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[2021] ZAECBHC 6
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Curoscore (Pty) Ltd v Nxumalo (1619/2020) [2021] ZAECBHC 6 (23 March 2021)
Reportable/Not
Reportable
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No:
1619/2020
In
the matter between:
CUROSCORE
(PTY)
LTD
Applicant (Respondent herein)
and
NQOBILE
MOFFAT NXUMALO
Respondent (Applicant herein)
JUDGMENT
MAKAULA
J:
A.
Background
:
[1]
This is an application purportedly in terms of Rule 23 of the Uniform
Rules of Court.
The plaintiff (Respondent herein) issued
summons against the defendant (Applicant herein) on 24 July 2020
seeking an order for
payment of arrear rentals, damages and an order
ejecting the defendant from a certain property. The defendant
filed a Notice
of Intention to defend and subsequently thereto an
application excepting to the particulars of claim. I should
mention upfront
that the defendant is in person.
B.
The Exception
:
[2]
For purposes of completion and clarity I shall refer to the grounds
of exception (long
as they are) as they appear on the Notice of
Exception.
“
EXCEPTION
– UNCLEAN HANDS
1.
Curoscore (Pty) Ltd (Curoscore) approaches this Honourable Court with
unclean
hands for having:
a.
Served on the Defendant, based on this same claim, a fraudulent
eviction Court
Order via the sheriff of the Court under case 1238/19
of this Honourable Court.
b.
Engaged in self-help on numerous occasions as fully described in the
spoliation
application under case number 2703/19 of the Honourable
Court.
EXCEPTION
– DOCTRINE OF ELECTION
2.
What Curoscore has done in instituting afresh their action that was
initially
instituted at the Magistrate Court, based on the term of
the alleged contract on which Curoscore seeks to stand on, is
impermissible
in terms of the doctrine of the right of election, in
that the Plaintiff initially instituted this action at the Magistrate
Court
and the matter is
lis pendis. (Sic)
EXCEPTION –
COURT OF FIRST INSTANCE
3.
It is accepted that the High Court has concurrent jurisdiction with
the Magistrate
Court but only unusual, extraordinary, difficult and
complicated cases may force a party to approach the High Court as the
Court
of first instance. Curoscore’s particulars of claim
do not show that this is such a case and, the derogation of choice
of
forum is not explained by Curoscore in their papers.
4.
Curoscore issued papers in the High Court in violation of the very
alleged lease
agreement which they seek to stand on, there is further
no reasons provided why Curoscore should not be held to the bargain
contained
in the alleged lease agreement to which they seek to
sustain their claim, this cannot be right or fair and will lead to an
injustice.
5.
Curoscore is hauling the Defendant to the High Court at considerable
higher cost
when the matter can be resolved by the Magistrate Court
at considerable lower cost, in circumstances where the alleged lease
agreement
Curoscore seeks to sustain its claim specifically provides
that such matters should be resolved under the jurisdiction of the
Magistrate
Court.
EXCEPTION –
THE MAGISTRATE COURT BAR AGAINST CUROSCORE
6.
The withdrawal of the same action, based on the same facts, at the
Magistrate
Court under case after Plaintiff’s summary judgment
application was dismissed and a bar on further pleadings on the part
of Curoscore makes this current action which is the same action as
was withdrawn under case 281/19 bad in law seeing as the particulars
of claim have now been amended in the face of the bar.
EXCEPTION –
lis alibi pendens
1.
An exception is based on the ground of
lis alibi pendens
because
the courts are a public resource under severe pressure with congested
court rolls prejudiced by repeated litigation involving
the same
parties in this matter and the Defendant respectfully avers that this
Honourable Court ought not to decide the merits
because the last
thing that already congested court rolls require is further
congestion by an unwarranted proliferation of litigation.
2.
The Defendant contends that all the proceedings by Curoscore both at
the Magistrate
Court under case 281/19 and this Honourable Court
under case 1238/19 and 2703/19 including the current cases under case
1619/20
and 1620/20 of this Honourable Court are between the same
parties based on the same cause of action and related to the same
subject
matter.
