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[2017] ZAGPPHC 286
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De Bruyn v Mile Inv 307 (Pty) Ltd and Others (72427/2013) [2017] ZAGPPHC 286 (5 May 2017)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
LOCAL DIVISION, PRETORIA)
CASE
NUMBER: 72427/2013
Reportable:
Yes
Of
interest to other judges: Yes
Revised.
5/5/2017
In
the matter between
FRANS
ROELOF PETRUS DE
BRUYN
PLAINTIFF
AND
MILE
INV 307 (PTY)
LTD
FIRST DEFENDANT
WILHELM
JOHANNES KRYNAUW
SECOND DEFENDANT
SAMUAL
PEACH
KRYNAUW
THIRD DEFENDANT
JUDGMENT
Molahlehi
J
Introduction
[1]
This is an exception in terms of which the excipients (referred
hereafter as defendants) contend that the plaintiff s particulars
of
claim do not contain averments necessary to sustain a cause of
action, alternatively that the particulars of the claim are vague
and
embarrassing.
[2]
The plaintiff has opposed the exception and raised a legal point
concerning the alleged failure to comply with the requirements
of
rule 23(1) of the Uniform Rules of the High Court (the Rules).
Background
of facts
[3]
The plaintiff, Dr De Bruin is a part-time stud cattle farmer, in
Rustenburg North West Province.
[4]
The first defendant Mile INV 307 (Pty) Ltd, is a company registered
in terms of the company law of the Republic of South Africa.
The
second defendant, Mr William Roelof Krynauw is an attorney and a
part-time game farmer, resident in Krugersdorp Gauteng Province.
The
third respondent Mr. Samuel Paul Krynauw is also a part-time farmer.
[5]
The plaintiff in his particulars of claim alleges that he suffered
damages arising from the alleged "wrongful and negligent
breach
of the legal duty towards" him by the defendants.
[6]
The alleged negligent conduct of the defendants arose from the
introduction of the blue wildebeest on the game farm portions
of
Rhebokhoek 101 situated in Rustenburg under title deed T83728/2010
which belongs to the first defendant.
[7]
The plaintiff contends that the blue wildebeest contaminated with a
biological virus known as "Malignant Catherral Fever,
commonly
known as "Snotsiekte" infected his stud of cattle (cattle).
The plaintiff's farm is situated directly adjacent
to that of the
first defendant's game farm.
[8]
The plaintiff further contends that the defendants knew or ought to
reasonably have known that the snotsiekte was a contagious
decease
and that the defendant's wildebeest could contaminate his cattle, and
that the virus was deadly.
[9]
The consequence of introducing the blue wildebeest in the game farm
resulted in the infection of the plaintiff's cattle with
snoetsiekte
resulting the death of 8 Brahaman cattle of the plaintiff valued of
R154 000 00. In addition the plaintiff incurred
costs for veterinary
services in the amount of R38 199 75. The plaintiff says he, as a
result of this, incurred also the transportation
costs in the amount
of R7 367.36 for having to remove the cattle temporarily to Koster,
in mitigation of his damages.
[10]
As alluded to earlier in this judgment, the plaintiff has raised a
legal point about the delay by the defendants in delivering
the
exception. The relevant time frames in relation to this point are as
follows:
a.
The summons against the defendant was issued
during November 2013.
b.
After entering appearance to defend the
defendants gave notice of intention to take an exception on 9 June
2014, if the causes of
their complaint to the particulars of claim
were not removed within 15 days of date of the notice.
c.
This was the first notice which seem to have
lapsed because the defendant's failure to deliver the exception
within the prescribed
10 days' notice.
d.
On
6 May 2015, the plaintiff issued a notice of bar on the defendants
calling upon them to file their plea.
e.
The defendant reacted to the notice of bar on 11
May 2015, by serving the second notice, calling upon the plaintiff to
remove cause
of complaint.
f.
