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[2017] ZAFSHC 97
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Absa Bank Limited v Mocke (1324/2016) [2017] ZAFSHC 97 (15 June 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1324/2016
In
the matter between:
ABSA
BANK LIMITED
Plaintiff
and
JACO
PELZER MOCKE
Defendant
JUDGMENT
BY:
SNELLENBURG, AJ
HEARD
ON:
19 MAY
2017
DELIVERED
ON:
15 JUNE 2017
[1]
This is an exception taken against the plaintiff’s particulars
of claim on the basis that it is vague and embarrassing.
[2]
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 and the cause of action or defence must clearly appear
from the
factual allegations made. The particulars of claim should be so
phrased that the defendant may reasonably and fairly
be required to
plead thereto.
[1]
In the famous
judgment by Grosskopf, JA in
Trope
v South African Reserve Bank and Another and Two Other Cases
[1993] ZASCA 54
;
1993
(3) SA 264
(A) at 273A-B, the appellate Judge articulated the
requirement as follows:
“
It
is trite that a party has to plead - with sufficient clarity and
particularity - the material facts upon which he relied for
the
conclusion of law he wishes the Court to draw from those facts
(Mabaso v Felix
1981 (3) SA 865
(A) at 875A-H; Rule 18(4)). It
is not sufficient, therefore, to plead a conclusion of law without
pleading the material facts giving
rise to it. (Radebe and Others v
Eastern Transvaal Development Board
1988 (2) SA 785
(A) at
792J-793G.)”
But
as explained in
Jowell
v Bramwell-Jones
and
Others
1998
(1) SA 836
(W)
at
913B-G:
“
.
. . (T)he plaintiff is required to furnish an outline of its case.
This does not mean that the defendant is entitled to a framework
like
a crossword puzzle in which every gap can be filled by logical
deduction. The outline may be asymmetrical and possess rough
edges
not obvious until actually explored by evidence. Provided the
defendant is given a clear idea of the material facts which
are
necessary to make the cause of action intelligible, the plaintiff
will have satisfied the requirements.”
It
is therefore incumbent upon a plaintiff 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 an intelligible and lucid
form and which allows the defendant to plead to.
[2]
[3]
An exception on the basis that the pleading is vague and embarrassing
strikes at the formulation of the claim, not the validity
of the
cause of action. The allegations in the pleading that forms the
subject of the exception are accepted to be correct
for purposes of
adjudicating the exception. Although a cause of action appears
from the pleading, the objection is aimed
at some defect or
incompleteness in the manner in which the claim is set out which
results in embarrassment to the defendant.
[3]
The vague and embarrassing exception however relates to whole
cause of action, not a specific or particular paragraph within
a
cause of action.
[4]
When
an exception is taken on the ground that the pleading is vague and
embarrassing, the consideration that courts should
deal with the
exception sensibly and not in over-technical manner does not apply,
because an exception may be taken to protect
oneself against
embarrassment.
[5]
The
vagueness must however go to the root of the matter and save for an
instance where the exception is taken for purpose
of raising a
substantive question of law which may have the effect of a the
dispute between parties, an excipient should make out
very strong
case before he should be allowed to succeed. The excipient must
therefore satisfy the court that it would be seriously
prejudiced if
the offending pleading were allowed to stand.
[6]
[4]
Where the excipient relies on the ground that the pleading is vague
and embarrassing the enquiry involves a two-fold consideration,
namely whether the pleading lacks particularity to the extent that it
is vague and, if so, whether the vagueness causes embarrassment
of
such a nature that the excipient is prejudiced.
[7]
In
Trope
supra
the court held that the ultimate test is still whether the pleading
complies with the requirements of Rule 18(4).
[5]
There is one further relevant requirement, namely the excipient must
set out lucidly and with the necessary particularity the
grounds of
complaint in its Rule 23(1) notice to cure and, if the matter remains
unresolved, thereafter in the exception. The exception
is a pleading
and as such also subject to the requirements of Rule 18(4) and
susceptible to an exception if it lacks particularity
and is vague
and embarrassing. The notice to cure in terms of Rule 23(1) should be
formulated with care to advise the other party
properly of the nature
and grounds of the complaint he is called upon to remedy. Failure to
properly advise the other party in
the Rule 23(1) notice of the cause
of complaint defeats the very purpose that Rule 23(1) seeks to
achieve, namely an opportunity
to remove or remedy the cause of
complaint.