3.
The claim for cancellation in the application that is the subject
matter of the
present application is based on non-payment of rental
for a period that overlaps with the period on which the claim for
cancellation
was based in both the Magistrate and previous High Court
proceedings.
EXCEPTION –
LAWFUL IMPEDIMENT EXISTS
4.
The fraudulent Court Order served on me through the sheriff of the
Court by Curoscore
under case 1238/19 of this Honourable Court
presents a number of legal difficulties:
a.
The order which is based on the same claim as this current one has
not been set
aside and therefore remains alive and therefore is a
hurdle before this current action.
b.
This order further emphasis further that Curoscore does not approach
this Honourable
Court with clean hands. (
Sic
)
EXCEPTION
– MAGISTRATE COURT CASE 281/19 IS STILL EXTANT THROUGH COUNTER
CLAIM
5.
The Magistrate Court matter under case 281/19 on the same claim is
still extant;
regardless that Curoscore decided to withdraw their
claim after a failed Summary Judgment application and bar on further
pleadings,
the Defendant’s counter claim was not withdrawn and
this Honourable Court ought to reject Curoscore’s attempt to
institute
proceedings relating to an action that is incomplete at the
Magistrate Court.
EXCEPTION –
ABUSE OF PROCESS & DECEPTION
6.
The current application amounts to an abuse of process through the
proliferation
of litigation by Curoscore concerning/based on the same
cause of action and related to the same subject matter of
cancellation
of a lease on account of alleged non-rental payment
based on the same cause of action as this current action in this
Honourable
Court.
EXCEPTION –
SPOILATION
1.
Curoscore having engaged in several acts of self-help as stated
above, having
now partly admitted; in their application under case
1620/20 of this Honourable Court, to one act of unlawfully breaking
into the
property using a grinder and there further being an extant
spoliation application in relation to further and multiple acts of
Curoscore’s
continued self-help, the Defendant is entitled to
be restored to possession before all else.
2.
The principle is that illicit deprivation must be remedied before
Curoscore places
before the courts for decision any alleged competing
claims to the alleged object or property.
KINDLY
FURTHER TAKE NOTICE
that unless the cause of
complaint is removed within 15 days from receipt of this notice,
defendant will approach the abovementioned
Honourable court and raise
the above and action as a whole.
ALSO
FURTHER TAKE NOTICE
that the defendant; as
soon thereafter as he may be heard, will request at the hearing of
the exception, that the exception be upheld
with costs together with
and application that plaintiff’s particulars of claim be struck
out and the action dismissed with
costs”.
[3]
Again on 1 September 2020 the defendant filed a Notice of Motion
seeking the following
order:
“
1.
That the Applicant’s exception is upheld.
2.
That the Respondent’s (Plaintiff) Particulars of Claim and
dismissal of
the action with costs (
Sic
).
3.
Further and alternative relief”.
[4]
The Notice of Motion is supported by an affidavit which is tilted
“FOUNDING
AFFIDAVIT IN SUPPORT OF APPLICATION TO STRIKE OUT”.
Part of the affidavit reads as follows:
“
3.
I am the Applicant in this matter and I am not represented in legal
terms but according
to my faith I believe I am represented by the
Advocate of all advocates The Holy Spirit in my Lord and Saviour’s
name, Jesus
Christ.
4.
. . .
5.
I depose hereto in support of my application to strike out and
dismiss Curoscore’s
action in terms of their summons and
particulars of claim.
5.1
The essence of my case is captured in the Exception Notice Attached
and labelled “
EXP01
”.
5.2
The essence of my case is further supported by the averments
contained in the affidavit
I deposed to in my counter-application to
Curoscore’s application under case 1620/20. The said
affidavit is attached
and labelled “
AC001
”.
6.
Averments made or Submissions raised should not be construed to be
exhaustive,
I only highlight those issues which I deem appropriate in
relation to my opposition of Curoscore’s application and in
support
of my counter application.
7.
Any submissions that I may make of a legal nature are not to be
misconstrued
as a claim of me being an expert in the legal field.
