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[2016] ZAGPPHC 167
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Sekhukhune Development Agency v Vermeulen and Others (42279/15) [2016] ZAGPPHC 167 (1 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
N0:42279/15
DATE:
01 APRIL 2016
In
the matter between:
SEKHUKHUNE
DEVELOPMENT
AGENCY
Applicant
And
JAN
VERMEULEN
1
st
Respondent
PASEKA
BUSINESS
ENTERPRISES
2
nd
Respondent
NATIONAL
TREASURY
3
rd
Respondent
JUDGMENT
NKOSI
AJ:
1.
In this matter the Plaintiff claims an amount of R351 020.00
alternatively payment of the amount of R209 020.00 from the
Defendants
as it is made out in the summons and particulars of claim
and interest on the aforesaid amount at the prescribed rate from 12
May
2014.
2.
The 1st to 3rd Defendants filed their Notice of Intention to Defend
and subsequent to that a special plea was served and filed
accordingly:
a)
The special plea raised in terms of Rule 23(2) of the Uniform Rules
raised an issue of non-joinder
of parties registered as members of
the 1st Defendant.
b)
The Respondent's response to this was that the 1st Defendant is a
persona on its own to sue or
be sued separately from its members. The
issue of a special plea was misplaced in this motion.
c)
An exception in terms of the same Rule 23(2) calling for the
Plaintiff to remove certain
causes of complaints rendering the
Plaintiff's particulars of claim scandalous, vexations, defamatory
and irrelevant to the relief
sought.
i.
That the 2nd and 3rd Defendant recklessly abused the separate legal
personality of
the 1st Defendant to their own benefit;
ii.
That they appointed "appointed family members in positions there
were not trained
and equiped to fullfil";
iii.
That they "paid bribes to members of the National Treasury,
namely Cathy Shilubane
and the Chief Executive of the 5th Defendant,
namely Sephaka Motswane;"
iv.
Thatthey conducted the business of the 1st Defendant recklessly
alternatively fraudulently
as contemplated by Section 64 of the Class
Corporation Act 69 of 1984
The
Defendants sought these complaints to be removed.
3.
The application for the exception (and/or special plea) was opposed
by the Plaintiff:
a)
It was submitted, on behalf of the Plaintiff, that, having dealt with
the non-joinder on paragraph
2(a) supra, the rest of the complaints
will be cured by leading evidence on trial. These could not be dealt
with or adjudicated
on the basis of pleadings, specifically that it
is a trite principle pertaining to exceptions, that the correctness
of the alleged
facts in the pleadings under consideration must be
accepted as correct.
b)
In the old case of
Mckenzie
v
Farmers
co-operation
Meat Industries Ltd
1922
AD
16
it was accepted by the Appelate
Division that "every fact which it would be necessary for the
Plaintiff to prove, if traversed,
in order to support his right to
the judgement of the court and it does not comprise every piece of
evidence which is necessary
to prove each fact, but every fact which
is necessary to prove each fact, but every fact which is necessary to
be proved."
It was further illustrated that a court must have
regards to the material facts and due regard to be paid to the
distinction between
the facta probanda and facta probantia as made
clear by Ackerman J
in
Makgae
v
Sentra Boer
(Kooperasie) Bpk 1981 (4) 244
TPD
c)
It was further submitted that certain causes of complaint render the
Plaintiff's particulars
of claim "scandalous, vexations,
defamatory and irrelevant to the relief sought" and futher that
2nd and 3rd Defendants
"recklessly abused legal personality of
the 1st Defendant for their own personal benefit." These were
refuted by submitting
that it all goes to the root of the cause of
action based on sections 64-65 of the Close Corporation Act, 1984
which provide for
the order of personal liability where a close
corporation has been found to have been conducted recklessly or
fraudulently. Such
allegations were necessary facta probanda to
sustain such a cause of action.
d)
So goes the complaints of nepotism evidence will have to be led to
prove its cause of action and
the allegations could not be viewed in
isolation but to form part of the context.
4.
Prejudice
a)
The court is quite vigilant and observant that the exception will not
be allowed unless the excipient will
be seriously prejudiced if the
offending allegations are not expunged. This is a view which the
court have to consider all or both
parties submissions carefully and
taking into consideration whether this is a damages claim or a liquid
claim. Further that the
court will have to objectively consider
whether the particulars of claim as they stand in this case will
render the Defendant incapable
to plead on the claim without
concentrating on other intrinsical complaints which are important as
well but cannot sidetrack the
main focus of the action. The excipient
could not show as to how embarrasment will feature in this regard.
b)
This view was expressed in
Trope
v
SA
Reserve
Bank
1992
(3)
SA
2
08
TPD
of
209
"that if the pleadings lack sufficient
clarity to enable the Defendant to determine those facts and hence
the case he has to
meet, the pleadings are vague and embarrasing"
by McCreath J. This is applicable to cases of this nature where the
claim is
a liquid or liquidated amount or easily ascertainable which
the Defendant can plead to it.
c)
I am of the view that the relief sought is not confusing to deprive
the Defendant from pleading to it on trial
and from the submissions
taken in totality there is no likelihood of a prejudice in this
regard. I am, as a result of the above,
of the view that the
excipients have failed to fullfil the onus resting upon them, and the
exception can therefore not stand.
5.
Consequently upon the above the court orders as follows:
a)
The exception is dismissed with costs.
Signed
and dated on this 1
st
April 2016.
_______________________________________
V.R.S.N
NKOSI
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA GAUTENG
DIVISION,PRETORIA