The 10 days within which the plaintiff was to
remove the cause of the complaint expired in 1 June 2015. In light of
this the defendants
were supposed to have delivered their exception
on 15 June 2015. The exception was served on 30 July 2015 and filed 6
August 2015.
[11]
The plaintiff contends that the exception is fatally defective due to
the non compliance with the time frames provided
for in rule 23
(1) of the Rules. On the applicant's calculation the exception was
delivered some 37 court days out of time.
[12]
Rule 23 (1) of the rules provides as follows:
"(1) Where any
pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as
the case may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto
and may set it down
for hearing in terms of paragraph
(Q
of
sub rule (5) of rule (6): Provided that where a party intends to take
an exception that a pleading is vague and embarrassing
he shall
within the period allowed as aforesaid by notice afford his opponent
an opportunity of removing the cause of complaint
within 15 days:
Provided further that the party excepting shall within ten days from
the date on which a reply to such notice is
received or from the date
on which such reply is due, deliver his exception."
[13]
It is common cause that the defendants have not applied for
condonation for their failure to comply with the timeframe provided
for in rule 23 (1) of the Rules. Counsel for the defendants submitted
that the failure to comply with the timeframe of the delivery
of the
exception should be condoned even though application for condonation
had not been made. In this respect the defendants relied
on the
judgment of Wepener J in
Pangboume
Properties Ltd v Pulse Moving CC and Another,
[1]
where
the answering and the replying affidavits were filed outside the
timeframe provided for in the rules. The answering affidavit
was 9
days late and the replying affidavit 10 months late.
[14]
The issue that arose in the above case, was whether the court should
have regard to the replying affidavit which was filed
out of the
prescribed time frame and was not accompanied by a condonation
application.
[15]
The court further, in accepting the two affidavits, relied on various
judgments which deal with the approach to adopt when
dealing with
technical points raised in relation to non-compliance with the rules.
[16]
The broad principles that has emerged from case law dealing with the
approach to procedural technical points, such as the one
raised in
this matter, can be summarised as follows:
a.
The Court
does not in general encourage formalism in the application of the
rules because the rules are not an end in themselves.
[2]
b.
Technical
objections based on procedural defects should not be permitted unless
the other party would suffer prejudice as a result.
[3]
c.
The
superior Courts may in the exercise on their inherent power adjust
the rules depending on the circumstances of a given case.
[4]
d.
The rules of the courts are designed to achieve
justice and thus the courts will in the exercise of their inherent
power relax the
application of the rules where strict application
thereof may result in substantial injustice.
[17]
It is apparent from the authorities that the courts will not insist
on strict compliance with the rules where such an approach
would give
rise to an injustice. In other words the court will exercise its
inherent jurisdiction in relaxing or condoning non-
compliance where
that would serve the interest of justice.
[5]
This the court may do even where no formal application for
condonation is made or where such an application is made from the
bar.
[18]
It is apparent from the reading of the judgment in
Pangbourne
Properties
that in condoning the
non-compliance with the rules despite failure to apply for
condonation by the defendants, the court took into
account the
specific facts and the circumstances of the case. In this respect the
court took into account the following facts:
a.
the respondent had the replying affidavit in its
possession for four months prior to the hearing
b.
the objection concerning the non-compliance with
the rules was raised during the hearing
c.
the respondent failed to show prejudice it would
suffer if the late filing of the replying affidavit was to be
condoned
d.
the defendants' own answering affidavit was filed
late.
[19]
The above approach whilst correct should, however, be weighed against
the underlying purpose of the rules and more importantly
the times
prescribed therein, whose purpose is to ensure that the court has
control over its processes and speedy resolution of
disputes.
[6]
[20]
As stated in
Groot
Boom v NPA,
[7]
the
rules of the Courts serve the necessary purpose, the primary aim of
which is to ensure that the business of the courts run effectively
and efficiently. The Constitutional Court per Boshielo J, lamented
and noted with concern the trend that was developing regarding
non-compliance with the rules. The court recorded its displeasure at
the non-compliance with the rules and in that respect repeated
what
it had said in
eThekwinini
Municipality v lngonyama Trust
.