MY CASE
8.
I refer the Honourable Court to my Notice of Exception, Annexure
“
Exp01”
.
9.
I refer the Honourable Court to my affidavit herein attached,
Annexure “
AC001”
.
10.
I include the facts, evidence, averments and arguments contained in
Annexure “
AC001”
as being incorporated into this
affidavit and therefore forming part of facts, evidence, averments
and points of law of this affidavit.
11.
I therefore present Annexure “
AC001”
as forming
the factual matrix upon which I rely in support of my grounds for
this application.
CONCLUSION
108.
It is my respectful averment that I have made out a case for the
relief as stated below.
RELIEF IN COUNTER
APPLICATION
109.
Relief as reflected in my notice of motion.
_____________
DEPONENT
”
[5]
On 2 November 2020, the defendant filed a Notice tilted “APPLICANT’S
NOTICE
OF COMPLAINT IN TERMS OF RULE 30 and RULE 30A”.
The relevant
portion of the Notice reads as
follows:
“
KINDLY
TAKE NOTICE
that the Defendant/Applicant
hereby gives notice that the following aspects of the
Plaintiff/Respondent’s (Curoscore) Notice
of Set Down served on
him by the Curoscore and dated
20 October 2020
comprises an irregular step and/or a failure
to comply with the Rules of Court:
1.
WHEREAS:
a.
According to Plaintiff/Respondent,
Curoscore
approached and/or
was in contact with the Deputy Judge President on the basis of
Applicant/Defendant’s cause of complaint
in the form of
“
Notice
” of Exception dated 11 August 2020.
b.
Applicant/Defendant’s notice of exception clearly afforded
Curoscore 15
days to remove cause of complaint, failing which he
would then approach the Honourable Court to raise his exception and
further
apply that the Honourable Court strike out Curoscore’s
claim as a whole.
c.
On the 14
th
of August 2020, Curoscore filed a notice to
oppose Applicant/Defendant’s “
Notice
”, which
I aver is neither here or there given that all the
Applicant/Defendant had filed is a mere “notice”,
as he
is doing now, and the proper response ought to have been to remove
cause of complaint or chose not to.
d.
The cause of complaint not having been removed, Applicant/Defendant
then therefore
filed his application via notice of motion and
founding affidavit on the 1
st
of September 2020.
e.
Curoscore never filed a notice to oppose the application and
therefore the application
remains unopposed.
2.
In light of the above the notice of set down served on
Applicant/Defendant by
Curoscore, that further does not bear the
Court stamp, is an irregular step and/or does not comply with the
rules because it sets
down an exception on the basis of a mere
“
notice
” which in fact was calling upon them to
remove cause of complaint.
3.
It would appear further again that Curoscore yet again proceeded in a
manner
that flies in the face the
audi alteram partem
rule
which is considered to be a fundamental principle of justice or
equity of the principal of natural justice. Curoscore,
according to them, approached/contacted the Deputy Judge President in
Applicant/Defendant’s absence to obtain set down of
a matter
that in fact does not exist. What ought to have been set down,
albeit it on the unopposed roll,
is the application dated 1
st
September 2020 to which Curoscore however did not file notice to
oppose.
4.
Curoscore is in fact seeking to have the Court commit an injustice
which has
been their
modus operandi
in the course of this
litigation because in every instance where Applicant/Defendant has
been given an opportunity to respond, which
right he exercised,
Curoscore has withdrawn their action or application and then commence
new proceedings on the same cause of
action but under a different
case number”.
[6]
The plaintiff avers in the POC that the contract was entered into
with Khato Consulting
Engineers (Pty) Ltd (Khato) and the defendant.
In clauses 9 and10 of the POC the plaintiff’s averments are the
following:
“
9.
On the 30
th
November 2018 the Property was registered in Plaintiff’s name
by virtue of a valid sale agreement concluded between the Plaintiff
and Khato.
10.