[6] Rule 18, in relevant
parts, reads:
“
(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.
”
[7]
Where a pleading does not comply with the provisions of rule 18 the
other party has the option to either proceed in terms of
Rule 30 or
Rule 23.
[8]
[8]
The plaintiff is a commercial bank. It relies on two separate causes
of action in its particulars of claim both stemming from
written
agreements alleged to have been concluded with the defendant. The
plaintiff already amended its particulars of claim pursuant
to a Rule
23(1) notice to cure by the defendant. Subsequent to the amendment
being effected the defendant, when given notice in
terms of Rule 26,
served the Rule 23(1) notice to cure which lead to this exception.
[9]
It will be beneficial to first identify the complaints and then
evaluate the formulation of the plaintiff’s claims taking
into
consideration the complaints. The defendant’s complaints as
articulated in its Rule 23(1) notice to cure and which forms
the
basis of its exception, are the following (in summary whilst using
the same terminology the defendant used): regarding both
claims 1 and
2 the plaintiff’s claim does not comply with Rule 18(6) and is
vague and embarrassing [this appears to be an
introduction to the
specific grounds relied upon regarding the two claims]; regarding
claim 1 (i) the plaintiff has not indicated
where the agreement
relating to claim 1 which was reached on 1 October 2014 has been
concluded as set out in paragraphs 4.1 to
4.3 of the particulars of
claim ; (ii) the plaintiff has not indicated who represented the
plaintiff in concluding the agreement
with the defendant relating to
claim 1 which was reached on 1 October 2014 as referred to in
paragraphs 4.1 to 4.3 of the particulars
of claim; and (iii) the
plaintiff has not indicated on which date the amount of R1 433 310.27
relating to claim 1 should
have been paid by the defendant; regarding
claim 2 (i) the plaintiff has not indicated where the agreement
relating to claim 2
which was reached on 1 October 2014 has been
concluded as set out in paragraphs 14.1 to 14.3 of the particulars of
claim ; (ii)
the plaintiff has not indicated who represented the
plaintiff in concluding the agreement with the defendant relating to
claim
2 which was reached on 1 October 2014 as referred to in
paragraphs 14.1 to 14.3 of the POC; and (iii) the plaintiff has not
indicated
on which date the amount of R23 891.73 relating to claim 2
should have been paid by the defendant. The defendant concludes that
he is not able to plead to the plaintiff’s particulars of claim
due to it being vague and embarrassing.
[10]
I propose to deal first with the complaints levelled against the
formulation of claim 1.
[11]
Regarding the relevant parts of claim 1 the plaintiff alleges as
follows: (i) it gave a pre-agreement statement and quotation
for an
overdraft facility in the amount of R1 800 000.00, dated 1
October 2014 and in writing (appended to the particulars
of claim as
annexure “B1”), to the defendant; (ii) the terms and
conditions applicable to the overdraft facility appears
from annexure
“B2” which were also signed on 1 October 2014; (iii) the
aforesaid quotation was accepted in writing
by the defendant on 1
October 2014 as appears from annexure “B2”; (iv) pursuant
to the acceptance of the quotation
the plaintiff issued a bank
facility letter on 3 October 2014 whereof a copy is appended to the
particulars of claim as annexure
“B3”; (v) the terms and
conditions of the overdraft facility appears from the bank facility
schedule attached to the
particulars of claim as annexure “B4”;
(vi) the defendant accepted the terms and conditions of the overdraft
facility
in writing and this acceptance lead to the conclusion of a
written agreement between the plaintiff and defendant which was
concluded
at Heilbron whilst it was represented by A Snyman and the
defendant acted in person. In terms of the agreement an overdraft
facility
by means of a cheque account was approved and allocated to
the defendant with a specific account number; the facility in the
amount
of R1 800 000.00 had to be reduced to Rnil on 5 June
2015. As for the default the plaintiff alleges in paragraph 12.1
that
the defendant failed to reduce the overdraft by 5 June 2015 as agreed
and that during the existence of the agreement between
the parties
the overdraft facility became overdrawn to the amount of
R1 433 310.27.