[8]
where
it was said:
"The conduct of
litigants in failing to observe Rules of this Court is unfortunate
and should be brought to a halt. This term
alone, in eight of the 13
matters set down for hearing, litigants failed to comply with the
time limits in the rules and directions
issued by the Chief Justice.
It is unacceptable that this is the position in spite of the warning
issued by this Court in the past.
In
[Van Wyk],
this Court
warned litigants to stop the trend. The Court said:
'There
is now a growing trend for litigants in this court to disregard time
limits without seeking condonation. Last term alone,
in eight out of
ten matters, litigants did not comply with the time limits or the
directions setting out the time limits. In some
cases litigants
either did not apply for condonation at all or if they did, they put
up flimsy explanations. This non-compliance
with the time limits or
the rules of Court resulted in one matter being postponed and the
other being struck from the roll. This
is undesirable. This practice
must be stopped in its tracks."
[21]
In my view, the facts and the circumstances in
Pangbourne
and those in the present matter are
distinguishable. The approach adopted in that case can therefore not
provide a basis from which
this court could direct that the time
frames as provided for in rule 23 of the Rules can be relaxed or that
non-compliance therewith
be condoned in the absence of an application
for condonation.
[22]
It was argued during the hearing on behalf of the respondent, it
would appear in the alternative, that the exception was not
filed
outside the time frame when regard is had to the service of the
second notice. It was further contended that the second notice
from
the respondent was a pleading and thus has to be included in the
consideration of the time frame set out in the rule.
[23]
It is clear from the reading of 23 (1) of the Rules that the
timeframe for the delivery of the exception is peremptory. An
exception in this regard had to be delivered within 10 days from the
expiry of the 15 day period referred to in the rule. It, thus,
follows that failure to comply with the prescribed time frame set out
in the rule is not a mere technical formality. The consequences
thereof are fatal to the exception.
[24]
In my view the second notice which was delivered by the defendants on
12 May 2015, requiring the plaintiff to remove the cause
of the
complaint is not a pleading. It is not a pleading because it does not
constitute “a further step in the proceedings.”
[25]
A notice similar to the second notice in this matter does not,as
stated by Yekiso J, in
Spencer
Leonard James McNally N.O and Others v Salvatore Condron and
Others,
[9]
constitutes
a pleading. The proposition that notice of intention to except does
not constitute a pleading was stated in that case
as follows:
"[24] In its notice
of exception, the defendant gives notice of its intention to except
to plaintiffs' particulars of claim
on the grounds that the
particulars fail to disclose a cause of action, alternatively, that
the particulars are vague and embarrassing.
The defendants could well
have excepted to the plaintiffs' particulars on the grounds that the
particulars do not disclose a cause
of action and that exception
would have been a valid response to the notice of bar delivered on
the defendants, but the defendants
elected not to do so. The delivery
of an exception on the basis that the particulars of claim lack the
averments which are necessary
to sustain a claim, would have been a
regular step because the notice of bar calls for delivery of a
pleading. As has already been
pointed out in paragraph (19] above,
there is authoritative support to the proposition that an exception
is a pleading the delivery
of which would have constituted a valid
response to plaintiffs' notice of bar.
[25] As has already been
pointed out, the defendants' notice of intention to except, on the
basis of the authorities referred to
in paragraph [21] to [22] of
this judgment cannot be said to advance these proceedings a stage
nearer completion."
