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[2021] ZAGPPHC 344
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Mamopgopa v Alexander Forbes Financial Services (Pty) Ltd and Another (7271/2019) [2021] ZAGPPHC 344 (27 May 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NUMBER:7271/2019
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MOKGAETJI
GLADYS MAMOPGOPA
Plaintiff
And
ALEXANDER
FORBES FINANCIAL
SERVICES
(PTY) LTD
First
Defendant
MINES
1970 PROVIDENT FUND
Second
Defendant
JUDGMENT
BARNARDT
AJ
1.
For determination are the exceptions raised by both defendants
against the plaintiff’s
particulars of claim on the basis that
her particulars of claim do not disclose a cause of action against
either of them and/or
are vague and embarrassing.
FACTUAL
BACKGROUND
2.
Both defendants defended the plaintiff’s claim as set out in
the particulars
of claim, signed on 30 September 2019, and filed
notices of intention to except in terms of Rule 23 of the Uniform
Rules of Court.
3.
The plaintiff opted not to remove the causes of complaint as raised
and both excepted against
the plaintiff’s particulars of claim.
The first defendant’s exception as well as the second
defendant’s exceptions
(two were filed) were served on 20
January 2020.
4.
The defendants filed their heads of argument in support of the
exceptions raised in May 2020
(second defendant) and June (first
defendant) respectively and the plaintiff was, due to her failure to
file heads of argument,
specifically requested on 1 July 2020, to do
so.
5.
Notwithstanding the request, the plaintiff failed to file her heads
of argument and the second
defendant tried to bring an application to
compel since July 2020, but no date was set by the registrar.
6.
The exceptions were set down on the opposed motion roll of 8 March
2021, and the set down
was served on the plaintiff’s attorney
of record on 11 February 2021.The plaintiff’s attorney of
record was once again
reminded that the exception hearing was set
down on the opposed motion roll of 8 March 2021 in a letter, dated 3
March 2021.
7.
The first defendant’s practice note was uploaded on Caselines
on 25 February 2021 and
the second defendant uploaded two practice
notes, the first on 26 February 2021 and the second practice note on
3 March 2021.
8.
On 2 March 2021, the registrar published my directives with a list of
allocated matters and
according to the list this matter was set down
for hearing at 14:00 on 9 March 2021. The directives specifically
stated that all
matters would be argued virtually, and consequently
all parties had to be present.
9.
On Sunday 7 March 2021, the plaintiff uploaded a practice note
wherein she requested that
the matter should be removed from the roll
due to non-compliance with the Judge-president’s directives,
regarding the bringing
of an application to compel.
10.
When this matter was called on 9 March 2021 there was no appearance
on behalf of the plaintiff, and
I requested counsel for the first
defendant to contact the plaintiff’s attorney with a request to
join the hearing.
11.
I was informed in open court, that Mr. Matemane, plaintiff’s
attorney of record, will not be joining
the hearing, since he was
elsewhere occupied.
12.
I considered the plaintiff’s request that the matter should be
removed from the roll but decided
against it and proceeded in the
absence of Mr. Matemane who preferred not to attend the hearing. The
plaintiff had ample time to
file her heads of argument but failed to
do so without tendering any explanation for her failure. To allow the
plaintiff to hide
behind the practice directives would be a travesty
of justice in these circumstances.
EXCEPTIONS
13.
“An exception is a legal objection to the opponent’s
pleading. It complains of a defect
inherent in the pleading:
admitting for the moment that all the allegations in a summons or
plea are true, it asserts that even
with such admission the pleading
does not disclose either a cause of action or a defence, as the case
may be. It follows
that where an exception is taken, the court
must look at the pleading excepted to as it stands: no facts outside
those stated in
the pleading can be brought into issue – except
in the case of inconsistency – and no reference may be made to
any
other document. … In order to succeed an excipient
has the duty to persuade the court that upon every interpretation
which the pleading in question, and in particular the document on
which it is based, can reasonably bear, no cause of action or
defence
is disclosed; failing this, the exception ought not to be upheld.”
[1]
14
Several grounds for exception were raised and I will deal with the
ground separately.
15.
On behalf of the second defendant an exception was raised against the
fact that the plaintiff failed
to plead any basis in law or fact from
which it may be concluded that this court has jurisdiction over the
defendants, because
both defendant’s registered offices and/or
places of business are situated in Sandton, Gauteng Province.