[12]
The plaintiff relies on the fact that the defendant failed to reduce
the full amount as agreed as result whereof the plaintiff
is entitled
to claim payment.[13] The plaintiff does not rely on separate
agreements, but, as stated, only on the fact that with
acceptance of
the terms and conditions to the schedule, a written agreement was
concluded. It has complied with the requirements
of Rule 18(6) in
relation to the agreement it relies upon. It also pleads when the
amount had to be paid, namely 5 June 2015. From
the allegations in
the particulars of claim it is clear that the plaintiff’s case
is that the amount of R1.8 million as advanced
would be payable in
one instalment on 5 June 2015. It goes on to state that during the
existence of the agreement the defendant
only overdrew the account to
R1 433 310.27.
[14]
It is essential to understand the defendant’s true complaint as
it emerged during argument of the matter. What
the defendant in
fact complains of is this:
14.1
the acceptance by the defendant of the pre-agreement statement and
quotation lead to the conclusion of an agreement between
the parties.
The plaintiff did not comply with the provisions of Rule 18(6)
regarding this agreement (the allegations contained
in paragraphs 4.1
to 4.3);
14.2
the agreement, annexure “B1”, fails to stipulate when
payment was due and appears to provide for instalments;
14.3
the terms and conditions, annexure “B2”, contains
provisions regarding the repayment which appears to be
inconsistent
with the contents of annexure “B1” and the allegations in
the particulars of claim;
14.4
the terms of annexure “B1” and “B2” prevails
if there are any inconsistency between them and
annexures “B3”
and “B4”.
14.5
annexures “B1” and “B2” also appears to have
inconsistent terms regarding the repayment.
[15]
It should be patently obvious that this is not at all what the Rule
23(1) notice complains of, save for the reference to the
non-compliance with the provisions of Rule 18(6) regarding an
agreement which the plaintiff does not plead as such.
[16]
In my view there are apparent inconsistencies between the terms and
conditions contained in the documents appended to the particulars
of
claim and the plaintiff’s allegations in the particulars of
claim, but these were not brought to the plaintiff’s
attention
and that is not what the exception, on the basis that the particulars
of claim is vague and embarrassing, is based on.
[17]
The agreement which the plaintiff relies on has been pleaded by the
plaintiff. The plaintiff alleges when it was concluded
and who
represented the parties. The plaintiff specifically states, on its
version, when the payment was due and why it claims
the amount it
seeks to recover from the defendant. Whether it will be able to
prove its cause of action ultimately is irrelevant
at this stage of
the proceedings. The fact that the documents do not substantiate the
terms pleaded or are inconsistent was not
articulated in the Rule
23(1) notice.
[18]
The defendant did not complain of the fact that the plaintiff’s
cause of action is invalid. The defendant did not rely
on vagueness
caused by inconsistency between the allegations in the particulars
of claim and the annexures thereto. If anything,
the Rule 23(1)
notice failed to properly and adequately grasp with the true nature
and grounds of the complaint if the arguments
on behalf of the
defendant are considered. In fact, the arguments seemed to be more
likely a conclusion of the defendant’s
plea to the plaintiff’s
cause of action instead of an objection to the clarity and
particularity of the cause of action as
set out in the particulars of
claim.
[19]
In my view the defendant has failed to pass the threshold to satisfy
the first requirement regarding claim 1, namely that the
particulars
of claim is vague and embarrassing on the grounds relied on. In any
event and even if the particulars of claim was
vague and embarrassing
I am not persuaded that the grounds of exception were such that the
defendant would be seriously prejudiced
if the offending pleading
were allowed to stand.
