherent.
4.2
A second
quasi
application to “
strike out”
the be brought on an urgent basis on 20 July 2020, again not attested
to under oath and incoherent.
4.3
A replication to the heads of argument filed on behalf of the State
Defendants which is also incoherent and phrased as a
quasi-affidavit
not' made under oath together with a notice on 4 August 2020.
4.4
A notice to oppose the amendment of the exception on 7 August 2020.
5. The
Eleventh Defendant argued that the litany of
defective processes
brought by the Plaintiff has· substantially escalated
the legal costs of the Eleventh Defendant
itself and the other State
Defendants. I will proceed to deal with each of the rounds of
exception as they appear in the relevant
notice.
GROUND
1:
6.
The Plaintiff, under the same case number filed a combined
summon, an
annexure thereto marked particulars of claim together with an
affidavit. The complaint is that the Plaintiff has failed
to comply
with Uniform Rules 6, 17 and 18. In order to illustrate, not only the
non-compliance of the aforesaid rules I find it
necessary to quote
from paragraph 1 of the particulars of claim
(sic),
as
follows:
“
THAT
MINISTER OF FOREIGAN AFFAIRS FOR THE KINGDOM OF NETHERLANDS SHOULD BE
HELD LIABLE TO SETTLE AN AMOUNT OF 80 MILLION EUROS FOR
THE
CANCELLATIONS OF THE FLIGHT FROM JOHANNESBURG VIA DUBAI TO THE
AMSTERDAM WHICH WAS DESTANT FOR THE HAGUE IN THE INTERNATIONAL
COURT
WHERE THE APPLICANT WAS DESTINED TO GO AND FILES HARD COPIES OF
DOCUMENTS ON HIS POSSISSION IN ARRANGEMENT WITH THE
ATTORNEYS
BASED ON THAT COUNTRY ANI IN GERMAN INCLUDING BEING AN OBSTRUCTION TO
JUSTICE ON THIS MATTE AFTER COLLUDING
WITH THE SOUTH
AFRICAN AGENCIES AS IN ANNEXURE “BDO1(A)” OF THE NOTICE
IN TERMS OF SECTION
3 ACT 40
ISSUED BEFORE THE HONOURABLE PARTIES AS
ON THE DEFENDANTS ON THE COURT ROLL IN THAT IT WAS UNJUSTIFIABLE. THE
PLAINTIFF RECEIVED
A CALL FROM THE VFS GLOBAL AGENCY AROUND MOTH OF
DECEMBER CITING THAT THE PLAINTIFF HAVE TO DECLARE R1 MILLION (R1000
000.00) IN
ORDER TO BE GRANTED A VISA AND HE WAS CALLED TO COME
IN SANDTON ON WHICH THE PLAINTIFF HEADED TO THE AGENCY BRANCH
AND
EMBASSY IN PRETORIA. THAT CAPITAL WAS RAISED AND THE BANK COULD
NOT ALLOW THE: PLAIN.TIFF TO DEPOSIT THE CASH ON HIS ACCOUNT AS
HE
WAS REFUSED OWNERSHIP.OF THE BANK ACCOUNT WITH NEDBANK AND TRANSFER
IT AND THE CAPITAL WAS RETURNED TO THE MEMBER THE RESEARCH
CREW AS IT
WAS LOANED FROM THE BANK”.
7.
Each of the paragraphs in the document
purporting to be particulars
of claim are similar in their incoherence and one cannot make head or
tail of what the Plaintiff’s
claim is aimed at.Consequently
ground 1 of the exception is upheld.
GROUND
2:
8.
In the tramlines of the summons and particulars of claim,
reference
is made to an urgent application. The Eleventh Defendant argued that
this process fails to comply with rule 6(12)(a)
and rule 18. For the
same reason I am of the view that this ground of exception should be
upheld.
GROUND
3:
9.
It is not at all clear. neither, is the Eleventh Defendant
referred
to, what relief is sought against the Eleventh Defendant. There are
no material averments made against the Eleventh Defendant
to sustain
a cause of action. In paragraph 6.2 of the “
affidavit”
which accompanied the particulars of claim, the Plaintiff pleads
a legal conclusion as against the Eleventh Defendant without setting
out any facts
probanda
to substantiate the legal conclusion
and there is no compliance with rule 18. Consequently, in my view t
'is ground of exception
must be sustained.
GROUND
4:
10. The
particulars of claim refer to the Small Claims Court Act
61 of 1984
and this notwithstanding, this summons has been issued out the
Pretoria High Court. Regard being had to the jurisdictional
limit of
the Small Claims Court, the Eleventh Defendant is unable to determine
which forum the Plaintiff intends to proceed in,
and the particulars
of claim are therefore vague and embarrassing. This ground of
exception must also be sustained.
GROUND 5:
11.