In law, and by virtue of the alienation of the Property by Khato and
the registration
thereof in the name of the Plaintiff, the Plaintiff
stepped into the shoes of Khato as lessor and as a matter of law
became entitled
to the rent and all the other rights flowing from the
Agreement of Lease, Annexure “POC1””.
[7]
Rule 23 of the Uniform Rules of Court deals with Exceptions and
Applications to strike
out. Rule 23(1) stipulates that where a
pleading is vague and embarrassing or lacks averments which are
necessary to sustain
an action (in this instance) the opposing party
may deliver an exception thereto and may set the matter down for
hearing.
There are two provisos to section 23(1) which are not
relevant for the purposes hereof because there was compliance or no
party
contended otherwise.
[8]
An exception (in part) is a legal objection to the plaintiff’s
pleading.
It complains of a defect inherent in a pleading.
Admitting for the moment that all the allegations in a summons are
true,
it asserts that even with such admission the pleading does not
disclose a cause of action. An exception may only be taken
when
the defect in the pleadings appears
ex
facie
the pleading, since no facts may be adduced to show that the pleading
is excipiable
[1]
. It
should be noted further that a declaratory order may not be sought
under the guise of an exception
[2]
.
It is permissible however, that where it is apparent
ex
facie
the particulars of claim that the court lacks jurisdiction, or that
the plaintiff does not have
locus
standi
,
the defendant may take an exception rather than file a special
plea
[3]
.
[9]
In the instant matter the defendant does not plead that the
particulars are vague
and embarrassing or lack the necessary
averments to sustain a cause of action as is required by the Uniform
Rules of Court and
as is required by the law
[4]
.
Furthermore, having regard to the Notice of Exception and the grounds
referred to in paragraph 2 above, I am at loss at
to what the grounds
purport to be. Certainly as one reads them, they do not either
constitute an exception in the legal sense
or speak to a defence that
this court has no jurisdiction or the plaintiff lacks
locus
standi
to bring this application. For example under the heading Court
of First instance, the defendant accepts that this court has
jurisdiction to hear the matter. The plaintiff’s
registered address and the defendant residence are within the
jurisdiction of this court. The property which is the subject
of the
lis
between the parties is within the jurisdiction of this court.
Furthermore, clause 21.2 of the Lease Agreement between the
parties
(attached to the summons) reads”
“
The
Landlord reserves the right to institute proceedings in the High
Court where permitted to do so in law”.
[10]
The argument raised that this court has no jurisdiction lacks merit.
Furthermore, in a
veiled manner
[5]
the defendant refers to a summary judgment application and a “bar
of further pleading on the part of Curoscore” in
the Magistrate
Court under case 281/19 “bad in law seeing as the particulars
of claim have been amended in the face of the
bar”. This
averment is confusing and the defendant has not annexed or referred
to the record of the proceedings which
lay the allegations bare.
There are numerous other case numbers before this court which are
merely referred to without substance
and proof of such proceedings.
These unsubstantiated allegations should be viewed, I surmise, under
the
lis
pendens
defence
raised vaguely. I suppose referral to High Court case numbers
1238/19, 2703/19, 1619/20 and 1620/20 was an attempt to substantiate
that defence. No basis has been laid for such a defence and no
cases were incorporated herein to establish such a defence.
On
the issue of
locus
standi
.
By virtue of paragraph 10 of the POC, the plaintiff has
locus
standi
to bring the action. I am lost as to what kind of exception the
defendant is raising against the POC in paragraph 2 of the
exception
above. I do not want to overburden this judgment by dealing
with each and every issue raised in his purported exception.
The last paragraph of the Notice of Exception notifies the plaintiff
that unless the cause of complaint is removed, within 15 days,
the
defendant will approach this court and “raise the above and
action as a whole”. In the light of the grounds
of
exception that have been raised and dealt with above, I do not wish
to assume that this is a typographical error or anything
related to
that. The kind of notice by the defendant is as unintelligible
as the grounds of exceptions are. The grounds
of exception are
incomprehensible to say the least. I spelt them out as they
appear on the exception itself to illustrate
this fact. Rule
18(4) of the Uniform Rules of Court provides that:
“
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
”. (Emphasis added)
[11]
As it can be observed from the except above
[6]
little can be doubted that the defendant has not complied with Rule
18(4). It was difficult for me to even begin to summarise
or
paraphrase the grounds relied upon, because I could not discern what
was actually pleaded by the defendant. It is the
duty of the
defendant to persuade this court that upon every interpretation the
POC can bear no cause of action, is disclosed.