[26]
At paragraph [22] of the judgment the learned Judge quoted with
approval what was said in
Jowell
v Bramwell-Jones
&
Others,
[10]
where
it was said:
"A further step in
the proceedings is one which advances the proceedings one stage
nearer completion and which, objectively
viewed, and manifests an
intention to pursue the cause despite the irregularity. Seen in that
light, the filing of a notice of
exception, which contains as an
alternative an application to set pleadings aside under the provision
of Rule 18(2) read with Rule
30, does not constitute the taking of a
further step within the meaning of Rule 30(2). Such an excipient is
concerned merely to
make full use of the remedies which the Rules
provide for an attack on a defective pleading."
[27]
In light of the above discussion, I am in agreement with the
plaintiff that failure by the defendant to deliver exception
timeously including failure to apply for condonation for the same
rendered the exception defective and has thus rendered it a nullity.
It follows from this that the exception stands to be dismissed for
this reason alone.
[28]
The exception would stand to fail even if the above was to be found
to be incorrect for the reasons set out below.
The
merits of the exception
[29]
The case of the defendants in this exception is that the plaintiffs
particulars of claim do not disclosed a cause of action
and further
that they are unable to plead because the plaintiffs particulars of
claim are vague and embarrassing.
[30]
Vagueness of pleadings has to do with the formulation of the claim
which generally results from the defect therein. As a general
principle an exception stands to fail even if the claim is shown to
be vague and embarrassing and thus in order to succeed the
excipient
has to show that not only is the cause of action vague and
embarrassing but that he or she will suffer serious prejudice
if
compelled to plead in the face of the defect in the cause of action.
[31]
In terms of rule 18(4) of the Rules every pleading is required to
contain a clear and concise statement of the material facts
upon
which the pleader relies on for his/her claim, defence or answer to
any pleading, with sufficient particularity to enable
the opposite
party to reply thereto. The underlying purpose of this rule is stated
in
Trope
v South African Revenue
Services,
[11]
as follows:
"It is, of course, a
basic principle that particulars of claim should be so phrased such
that a defendant may reasonably and
fairly be required to plead
thereto. This must be seen against the background of the further
requirement that the object of pleadings
is to enable each side to
come to trial prepared to meet the case of the other and not be taken
by surprise. Pleadings must therefore
be lucid and logical and in an
intelligible form; the cause of action or defence must appear clearly
from the factual allegations
made (Harms Civil Procedure in the
Supreme Court at 263-4). At 264 the learned author suggests that, as
a general proposition,
it may be assumed that, since the abolition of
further particulars, and the fact that non-compliance with the
provisions of Rule
18 now (in terms of Rule 18(12)) amounts to an
irregular step, a greater degree of particularity of pleadings is
required. No doubt,
the absence of the opportunity to clarify an
ambiguity or cure an apparent inconsistency, by way of further
particulars, may encourage
greater particularity in the initial
pleading.
The ultimate test,
however, must in my view still be whether the pleading complies with
the general rule enunciated in Rule 18(4)
and the principles laid
down in our existing case law."
[32]
The approach to adopt when dealing with an exception based on the
complaint that the particulars of claim are vague and embarrassing
is
set out in
Jowell v Bramwe/1- Jones and
Others
(supra) in the following terms:
"The framers of the
Rules have provided different remedies in Rules 18 and 23. The
presumption is that they are not co-extensive,
but designed to deal
with different situations. Rule 18 is restrictive and sets out the
bare minimum required of a factual averment,
while Rule 23 goes to a
vagueness and embarrassment which strikes at the whole of the cause
of action pleaded. As Cloete J said
in
Sasol
Industries
(Pty) Ltd tla
Sasol
1 v Electrical Repair
Engineering (Pty) Ltd tla L H Marthinusen
1992 (4) SA 466
(W)
at 469J-470, '. . . if a pleading both fails to comply with Rule 18
and is vague and embarrassing, the defendant has a choice
of
remedies' (ie to proceed by way of Rule 23 or Rule 30). I agree with
counsel that the crucial distinction between Rules 23 and
30 may be
summarised as follows:
(a)
an exception that the pleading is vague and
embarrassing may only be taken when the vagueness and embarrassment
strikes at the root
of the cause of action as pleaded; whereas
(b)
Rule 30 may be invoked to strike out the claim
pleaded when individual averments do not contain sufficient
particularity; it is
not necessary that the failure to plead material
facts goes to the root of the cause of action.
