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2021
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[2021] ZAGPPHC 259
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Minister of Defence and Military Veterans v Ndhlovu (56266/19) [2021] ZAGPPHC 259 (19 April 2021)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED:
yes
19
April 2021
CASE NO: 56266/19
Hearing before
Rabie J by way of Zoom conference.
In
the matter between
:
MINISTER OF DEFENCE AND
MILITARY VETERANS
Plaintiff
and
N.
NDHLOVU
Defendant
JUDGMENT
1.
This is an exception to
the plaintiff's particulars of claim in an action instituted against
the defendant to reclaim monies which
had been paid to the defendant
as remuneration but to which the defendant was, according to the
plaintiff, not entitled.
2.
The defendant, as
excipient, submitted that the plaintiff failed to make the necessary
averments to sustain a cause of action and
also that the particulars
of claim were vague and embarrassing.
3.
On behalf of the
plaintiff it was submitted during argument that although the
particulars of claim were rather clumsily pleaded,
it is nevertheless
clear that the plaintiff seeks a repayment of an amount overpaid to
the defendant. It was further submitted
that difficulties with
establishing the case of the plaintiff can be overcome by the process
of discovery.
4.
The submissions on
behalf of the plaintiff are without merit. Firstly, discovery cannot
cure defects in a pleading. Secondly, a
defendant is entitled to know
exactly on which cause of action a plaintiff is relying. The
plaintiff
in casu
probably intended
to plead a cause of action based on the condictio indebiti, and this
was confirmed during the hearing before this
court. However,
the necessary averments to substantiate such a cause of action had
not been pleaded.
5.
Furthermore, I find the
particulars of claim vague and embarrassing. In the particulars
of claim the bulk of the paragraphs
seek to set out, in chronological
order, the different ranks held by the defendant during his
employment with the plaintiff, his
promotions and certain
designations as well as the remuneration attached to some thereof.
However, I find the allegations to be
disjointed and not following
one upon the other with the result that I find it impossible to
understand the plaintiff's case and
the relevance of the separate
allegations. There is no clarity as to the manner by which the
plaintiff arrives at the amount
claimed from the defendant. As
such the defendant would be embarrassed to plead to the particulars
of claim.
6.
Consequently the
exception must succeed on both grounds submitted by the defendant and
the plaintiff should be given an opportunity
to amend its particulars
of claim.
7.
As far as costs are
concerned, there is no reason why cost should not follow the event.
8.
In the result, the
following order is made:
1.
The exception against the plaintiff's particulars of claim is upheld.
2.
The plaintiff is granted leave to amend its particulars of claim
within 14 days of date of delivery of this order to the plaintiff or
its attorneys of record.
3.
The plaintiff is ordered to pay the defendant's costs of the
exception.
C.P. RABIE
JUDGE OF THE HIGH COURT
19 April 2021
Plaintiff's Attorneys:
State Attorney Molwanta/5789/2018/Z59
morenammorele@justice.gov.za
Defendant's Attorneys:
Mr Zola Majavu zola@majavuattorneys.co.za