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[2019] ZAGPPHC 119
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Mokgale N.O v City of Tshwane Metropolitan Municipality and Others (541/2018) [2019] ZAGPPHC 119 (2 May 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA DIVISION,)
(1)
REPORTABLE:
YES
/NO.
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO.
(3)
REVISED.
CASE
NO: 541 / 2018
2/5/2019
In
the matter between:
AT
MOKGALE
N.O.
Plaintiff
and
CITY
OF TSHWANE METROPOLITAN MUNICIPALITY
1
st
Defendant
MINISTER
OF HUMAN SETTLEMENT
2
nd
Defendant
MINISTER
OF PUBLIC WORKS
3
rd
Defendant
MEMBER
OF THE EXECUTIVE COUNCIL FOR
DEPARTMENT
OF LOCAL GOVERNMENT, HOUSING
PLANNING
AND DEVELOPMENT
NORTH
WEST
PROVINCE
4
th
Defendant
MOLEBOGENG
INVESTMENT CC
(REG
NO:
1998/049263/23)
5
th
Defendant
REGISTRAR
OF
DEEDS
6
th
Defendant
OLD
APOSTOLIC
CHURCH
7
th
Defendant
JUDGMENT
HOLLAND-MUTER
A/J:
INTRODUCTION:
[1]
This
is an exception in terms of which the excipients contend that the
particulars of claim of the respondent (the plaintiff in
the main
action) are vague and embarrassing. All seven excipients aver that
the plaintiffs particulars of claim lack the necessary
averments to
sustain a cause of action against the defendants and consequently
with the consent of all counsel present and in order
not to
unnecessary hear similar arguments on behalf of all excipients, it
was agreed that Mr Klopper on behalf of the 5
th
excipient
will argue the exception in general, and if necessary, counsel for
the other excipients may add to the argument. Mr Dauds
on behalf of
the plaintiff agreed with this approach.
[2]
I
need to mention that the junior counsel for the first excipient
arrived late with the explanation that her leader, Ncongwane SC,
was
not informed of the date of hearing. I will deal with this aspect
below but in view of the similarity of the exceptions, decided
to
hear the matter and not to postpone it indefinite. It only effects
the issue of costs for appearance.
[3]
I
deem it necessary to deal with the respondent's claim as set out in
the particulars of claim in the main action.
RESPONDENT'S
CLAIM:
[4]
The
plaintiffs claim against the defendants is based on a vindicatory
claim for the return of what is stated in the particulars
of claim as
the
"Morokong
Property",
annexing
a deed of transfer (title) T29361/1974 to describe the immovable
property claimed.
[5]
The
property is described as
Portion
16 (a portion of Portion 7) of the farm Nooitgedacht No256 JR, City
of Tshwane Metropolitan Municipality, Registration Division
JR,
measuring1216022 sq m, or 121, 6022 hectares in extent.
No
map or plan of the area was annexed.
[6]
In
the particulars of claim in par 11 thereof, the averment is made that
the defendants are in possession of the aforesaid property
and that
certain permanent structures were erected on the property:
6.1
Two
schools; the Odi FET College; the Odi Prison; a South African Police
Services station (not naming the specific SAPS station);
the Morula
Sun Casino & Hotel and the Mabopane Central City large retail
outlet. The above mentioned structures are allegedly
situated in the
Winterveld and Mabopane Suburbs. These suburbs were in the old
Republic of Bophutatswana before 1994, now the North
West Province.
This is judicially known to the court.
6.2
The
seventh defendant is cited in the particulars of claim to be situa
ted at 1741 Veronica Street, Magalieskruin Suburb in
Tshwane in
Gauteng (in the old Transvaal Province).
6.3
In
par 11 the plaintiff alleges that a golf course (unnamed) and four
(4) open public spaces or parks have also been established
, but
with out indicating the party or parties responsible therefore
and who presently occupy/runs the golf course.