It is therefore incumbent
upon a plaintiff only to plead a complete cause of action which
identifies the issues upon which the plaintiff
seeks to rely, and on
which evidence will be led, in intelligible and lucid form and which
allows the defendant to plead to it.
The attacks mounted by the
defendants that their particulars of claim are vague and embarrassing
cannot found on the mere averment
that they are lacking in
particularity. This might, depending on the circumstances, allow an
application in terms of Rule 30. An
allegation that a pleading is
vague and embarrassing is a far more serious one than a complaint
about particulars.
Furthermore, in
approaching these exceptions, I shall bear in mind the following
general principles:
(a)
minor blemishes are irrelevant;
(b)
pleadings must be read as a whole; no paragraph
can be read in isolation;
(c)
a distinction must be drawn between the facta
probanda, or primary factual allegations which every plaintiff must
make, and the
facta probantia, which are the secondary allegations
upon which the plaintiff will rely in support of his primary factual
allegations.
Generally speaking, the latter are matters for
particulars for trial and even then are limited. For the rest, they
are matters
for evidence;
(d)
only facts need be pleaded; conclusions of law
need not be pleaded;
(e)
bound up with the last-mentioned consideration is
that certain allegations expressly made may carry with them implied
allegations
and the pleading must be so read: cf
Coronation
Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd
1982
(4) SA 371
(D) at 377, 3798, 379G--H. Thus, an allegation of
negligent conduct, especially where the negligence is particularised,
implies
that a reasonable person would not have so acted or would
have acted otherwise. So, in a case involving a motor vehicle
collision,
it is sufficient to plead that the defendant acted
negligently in particular respects. This implied that a reasonable
person would
not have so acted. If damage is alleged to flow
therefrom, this implies in turn that there was a breach of a legal
duty not to
act so."
[33]
The basic principles governing an exception were summarised by
Makgoka J in
Living
Hands (Pty) Ltd and Another v Ditz and Others
,
[12]
as
follows:
"(a) In considering
an exception that a pleading does not sustain a cause of action, the
court will accept, as true, the allegations
pleaded by the plaintiff
to assess whether they disclose a cause of action.
(b) The object of an
exception is not to embarrass one's opponent or to take advantage of
a technical flaw, but to dispose of the
case or a portion thereof in
an expeditious manner, or to protect oneself against an embarrassment
which is so serious as to merit
the costs. (c) The purpose of an
exception is to raise a substantive question of law which may have
the effect of settling the
dispute between the parties.
(d) An excipient who
alleges that a summons does not disclose a cause of action must
establish that, upon any construction of the
particulars of claim, no
cause of action is disclosed.
(e) An over-technical
approach should be avoided because it destroys the usefulness of the
exception procedure, which is to weed
out cases without legal merit.
(f) Pleadings must be
read as a whole and an exception cannot be taken to a paragraph or a
part of a pleading that is not self-contained.
(g) Minor blemishes and
unradical embarrassments caused by a pleading can and should be cured
by further particulars."
[34]
In the present matter the defendants attack on the plaintiff's
particulars of claim is directed at paragraphs 10-14 of the
particulars of claim.
The
first exception.
[35]
The plaintiff at paragraph 10 of the particulars of claim pleads that
he incurred veterinary costs in the amount of R38 199
75.
[36]
The defendants' exception is that paragraph 10 of the particulars of
claim is vague and embarrassing because the plaintiff
failed to plead
when the costs were incurred; the nature of service allegedly
provided and how the amount claimed is calculated.
The defendants'
complain in, this regard, is that as a result of the above it is
unable to assess the nature of the plaintiff's
claim and the quantum
of damages claimed.