16.
This ground of exception was not pursued in the second defendant’s
heads of argument and since
both the main and local division still
have concurrent jurisdiction, notwithstanding the fact that the High
Court may, if it is
in the interest of justice transfer the matter to
another court, in accordance with the order granted in the
Nedbank
v Thobejane and related matters
[2]
this ground of exception is dismissed.
17.
Both defendants excepted against the particulars of claim on the
basis that the plaintiff did not indicate
whether she seeks judgment
against the first or second defendants, or both and if so, whether
the liability is joint or joint and
several.
18.
However, paragraph 19 of the particulars of claim reads as follows:
“
In
the premises the defendants are indebted to the plaintiff in the sum
of R836 355.12, the one paying the other to be absolved.”
Although
this could have been put more eloquently and included in paragraph 20
of the particulars of claim, the plaintiff indicated
that she regards
the defendants to be jointly and severally liable and therefore, this
ground of exception is dismissed.
19.
The first defendant raised the following additional grounds of
exception:
“
2.
Insofar as the plaintiff seeks judgment against the first defendant,
the particulars
of claim do not disclose a cause of action against
the
first
defendant
and
is
vague
and
embarrassing
as
it
is
unclear
on what basis judgment is being sought.
2.1
No cause of action against the first defendant is pleaded or
identified in the particulars
of claim.
2.2
It is not stated whether the claim against the first defendant is
based on delict or contract
or a statutory provision or some other
cause of action.
2.3
The particulars of claim suggest that the claim is based on
the plaintiff’s
brother's pension benefit. Although the second
defendant is cited as a pension fund, the first defendant is simply
cited as a company,
and it is unclear on what basis the first
defendant can conceivably be liable to make payment to the plaintiff.
3.Paragraph 17 read with
paragraphs 5 to 7:
3.1
The plaintiff’s claim seems to be in respect of the death
benefit of her late brother
who it is alleged was a member of the
second
defendant.
3.2
Section 37C of the Pension Funds Act provides that a death benefit
payable by a pension
fund shall not form part
of
the
assets
in
the
estate
of
such
a deceased
member.
3.3
Accordingly, the executor of the deceased estate and heirs of the
deceased have no claim
in respect of a death
benefit, and
the
plaintiff's assertion that
she
claims
in
her capacity as
"the executor and
beneficiary"
of the estate of
her brother is therefore bad in law.
3.4
Accordingly, the plaintiff has failed to plead facts to show that she
has locus standi,
and therefore she has failed to disclose a cause of
action in particulars of claim.
3.5
In addition, the plaintiff’s assertion that she claims in her
capacity as executor and beneficiary
renders the particulars
of
claim vague and embarrassing.
4.
Ad
paragraphs
5
and
6:
4.1
The plaintiff fails to provide any details as to the identity and
date of death of
the plaintiff’s brother.
4.2
The “
unclaimed benefit
” of the plaintiff’s
brother is not described and no reference or detail of that benefit
is provided.
4.3
The first defendant has no way of knowing how to identify that
benefit, and accordingly
the particulars of claim contained
insufficient particularity to enable the first defendant to plead
thereto.
5.
Paragraphs 12 to 14:
5.1
The plaintiff fails to state who contacted the South African Revenue
Service, and to whom
the South African Revenue Services made the
indications to, and when this correspondence
took place.
5.2
The application for a tax directive is not attached to the summons,
and no detailed explanation
of the contents of that application
is furnished,
and
the
significance
of
the
date of accrual is not explained.
5.3
Accordingly, the particulars of claim contain insufficient
particularity to enable the first
defendant to plead thereto.
6.
Paragraphs 15 to 18:
6.1
The plaintiff pleads in paragraph 15 that, according to actuarial
calculations provided
by the first defendant,
"an amount due
to the plaintiff
as
at 31 August 2016
was
R8 082,39."
6.2
The plaintiff goes on, in paragraph 18, to state that the first
defendant has neglected
and refused to pay the sum of R836
355,12 "as
claimed by the plaintiff'.
6.3
No explanation is furnished as to how the amount owing to the
plaintiff varies from the
amount owed by the plaintiff on 31 August
2016.
6.4
Accordingly, the· particulars of claim contain insufficient
particularity to enable
the first defendant to plead thereto, and are
vague and embarrassing”
20.
