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[2021] ZAMPMBHC 10
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University of Mpumalanga v Magma Masemola Attorneys Inc (1941/2018) [2021] ZAMPMBHC 10 (7 January 2021)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
(MPUMALANGA
DIVISION, MBOMBELA)
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES:NO
(3)
REVISED: YES
CASE NO:
1941/2018
In the matter
between:
UNIVERSITY
OF MPUMALANGA
Excipient
and
MAGMA
MASEMOLA ATTORNEYS INC
Respondent
In
Re
:
MAGMA
MASEMOLA ATTORNEYS INC
Plaintiff
and
UNIVERSITY
OF MPUMALANGA
Defendant
J
U D G M E N T
MASHILE
J:
[1]
For purposes of avoiding possible confusion, I shall refer to the
parties as the Plaintiff and
Defendant and not as they are cited in
the exception – Excipient and Respondent. This matter commenced
as a motion court
case. In the process certain disputes of fact arose
requiring it to be referred to trial for oral evidence. Below I
describe a
terse factual background that led to the current
proceedings.
[2]
The Plaintiff launched motion proceedings against the Defendant on 16
July 2018 having founded
his claim on the Defendant’s
acknowledgment of debt recorded in correspondence exchanged between
the parties.
Confronted with this claim, the Defendant gave
notice of his intention to oppose, which notice has no date of
service and filing.
Believing that the particulars of claim were
objectionable in several respects, the Defendant gave a notice in
terms of Rule 23
(1) dated 05 May 2020, demanding the removal of the
cause of complaint failing which the Defendant would proceed to set
down the
exception.
[3]
When the Plaintiff failed to amend its particulars of claim, the
Defendant perfected its threat
by filing and setting down the
exception. The attack at the particulars of claim is that they are
either vague and embarrassing
or do not disclose a cause of action or
both. The complaints have been formulated as follows:
“
TAKE
NOTICE THAT the Defendant hereby excepts to the Plaintiff’s
amended particulars of claim on the grounds that they are
vague and
embarrassing and/or alternatively do not disclose a cause of action
in the following respects:
1.
In paragraph 3 thereof, the
Plaintiff merely avers that when it concluded the written agreement,
the Defendant was duly represented
by its Registrar, Sello Legodi
(alternatively a duly authorised representative).
2.
In this regard, Plaintiff does not
aver whether and by whom was Sello Legodi was authorised.
3.
Furthermore, Plaintiff does not aver
who the “duly authorised representative” of the Defendant
was.
4.
4.1
The Defendant is an organ of state and as
such is obliged by the
provisions of section 217 of the Constitution of the Republic of
South Africa to procure goods and services
in accordance with a
system which is fair, equitable, transparent, competitive and
cost-effective.
4.2
The Plaintiff’s particulars of claim
do not aver that the
services that were allegedly sought from it were sought in accordance
with the system set out in section 217
of the Constitution.”
[4]
T
he
onus that a pleading is vague and embarrassing or that it discloses
no cause of action rests on a Defendant. To demonstrate this,
it must
show that in all its possible meanings, the pleadings as they stand
are so vague and embarrassing that they are meaningless
and/or that
no cause of action is disclosed
[1]
.
[5]
A
n
exception that a pleading is vague and embarrassing cannot be
directed at a particular paragraph within
a
cause of action. The exception must go to the whole cause of action,
which must be demonstrated to be vague and embarrassing.
It
must be such that it is so “vague and embarrassing to the
extent that
the Defendant does not know the claim he has to meet”
[2]
.
[6]
Where
an exception is taken a court looks only to the pleading excepted to
as it stands, not to facts outside those stated in it
[3]
.
As such, the excipient
must
satisfy the court that it would be seriously prejudiced if the
offending pleading were allowed to stand
[4]
.
[7]
The
general purpose behind rule 18 is to define issues so as to allow the
other party to know what case it is he has to meet.
The
pleadings must be set out in such a way that enables the other party
to know what the issues are. The level of particularity
of a
pleading will depend on the facts and circumstances of each case.
Where a party’s pleadings fail to comply with the
provisions of
rule 18 and are vague and embarrassing, the other party can elect to
raise an exception in terms of rule 23(1) and
is not obliged to
invoke rule 30, which deals with irregular steps
[5]
[8]
Rule 18(4) and (6) respectively read as follows:
“
(4)
Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies for his claim,
defence
or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.”