The Plaintiff, in various paragraphs of the affidavits
attached to
the particulars of claim refer to matters which have already been
finalised in respect of divisions. The Plaintiff
has failed to attach
there processes and refers to matters which are
res judicata
.
Thus, no cause of action is made out and at paragraph 14.1 to 14.5 of
the affidavit, the Plaintiff refers to “prospects
of success”
alluding to the test on appeal, alternatively a rescission and has
failed to launch any such process out of the
particular division. The
Eleventh Defendant is unaware of what relief the Plaintiff seeks
against it and this ground of exception
must be similarly upheld.
GROUND 6:
12.
The particulars of claim do not accord with the accompanying
affidavit. No cause of action is made out against the Eleventh
Defendant in the particulars of claim. Paragraph 10 of the
particulars
of claim refers to an affidavit and at paragraph 11 an
urgent application is referred to and both are not attached to the
particulars
of claim. There being no
facta probanda
against
the Eleventh Defendant, this ground of exception must also be upheld.
GROUND
7:
13.
At paragraph 16 of the .particulars of claim the Plaintiff
seeks
payment in the sum of “
R6 500 000 000 000.00 by the
South African Government and 80 million Euros by Kingdom of
Netherlands ...”.
The damages are not particularised
in terms of rule 18(10) and are also non-sensical. This ground of
exception must similarly be
upheld.
14.
In respect of every ground of exception the Plaintiff
repeatedly
and inappropriately submitted that if the Defendants had only
made settlement offer, he would not proceed
with his
actions/applications. His submissions were difficult to follow and
understand and were not founded on any legal ground.
LEGAL POSITION:
15.
The object of pleadings is to enable each side to come to trial
prepared to meet the case of the other and not to be taken by
surprise.
16.
Pleadings must be lucid and logical, drafted in an intelligible
form
and the cause of action or defence must clearly appear from the
contents thereof. The particulars of claim should be phrased
in a
manner that the Defendant may reasonably and fairly be required to
plead thereto. See Trope v South African Reserve Bank and
Another and
two other cases
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 273A-B
and Jowell v Bramwell Jones and Others
1998 (1) SA 837
(W) at
913B-G.
17.
Rule 18 provides,
inter alia
,·that every pleading shall
contain a clear and concise statement of the material facts upon
which the pleader relies on
for his claim, defence or answer to any
pleading with sufficient particularity to enable the opposite party
to reply thereto. The
defects in the Plaintiff’s summons go to
the heart of the claim. The pleading lacks particularity to the
extent t at it is
completely vague. The vagueness causes
embarrassment of such a nature that the excipient is prejudiced. See
Quinlan v MacGregor
1960 (4) SA 383
(D) at 393E-H.
18.
Pleadings that are “.. .
a rambling preview
of
the evidence
proposed to be adduced at trial...”
do not meet the requirements of rule 18(4) and would be
excipiable as being vague and embarrassing. See Moaki v Reckitt and
Coleman
[Africa] and Another
1968 (3) SA 98
(A) at 102A-B.
CONCLUSION:
19. The
Eleventh Defendant argued that the usual relief should
exceptions be
upheld is to afford the Plaintiff an opportunity to amend. However,
says the Eleventh Defendant, the summons filed
is so materially at
odds with rule 18 that it would defeat the purpose of rule 23 to
afford the Plaintiff an opportunity to amend.
The Eleventh Defendant
submitted that the proper relief would be to uphold the exceptions
and to grant costs against the Plaintiff.
I am inclined to agree.
20. The
order for costs sought by the Eleventh Defendant against
the
Plaintiff is based on the fact that, on a cursory glance at the
incomprehensible verbiage filed, indicates that the Plaintiff
has
sought the same relief against the same parties since 2009, despite
having matters dismissed in previous courts. Furthermore,
the conduct
by the Plaintiff is vexatious, because he has launched multiple
notices and documents which have no ground in rules
and have
culminated in substantial escalation of costs for the Defendants.
21. I
agree with counsel for the Eleventh Defendant that, without
a cost
order, the Plaintiff will continue undeterred with his current
conduct and on the assumption that multiple matters can be
flied
against litigants whilst expecting the presiding judicial officers to
wade through non-sensical documents.
ORDER:
22. Under
the circumstances, having heard from both counsel
for the Eleventh
Defendant and from the Plaintiff in person by way of virtual
proceedings, I make the following order:
22.1
The Eleventh Defendants’ exception
is upheld.
22.2
The Plaintiff is ordered to pay the Eleventh
Defendants’ costs.
G.T.AVVAKOUMIDES
ACTING
JUDGES OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Representation
for parties:
On
behalf of Plaintiff:
D
Chauke (in person)
On
behalf of Eleventh Defenfant:
SJ Martin
Instructed
by:
Tshisevhi Gwana Ratshimbilani Inc,