[20]
The plaintiff claims to have entered into an agreement with the
defendant. It pleaded the terms of the agreement and the manner
in
which it alleges that the agreement has been breached. Nothing
prevents the excipient from pleading his version. He may deny
that
the parties had entered into the agreement as pleaded by the
plaintiff or plead that the acceptance of the pre-agreement statement
and quotation brought about a written agreement and the consequences
thereof. He may plead the inconsistencies that were argued
on his
behalf during the exception and deny that the amount is due and
payable or if he admits that agreements did come into existence
with
different terms, he is at liberty to plead his version of the terms.
In conclusion the defendant is at liberty and fully able
to plead to
the allegations contained in the particulars of claim without any
embarrassment or prejudice.
[21] I turn to consider
the complaints regarding claim 2.
[22]
Regarding the relevant parts of claim 2 the plaintiff alleges as
follows: (i) it gave a pre-agreement statement and quotation
for an
overdraft facility in the amount of R20 000.00, dated 1 October
2014 and in writing (appended to the particulars of
claim as annexure
“D1”), to the defendant; (ii) the terms and conditions
applicable to the overdraft facility appears
from annexure “D2”;
(iii) the aforesaid quotation was accepted in writing by the
defendant on 1 October 2014 as appears
from annexure “D2”;
(iv) pursuant to the acceptance of the quotation the plaintiff issued
a bank facility letter on
3 October 2014 whereof a copy is appended
to the particulars of claim as annexure “D3”; (v) the
terms and conditions
of the overdraft facility appears from the
annexure to the bank facility schedule attached to the particulars of
claim as annexure
“D4”; (vi) the defendant accepted the
terms and conditions of the overdraft facility in writing on 3
October 2014 and
this acceptance lead to the conclusion of an
agreement between the plaintiff and defendant at Heilbron whilst it
was represented
by A Snyman and the defendant acted in person. In
terms of the agreement an overdraft facility by means of a cheque
account was
approved and allocated to the defendant with a specific
account number; the facility would be a fixed term facility as
appears
from annexure “D3”. As for the default the
plaintiff alleges in paragraph 23.1 that the defendant failed to pay
the
amount due on demand. As to the amount owed the plaintiff alleges
that during the existence of the agreement between the parties
the
overdraft facility became overdrawn to the amount of R23 891.73.
[23]
Exactly the same considerations apply as did to the complaint to
claim 1 above. The plaintiff does not rely on separate
agreements but alleges that the agreement was only concluded when
annexures “D3” and “D4” were accepted
by the
defendant. The plaintiff alleges the payment was due on demand.
[24]
The defendant during argument again relied on the content of the
written agreements which are, on face value, inconsistent
with the
allegations in the particulars of claim. In particular it was argued
that the written annexures did not provide for a
specific payment
date or payment upon demand. That is firstly not the complaint as
articulated in the Rule 23(1) notice to cure
and secondly a matter
that can be pleaded and ventilated at trial.
[25]
In my view, on the same considerations as applicable to the complaint
to claim 1, the defendant has not satisfied the threshold
requirement
to establish that the particulars of claim is vague and
embarrassing on the grounds relied upon by the defendant.
[26]
There are apparent inconsistencies between the documents appended to
the particulars of claim and the plaintiff’s allegations
in the
particulars of claim, but that was not brought to the plaintiff’s
attention and that is not what the exception, on
the basis that the
particulars of claim is vague and embarrassing, is based on.
[27]
The agreement which the plaintiff relies on has been pleaded. The
plaintiff alleges when the agreement was concluded
and who
represented the parties. The plaintiff specifically states, on its
version, that payment was due on demand and why it claims
the amount
it seeks to recover from the defendant. The fact that the documents
do not substantiate the terms pleaded or are inconsistent
was not
articulated in the Rule 23(1) notice.
[28]
The defendant did not complain of the fact that the plaintiff’s
cause of action is invalid. The defendant did not rely
on vagueness
caused by inconsistency between the allegations in the particulars of
claim and the annexures thereto. If anything,
the Rule 23(1) notice
failed to properly and adequately grasp with the true nature and
grounds of the complaint if the arguments
on behalf of the defendant
are considered.
[29]
The court will not go beyond the cause of complaint articulated in
the notice to cure and exception as stated above. To do
so would mean
that the excipient is allowed to except on the basis that the
pleading is vague and embarrassing without affording
the other party
proper notice to remove the cause of complaint.