[7]
The defendant has failed to establish that.
[12]
I agree with the submission by Mr Beyleveld for the plaintiff that
the defendant in his exception
seeks to resolve the factual disputes
he has against the plaintiff which are not based on the POC as they
stand. Even the
special pleas raised under the guise of an
exception, should not have been raised as such because of their
nature. I say
so because it is in the nature and the manner in
which such special pleas are raised that the plaintiff should have
been allowed
to replicate. Herbstein and Van Winsen
[8]
deals with the difference between a special plea and exception amply
as follows:
“
The
essential difference between a special plea and an exception is that
in the case of the latter the excipient is confined to
the four
corners of the pleading. The defence raised on exception must
appear from the pleading itself; the excipient must
accept as correct
the factual allegations contained in it and may not introduce any
fresh matter. Special pleas, on the other
hand, do not appear
ex facie
the
pleading. If they did, then the exception procedure would have
to be followed. Special pleas have to be established
by the
introduction of fresh facts from outside the circumference of the
pleading, and those facts have to be established by evidence
in the
usual way. Thus, as a general rule, the exception procedure is
appropriate when the defect appears
ex facie
the pleading, whereas a special plea is appropriate when it is
necessary to place facts before the court to show that there is
a
defect. The defence of prescription appears to be an exception
to this rule, for it has been held that that defence should
be raised
by way of special plea even when it appears
ex
facie
the plaintiff’s particulars of
claim that the claim has prescribed, apparently because the plaintiff
may wish to replicate
a defence to the claim of prescription, for
example an interruption”.
[13]
In the instant matter, the purported exception is a conglomeration of
various defences and processes.
As can be gleaned from the
founding affidavit referred to in paragraph 4 above, it speaks to an
application to strike out which
also, as the papers stand, is in
support of the exception raised. Rule 6(15) of the Uniform
Rules deals with the striking
out from the affidavit of any matter
that is scandalous, vexatious or irrelevant. This has nothing
to do with exceptions
and no such averments are made by the
defendant. Furthermore, the defendant as reflected in paragraph
5 above also launched
a Notice in terms of Rule 30 and Rule 30A.
The averments as can be read from the notice deal with the issues
raised in the
exception. It is further to be noted that even
that which is raised as an application was not proper and was not
pursued
by the defendant. No application in terms of Rule 30
was set down. It remains forming part of this application.
[14]
Based on the above, the defendant has failed to raise any grounds for
an exception and the application
stands to be dismissed with costs.
[15]
Consequently, I make the following order.
The
application is dismissed with costs.
M
MAKAULA
Judge
of the High Court
Appearances
:
Applicant
in
person:
Mr NM Nxumalo
Contact
No:
064 5755 151
Counsel
for the
Respondent:
Adv A Beyleveld (SC)
Port Elizabeth
Instructed
by:
Leon Keyter Attorneys
Port Elizabeth
Date
judgment
reserved:
12 November 2020
Date
judgment
delivered:
23 March 2021
[1]
Herbstein and Van Winsen: The Civil Practice of the High Courts of
South Africa, Fifth Edition, Volume 1, Cilliers Loots Nel
at (page
633).
[2]
Barclays National Bank v Thompson 1989(1) SA 547 (A) at 555.
[3]
Herbstein Van Winsen (pages 633 to 634).
[4]
Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers
Ing en Andere 2001(2) SA 790 T; and Trope and Others v SA
Reserve
Bank 1993(3) SA 264(A).
[5]
Presumably under clause. (Court of First instance).
[6]
Notice of Exception and the founding affidavit in support of the
application to strike out.
[7]
Herbstein and Van Winsen page 636.
[8]
Pages 599 to 600.