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[2016] ZAGPPHC 738
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Sekhukhune Development Agency v Vermeulen and Others (42279/15) [2016] ZAGPPHC 738 (1 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
N0:452279/15
DATE:
01 APRIL 2016
Not
reportable
Not
of interest to other judges
Revised.
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. That they 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