6.4
In
par 12 of the particulars of claim avers that residential units
(ranging from RDP houses to middle and upper class housing) were
erected, also not labeling the party or parties responsible
therefore. Simi lar averments are made as to a Youth development
centre, a licensing centre, a shopping centre, a fuel centre and a
church. As remarked above, the shopping centre and the fuel
station
are not identified nor is any of the developed suburbs identified,
and there are numerous fuel stations and shopping centres
in the
claimed area.
6.5
The
respondent further gave notice of intention to amended its
particulars of claim in respect of the amount claimed from R 500
million to R 1 billion but no amended pages served before this court.
This will be dealt with below.
[7]
The
excipients all filed exceptions to the summons. The grounds upon
which the exceptions are based are basically the same and can
be
summarized as follows:
7.1
Rule
18(4) of the Uniform Rules of Court requires that a pleading shall
contain a clear and concise statement of the material facts
upon
which the pleader relies for his/her claim, defence or answer to any
pleading with sufficient particularity to enable the
opposite party
to reply thereto . The exception in this regard is that the
respondent (plaintiff) failed to identify each specific
portion to be
held by each of the excipients (defendants) and /or what the alleged
market value of each alleged portion is to which
each party is
individually liable to wards the respondent (plaintiff). The
crux of this ground is that it is not clear which
defendant is
holding which portion and what the alleged value of each portion is.
These are valid objections.
7.2
The
next ground of the exceptions is that it is unclear which excipient
(defendant) is in possession of which portion of the property
in
question. This is also a valid objection. It is impossible to
determine which fuel station or shopping centre are part of the
claimed property.
7.3
The
next ground for the exception is that the respondent (plaintiff) did
not alleged how and when the late Lebishe Morokong obtained
possession of the property and effected registration thereof and how
the late Lebishe Morokong lost possession of the immovable
property.
7.4
The
following ground for the exception is that it is not alleged how the
First, Second, Third, Fourth and Seventh defendants became
possessors
of what portion of the alleged property in question.
7.5
The
next ground for the exception is that there is no averment to
substantiate the alleged amount claimed for damages in the
alternative
claim. It is not clear who holds what portion or who is
liable for what amount in the alternative and how the amounts are
calculated
or determined to constitute damages in the amount of RI
billion.
7.6
It
is further not clear why the Ministers of Education and Safety and
Security are not parties to the action in view of the averments
with
regard to the educational institutions and Police Station forming
part of the alleged structures on what portion of the property
claimed by the respondent (plaintiff). The schools are not identified
and there are more than only two schools (educational institutions)
on the claimed property. Again there is uncertainty as to the places
in question.
7.7
The
respondent (plaintiff) alleges that various housing structures were
constructed on a portion of the claimed property. There
is no
indication where these developments were made, by whom, when and who
now occupies these housing structures. It may be that
this relates to
various residential developments and that these houses are owned by
possibly hundreds of different owners by virtue
of a valid deed of
title issued by the Deeds Offices responsible, and who may have an
material interest in the outcome of the action
and should be parties
to the action.
[8]
A
summons will be vague and embarrassing if it is not clear what the
cause of action is and in particular in this instance, the
particulars of each specific portion of land claimed from each
individual defendant. It is also the case where a plaintiff sues
more
than one defendant but fails to set out each claim and the specific
relief sought separately. See
Herbst
v Smit
1929 TPD 306.
[9]
It
is trite that a pleading can be both vague and embarrassing and
constitute an irregular step. In
ABSA
Bank v Boksburg Transitional Local Municipality
1997 (2) SA 415
Wat
418 E-H
the
court found that where pleadings fail to comply with Rule 18 and are
vague and embarrassing the defendant has a choice of remedies:
he may
bring an application in terms of Rule 30 to have the pleadings set
aside as an irregular step or raise an exception in terms
of Rule 23.
[10]
I deem it not necessary to in detail distinguish between the
distinction be tween Rule 30 and
Rule 23 but to state that, like
in
Jowell v Bramwell Jones
1998 (1) SA 836
W
where it was
held that the court should:
"first ask whether the exception
goes to the heart of the claim and, if so, whet her it is vague
and embarrassing to the
extent that the defendant does not know the
claim he has to meet..