“
(6)
A party who in his pleading relies upon a contract shall state
whether the contract is written or oral and when, where and by
whom
it was concluded, and if the contract is written a true copy thereof
or of the part relied on in the pleading shall be annexed
to the
pleading.
”
[9]
Rule 18(6) is specific to causes of action founded on contract and is
in addition to the more
general injunction in rule 18(4) to include
sufficient particularity. It thus specifies the minimum requirement
for particulars
of claim relying on contract. A party unable to
attach a written contract to the particulars because it is not in
possession thereof
should say so, so that the defendant knows that
secondary evidence will be led at the trial in order to prove the
contract.
Non-compliance
with the requirements of rule 18(6) may be condoned if there is no
prejudice to the defendant
[6]
.
FIRST
COMPLAINT
[10]
The concern here is that the Plaintiff avers in its particulars of
claim that at the time of the conclusion
of the agreement with the
Defendant it was represented by Mr Magale Zebulon Masemola, while the
Defendant was represented by its
Registrar, Mr Sello Legodi,
alternatively, a duly authorised representative. The Defendant
complains that the Plaintiff has omitted
to state who authorised Mr
Sello Legodi to represent the Defendant. Furthermore, the Plaintiff
does not specify who the other representative
pleaded in the
alternative is nor does it mention who authorised that
representative.
[11]
The Defendant referred this Court to Rules 22(2) and 22(3) of the
Uniform Rules of Court. Rule 22(2)
provides that
a defendant
shall in the plea either admit or deny or confess and avoid all the
material alleged in the combined summons or declaration
or state
which of the said facts are not admitted and to what extent, and
shall clearly and concisely state all material facts
upon which he
relies. Moreover, concludes the Defendant, Rule 22(3) states that
every allegation of fact in the combined summons
or declaration which
is neither denied nor admitted shall be deemed to be admitted.
[12]
The Defendant submits that it does not know how to plead to the
allegations pertaining to Sello Legodi
and the unknown representative
pleaded in the alternative. As such, it alleges that it is
embarrassed to plead thereto. The vagueness
in this instance leads to
embarrassment, which in turn causes prejudice.
[13]
Conversely, the Plaintiff contends that the Defendant has targeted a
particular paragraph within the
Plaintiff’s cause of action –
admission of liability by the Defendant. The Court should not
countenance this for as
long as the vagueness and embarrassment do
not strike at the core of the cause of action. To the extent that the
Defendant does
not object to the manner in which the cause of action
has been formulated at all, the complaint ought to be dismissed as
bereft
of any merit.
[14]
From the perusal of the exception it is manifest that the impugned
paragraph of the particulars of
claim does not contain the cause of
action. The cause of action is the admission of liability of the
amount due by the Defendant
stated in paragraph 10.1 of the
particulars of claim. The Defendant’s allegation that it is
embarrassed to plead to this
averment leaves this Court confounded. A
denial of each and every allegation contained in that paragraph as if
specifically traversed
should suffice.
[15]
In that manner the Defendant will not run the risk of leaving out
some other allegation, which it may
be inferred was not challenged
and therefore admitted as contemplated in Rule 22(3). It must also be
borne in mind that Rule 21(2)
dealing with request for further
particulars is also available to the Defendant where it feels that
the information is strictly
required for purposes of trial. The rule
provides that:
“
After
the close of pleadings any party may, not less than twenty days
before trial, deliver a notice requesting only such further
particulars
as are strictly necessary to enable him to prepare for
trial. Such request shall be complied with within ten days after
receipt
thereof.”
[16]
The argument that the Defendant cannot wait until the closure of
pleadings and then proceed to request
further particulars for trial
because it is required to plead now is disingenuous as demonstrated
above. The truth is the Defendant
can overcome that hurdle, if it
ever was, and then request further particulars as per the provisions
of Rule 21(2). In the circumstances,
I can perceive no prejudice
caused to the Defendant. The first complaint cannot be upheld because
the attack is not directed at
the whole cause of action and besides,
it can plead and embark on the procedure prescribed in Rule 21(2).