[37]
In my view, there is no merit in the complaint when paragraph 10 is
read in its totality and also in the context of the particulars
of
claim. It is imminently clear from the reading of the paragraph that
the costs of the veterinary services were incurred during
the period
January 2011 to December 2011. It is stated at paragraph 9 of the
particulars of claim that the cattle of the plaintiff
died, as a
result of the infection between January 2011 and December 2011.
[38]
It is indeed correct that the particulars of claim do not state the
specific dates when the costs of the veterinary service
were
incurred. I firstly do not see why the defendant is unable to plead
to paragraph 10 of the particulars of claim. It seems
to me what the
defendant is asking for the plaintiff to provide is
facta
probatia
which they are at this stage not
entitled to.
[39]
I also do not agree with the assertion of the defendants that the
nature of the veterinary service cannot be ascertained from
the
particulars of claim. Paragraph 10 of the particulars of claim states
that veterinary service related to the assessments and
treatment of
the cattle related to snotsiekte. The details related to the specific
assessments and treatment to the cattle has
to do with
facta
probantia
which the defendant is not entitled
at this stage.
[40]
The complaint about the compensation concerning the veterinary
services is also unsustainable when regard is had to the particulars
of claim which, as already alluded to amounted to R38 199.75, the
breakdown of which is set out in the particulars of claim.
Second
exception
[41]
At paragraph 11 of the particulars of claim the plaintiff avers that
as a result of the defendant's wrongful and negligent
conduct he in
an attempt to mitigate his damages had to remove the cattle to
Koster, which created a barrier of more than 1 kilometer,
between the
cattle and the defendants' wildebeest. He estimated the costs of
removing the cattle to Koster, at R7 367.36.
[42]
The particulars of claim state very clearly that the cattle were
removed from Rustenburg to Koster, at the costs of R7 367.36.
There
is no merit in requiring the specific distance to be stipulated in
the particulars of claim.
Third
exception
[43]
At paragraph 12 of the particulars of claim the plaintiff claims for
the rental he paid for the accommodation of the cattle
at Koster,
which amounted to R19 740.00
[44]
It is not clear as to why the defendant is unable to plead to the
averment that the plaintiff paid the said amount for the
purposes of
accommodating the cattle and creating a 1 kilomiter barrier between
the cattle and the wildebeest.
[45]
As alluded to earlier the plaintiff averred in his particulars of
claim that he in mitigation of his damages moved and accommodated
the
cattle in Koster. The question whether the accommodation was for free
or not is a question of evidence which is best suited
to be dealt
with at the trial. The question of whether the amount of R19 740.00
was a fair and reasonable payment of the rental
is also best suited
to be dealt with at the trial.
The
fourth exception
[46]
At paragraph 13 of the particulars of claim the plaintiff avers that
in an attempt to prevent further damages he purchased
fodder to feed
the cattle which cost him the amount of R62 214.00.
[47]
It is apparent from the particulars of claim that the amount is
arrived at on the basis of it being a fair and reasonable costs
of
the fodder so purchased by the plaintiff. In my view, if the
defendants wish to dispute the fairness or the reasonableness of
the
amount they can do so at the trial by questioning the same or
presenting evidence to the contrary.
[48]
In as far as the place where and the date when the fodder was
purchased, I am in full agreement with the plaintiff that those
issues are irrelevant for the purposes of pleadings.
The
fifth exception
[49]
The defendants' complain in terms of this part of the exception is
that the reading together of paragraphs 12 and 13 make the
particulars of claim vague and embarrassing as it is not clear
whether the 1 kilometer barrier which the plaintiff avers to was
created by the purchase of the fodder or removal of the cattle to the
alternative accommodation.
[50]
It is apparent from the proper reading of the particulars of claim
that the purchase of the fodder occurred on a different
occasion to
that of the removal of the cattle to Koster. In my view this
exception is also unsustainable.