" .
[11]
In
Living
Hands (Pty) Ltd and another v Ditz and another
2013 (2) SA 368
(GSJ),
Makgoba
J enunciated the principles governing an exception. The crux is to
determine whether the allegations as pleaded disclose
a cause of
action, not to by taking an exception, to embarrass the opponent by
taking advantage of a technical flaw but to dispose
of a matter
expeditious, the excipient to establish that upon any construction no
cause of claim is disclosed, to avoid an over-technical
approach and
to read plea dings as a whole and not to take advantage of minor
blemishes which could be cured by further particulars.
[12]
It
is also trite that the excipient has to persuade the court that upon
every interpretation of the pleading in issue, that the
pleading
bears no cause of action. It is also trite even if the pleading is
vague and embarrassing, the exception will fail unless
the excipient
shows that it will suffer substantial prejudice if it were compelled
to plead in light of the defective cause of
action.
[13]
The
ultimate test is any prejudice caused to the excipient. The test for
determining whether the pleading is vague and embarrassing
is whether
on the face value of the pleading a party is unable to answer to such
plea ding. See
All
Out Porperty and Complex Maintenance CC v Volker Harmen Schadewaldt
and Another Case Number 72678/2016 GNP (unreported)
on
12 April 2018, Shangisa AJ.
[14]
In
my view the objections raised by the defendants (excipients) do have
merit. I am of the view that the defendants are unable to
answer to
the flawed particulars of claim as discussed above. The defendants
cannot with any certainty determine who occupies what
portion of the
immovable property due to lack of particularity of each portion, of
the monetary value ascribed to each portion
on the alternative and
that parties who may have a direct interest in the claim are not part
of the proceedings. See above.
CONCLUSION:
[15]
There
are other further grounds for the exceptions but suffice to state
that those grounds listed above is very clear that the particulars
as
present are vague, embarrassing and lacks the necessary averments to
sustain a cause of action.
[16]
I
am of the view that the exceptions are not technical but that the
excipients (defendants) are embarrassed by the lack of averments
in
the particulars of claim and that these exceptions are not merely
promoting undue formalism
in
the
pleadings .
[17]
I
am of the view that the particulars of claim does not set out the
material facts upon which the defendants could reply. The exceptions
must in my view succeed.
ORDER:
[18]
As a
result I make the following order:
1.
The
exceptions are upheld with costs, the First excipient is however not
entitled to any costs for appearance in view of the non-attendance
by
it's senior counsel and the late arrival of the junior counsel after
arguments were finalized.
2.
The
respondent (plaintiff) is granted leave to amend the particulars of
claim, such amendments to be done within 30 (thirty) days
from date
of judgment.
J
HOLLAND-MUTER A/J
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
Date
of Judgment: 2 May 2019
Appearances:
For Plaintiff (Respondent):
RAMUSHU
MASHILE ATTORNEYS
Ref:
Mr Ramushu/MT/MAT9922
Tel:
011 444 3008
Email:
r
eception@mashiletwala.co.za
For
Defendants:
1
st
Defendant: NDOBELA ATTORNEYS
Ref:
MATHEBULA LIT 128/MAT 1170
Tel:
012-346 6710
Email:
treasure@nlink.co.za
2
ND
, 3
RD
& 4
TH
Defendants:
STATE
ATTORNEY, PRETORIA
Ref:
213/2018/29/TS
Tel:
012-309 1544
Email:
praoatsi@justice.gov.za
5
th
Defendant:
MARITZ
SMITH INC
Ref:
M5373.18/MM/AM
Tel:
012-342 0000
Email:
mike@maritz.co.
za
azaria@maritz.co.za
7
th
Defendant:
FA
STEYN ATTORNEY
Ref:
FAS/CS/FAS0043
Email:
cisca@fasteynattorneys.co.za
083
667 7557