[30]
In any event and even if the defendant is correct with his complaint
that the pleading is vague and embarrassing as alleged,
I am not
persuaded that the grounds of exception that the particulars of claim
were vague and embarrassing were such that the defendant
would be
seriously prejudiced if the offending pleading were allowed to stand.
[31]
The plaintiff also in claim 2 alleges to have entered into an
agreement with the defendant. It pleaded the terms of the agreement
and the manner in which it alleges that the agreement has been
breached. Nothing prevents the excipient from pleading his version.
As with the first claim the defendant is at liberty to deny that the
parties had entered into the agreement as pleaded by the plaintiff
or
plead that the acceptance of the pre-agreement statement and
quotation brought about a written agreement and the consequences
thereof. He may plead the inconsistencies that were argued on his
behalf during the exception regarding the terms of repayment
and deny
that the amount is due and payable or if he admits that agreements
did come into existence with different terms, he is
at liberty to
plead his version of the terms. In conclusion the defendant is at
liberty and fully able to plead to the allegations
contained in the
particulars of claim without any embarrassment or prejudice.
[32]
I am compelled to remark on the manner in which the exception in this
matter has been drawn. The plaintiff did not take issue
and sought to
have the merits ventilated. The plaintiff is clearly frustrated by
the fact that the matter has been delayed. I touched
on the
requirements for an exception. In this matter the defendant refers to
the Rule 23(1) notice to cure and then states that
the defendant
“
hereby
notes an exception to the plaintiff’s particulars of claim as
set out in such notice
”
.
This does not comply with the provisions of Rule 18(4). The grounds
of the exception should, in addition to the allegation
that the
provisions of Rule 23(1) have been complied with and that the cause
of complaint(s) was not expunged, be pleaded properly
in the
exception. Obviously the defendant would not be allowed to supplement
or change the grounds, but that does not mean that
the defendant
should not draw a proper exception. The notice is just that, a notice
and not a pleading. In light of the fact that
the parties argued the
matter on the exception as filed and in absence of any prejudice I
will leave the matter there subject to
the court’s censure of
this manner of drawing exceptions.
[33] There are no reasons
why the costs should not follow the result.
Accordingly,
IT
IS ORDERED THAT
:
1.
The
exception is dismissed with costs.
____________________
N.
SNELLENBURG, AJ
APPEARANCES
:
On
behalf of the excipient/defendant: Adv
E.G. Lubbe
On
instructions of:
Mr A van Jaarsveld
Gouws & Vertue
Attorneys
Bloemfontein
On
behalf of the plaintiff:
Adv P.J. Heymans
On
instructions of:
Mr J.P. Otto
E G Cooper Majiedt Inc.
Bloemfontein
[1]
Trope v South African Reserve
Bank and Another and Two Other Cases
1992
(3) SA 208
(T) at 210G - 211E.
[2]
Koth Property Consultants
CC v Lepelle-Nkumpi Local Municipality Ltd
2006
(2) SA 25
(T) para 18.
[3]
Trope v South African Reserve
Bank
[1993] ZASCA 54
;
1993 (3) SA
264
(A) at 268F;
Lockhat
and Others v Minister of the Interior
1960
(3) SA 765
(D) at 777E;
[4]
Jowell v Bramwell-Jones and
Others
1998 (1)
SA 836
(W) at 899G.
[5]
General Commercial and
Industrial Finance Corporation Ltd v Pretoria Portland Cement Co Ltd
1944 AD at 454;
Wilson v
South African Railways and Harbours
1981
(3) SA 1016
(C) at 1019C.
[6]
Francis v Sharp and Others
2004 (3) SA 230 (C).
[7]
Trope v South African Reserve
Bank
[1993] ZASCA 54
;
1993 (3) SA
264
(A) at 268F;
Quinlan
v F McGregor
1960
(4) SA 383
(D) at 393E – H.
[8]
Sasol Industries (Pty) Ltd t/a
Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a L H
Marthinusen
1992 (4)
SA 466
(W).