The relevant additional grounds of exception raised by the second
defendant are the following:
20.1
In its first exception:
“
1.
The plaintiff claims payment of the sum of R836 355.12 from the first
and second defendants
–
1.1
The plaintiff has failed to set out whether the claim against the
second defendant
is contractual or delictual in
nature.
1.2
To the extent that the plaintiff’s claim against
the second defendant
is alleged to be contractual in nature,
the plaintiff has failed to set out whether the contract is written
or oral and when, where
and by whom it was concluded.
1.3
The plaintiff has failed to set out how, when or where the cause of
action purportedly giving
rise to the claim against the second
defendant is alleged to have arisen.
1.4
The
plaintiff
has failed to
set
out how the sum of R836 355.12
has
been
calculated
and the basis upon which the aforesaid sum is claimed as against the
second defendant;”
20.2 In its
second exception:
“
1.
The plaintiff has failed to plead any factual or legal basis in
support of her claim
against the second defendant.
1.1
The plaintiff has failed to set out any contractual or other basis
upon which to assert
that the second defendant was indebted to the
deceased and/or responsible for the payment of the sum claimed by the
plaintiff on
behalf of the deceased estate.
1.2
The plaintiff has failed to plead any basis upon which to assert that
the second defendant
has a duty in law to make payment of the sum
claimed by the plaintiff on behalf of the deceased estate.
1.3
The plaintiff has failed to allege that the second defendant breached
any contractual or
other obligation owed to the deceased and/or the
deceased estate which breach is alleged to have given rise to the
plaintiff’s
claim.
1.4
The plaintiff has failed to plead any causal nexus between her claim
and
any
act or omission by the second defendant, and/or that any act or
omission
by
the second
defendant
was
wrongful and/or negligent.
1.5
The plaintiff has failed to plead that that the sum claimed was ever
demanded from the second
defendant by the deceased or any party on
behalf of the deceased estate and that the plaintiff has failed to
make payment of the
sum claimed.
1.6
Consequently no cause of action is disclosed in respect of the second
defendant.”
21.
On scrutiny of the particulars of claim apart from several other
deficiency, the most glaring
is the fact that neither the name of the
plaintiff’s brother, nor his date of death or his pension or
provident fund number
is mentioned.
22.
Without discussing every ground of exception raised, I am convinced
that the plaintiff did
not disclose a cause of action and that the
particulars of claim is vague and embarrassing for the reasons set
out in the exceptions
raised.
23.
I therefore order as follows:
ORDER
1.
The grounds of exception as raised by the first defendant in
paragraphs 2 - 6
of its notice in terms of rule 23(1), dated 19
November 2019 (see paragraph 19 above) is upheld.
2.
The grounds of exception raised by the second defendant in paragraphs
1.1 -1.4
of its notice in terms of rule 23(1) dated 20 November 2019
(see paragraph 20.1 above) is upheld.
3.
The grounds of exception raised by the second defendant in paragraph
1.1 -1.6
of its second notice in terms of rule 23(1) dated 20
November 2019 (see paragraph 20.2 above) is upheld.
4.
The plaintiff is ordered to amend het particulars of claim within 15
days of
service of this order on the plaintiff’s attorney of
record, failing which her action against the first and second
defendant
will be dismissed with costs.
5.
The plaintiff is ordered to pay the costs of this application.
ACTING
JUDGE JF BARNARDT
JUDGE OF THE HIGH
COURT
GAUTENG
DIVISION OF THE HIGH COURT, PRETORIA
Delivered:
This judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation
to the
Parties/their legal representatives by email and by uploading it to
the electronic file of this matter on CaseLines.
The date for
hand-down is deemed to be 27 May 2021.
APPEARANCES
For
the applicant: Mr. L Matemane
Instructed
by:
Matemane Attorneys.
For
the first respondent: Adv P van der Berg SC
Instructed
by:
Thyne Jacobs Inc.
For
the second respondent:
Adv C Marule
Instructed
by:
Edward Nathan Sonnenbergs Inc
Date
of hearing: 8 March 2021
Date
of Judgment: 27 May 2021
[1]
Erasmus,
Superior Court Practice Volume 2 D1-293-294 (Service 13, 2020)
[2]
Saflii
(84041/15)[2018] ZAGPPhC 692 (26 September 2018)