[17]
For what it is worth, I need to point out that it is not correct that
the Defendant has by choosing
to come to this Court utilizing an
exception ‘saddled the wrong horse’. As can be seen from
the case authority cited
above, in particular Robinson, where a
pleading does not comply with the provisions of Rule 18 rendering it
vague and embarrassing,
a Defendant does not have to approach Court
by way of a Rule 30 notice, which deals with irregular steps but can
choose to utilize
Rule 23)1), as the Defendant did
here.
SECOND
COMPLAINT
[18]
The complaint here is founded on Section 217 of the Constitution of
the Republic of South Africa the
essence of which is that as an organ
of State the Plaintiff is bound by the provisions of the Section to
procure goods and services
in accordance with a system which is fair,
equitable, transparent, competitive and cost-effective. The
Defendants asserts that
to the extent that the Plaintiff does not
aver in its particulars of claim that the services that were
allegedly sought from it
were sought in accordance with the system
set out in section 217 of the Constitution, the particulars of claim
do not disclose
a cause of action.
[19]
The complaint in this regard generated a debate on whether the
Plaintiff is an Organ of State. The
Plaintiff argued that nowhere in
the different pieces of legislation is
the Plaintiff regarded
or defined as an Organ of State. On the other
hand, the Defendant started from the premise that it was common cause
between the
parties that the Plaintiff is an organ of State. I do not
think that it is necessary for this Court to enter that debate at all
to decide whether or not the particulars of claim are excipiable.
[20]
The factual basis upon which the Plaintiff’s claim is built are
described in the particulars
of claim. Nowhere in the particulars of
claim does the Plaintiff intimate that its cause of action is based
on Section 217 of the
Constitution. Where a Defendant wishes to
attack a pleading on the ground that it does not disclose a cause of
action, it should
be a matter of course that the exception ought to
bear relevance to that cause of action described in the particulars
of claim.
This is not the case in
casu
.
[21]
The particulars of claim do disclose a cause of action albeit not one
that the Defendant thinks should
have been. I find it gratuitous to
traverse the parties’ argument on whether the Plaintiff is an
Organ of State or not. That
debate was totally unwarranted in view of
the cause of action set out in the particulars of claim –admission
of liability.
Against that background, I am constrained not to uphold
the exception in respect of the second complaint.
[22]
I make the following order:
1.
The exception is dismissed with costs
including those consequent upon the employment of two Counsel.
2.
The Defendant is directed to deliver its
plea within the period prescribed in the Uniform Rules of Court from
date of this order.
______________________________
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA
DIVISION, MBOMBELA
This judgment was
handed down electronically by circulation to the parties’
and/or parties’ representatives by email.
The date and time for
hand-down is deemed to be 10h00 on 7 January 2021.
APPEARANCES:
For the
Plaintiff:
Adv.S Tshikila
Instructed
by:
DMS Attorneys
For the
Defendant:
Adv.: V S Notshe SC
Instructed
by:
Nkadimeng Attorneys
Date of
Hearing:
08 October 2020
Date of
Judgment:
07 January 2021
[1]
Liquidators
Wapejo Shipping Co Ltd v Lurie Bros
1924 AD 69
at 74 and Trope v
South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at
268F.
[2]
See,
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
(W), at
899G
.
“…
where
a statement is vague, it is either meaningless, or capable of more
than one
meaning.
It is embarrassing in that it cannot be gathered from it what ground
is relied on, and therefore it is also somethingwhich
is
insufficient in law to support in whole or in part the action or
defence”
.
See,
Leathern
v Tredoux
1911 NPD 346
at 348.
[3]
Baliso
v Firstrand Bank Ltd t/a Wesbank
2017 (1) SA 292
(CC), at para [33].
[4]
Francis
v Sharp and Others
2004
(3) SA 230 (C)
[5]
Robinson
v Randfontein Estates GM Co Ltd
1925 AD 173
at 198; Imprefred (Pty)
Ltd v National Transport Commission
1993 (3) SA 94
(A) at 107C-E and
Nasionale Aartappel Kooperasie BPK v Price Waterhouse Coopers Ing
2001 (2) SA 790
T at 798F – 799J.
[6]
Duss
And Others NNO v Lowewest Trading (Pty) Ltd
2011 (1) SA 48
(KZD) at
paragraph 16.