The
sixth exception
[51]
The plaintiff avers in paragraph 14 of the particulars of claim that
it was as result of the wrongful and negligent conduct
of the
defendants that he in a manner of seeking to mitigate his damages
engaged the services of a professional helicopter pilot,
for the
purposes of culling the wildebeest which cost him R31 132.00. This
was done with the agreement of the defendants and it
would appear it
was after the cause of action upon which the plaintiff relies on had
already arisen.
[52]
The defendant complains that it is not clear whether the plaintiff is
relying on contract or delict to sustain the claim under
paragraph 14
of the particulars of claim.
[53]
In my view, if there is anything that evidence vexatiousness on the
part of the defendant is this ground of the exception.
[54]
It is, in my view, eminently clear from the simple reading of
paragraph 14 that that paragraph deals with nothing but mitigation
of
damages subsequent to the damages which the plaintiff alleges to have
suffered. The costs referred to in that paragraph relate
to a
professional hunter whose responsibility was to cull the wildebeest,
for the purposes of preventing further damages arising
from the
contagious disease of snotsieke.
[55]
In my view this has nothing to do with the cause of action which from
the reading of the particulars of claim as a whole is
based on
delict. The averment in this paragraph do not serve to formulate the
cause of action but serves as an aspect thereof and
specifically
relate to the quantum of damages. It seems to me apposite in light of
the above observation, that paragraph 14 should
be quote in full. It
reads as as follows:
"As a direct result
of the defendants' and/or any one or more of them abovementioned
wrongful and negligently breach of the
legal duty owed to the
plaintiff, plaintiff (in an attempt to mitigate his damages and/or in
an attempt to prevent further damages)
by agreement with the
defendants, had to incur the cost of a helicopter pilot and
professional hunter and the costs for the rental
of the helicopter in
order to cull the remaining blue wildebeest on the game. The fair and
reasonable cost for the mentioned services
incurred by the plaintiff
in this regard amounted to R31,122,00."
Conclusion
[56]
I have earlier indicated that the exception stands to fail on the
basis of failure by the defendants to comply with the time
frame for
delivering the exception. I also alluded to the fact that the
exception stands to be dismissed on that ground alone.
[57]
In case it was to be found that the above finding was wrong, Iam of
the view that the exception is also unsustainable when
the merits
thereof are considered. And as concerning the costs I find that the
exception was unnecessary and also as indicated
earlier it was
vexatious and accordingly punitive costs is in the circumstances is
appropriate.
[58]
In the premises the following order is made:
1.
The exception is dismissed.
2.
The defendants are to pay the plaintiff the costs
of suit on the scale as between attorney and client, the one paying
the others
to be absolved.
___________________
E
Molahlehi
Judge
of the High Court: Johannesburg
Appearances:
For
the defendants: Wim Krynauw Attorneys
For
the Plaintiff: Strydom Bester Inc. Attorneys
Heard
on: 08 November 2016
Delivered
on: 05 May 2017
[1]
2013 (3) SA 140 (GSJ).
[2]
See Federated Trust Ltd v Botha 1978 (3) SA 645 (A).
[3]
See Trans-Africa Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A).
[4]
See Khunour and Others v M Fihrer1982 (3) SA 359.
[5]
See Hart and Another v Nelson
2000 (4) SA 368
(ECO).
[6]
In dealing with the purpose of the Rules the court in Federated
Trust v Botha (supra) the said: " The [Rules] are provided
to
secure the inexpensive and expedited completion of litigation before
the court."
[7]
[2014] 1 BLLR 1 (CC).
[8]
[2013] (5) BCLR 497 (CC).
[9]
(20406/11)
[2012] ZAWCHC 17
(9 March 2012)
[10]
1998 (1) SA 836 (W).
[11]
1993 (3) SA 264 (A).
[12]
2013 (2) SA 368
(GSJ).