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[2014] ZAGPPHC 49
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Trustco Group Holdings and Others v Regent Life Assurance CO. Ltd and Others (60765/2012) [2014] ZAGPPHC 49 (7 February 2014)
IN THE NORTH
GAUTENG HIGH COURT OF PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NUMBER: 60765/2012
DATE:
7 FEBRUARY 2014
In the matter
between:
TRUSTCO GROUP
HOLDINGS
...........................................................
First
Plaintiff
TRUSTCO GROUP
INTERNATIONAL (PTY) LTD
........................
Second
Plaintiff
TRUSTCO MOBILE
(PTY)
LTD
...........................................................
Third
Plaintiff
And
REGENT LIFE
ASSURANCE CO. LTD
.............................................
First
Defendant
REGENT INSURANCE
COMPANY LTD
......................................
Second
Defendant
CLICKS GROUP
LIMITED
...............................................................
Third
Defendant
CLICKS MANAGEMENT
(PTY) LTD
.............................................
Fourth
Defendant
JUDGMENT
DE KLERK AJ
This is an exception
brought by the Defendants’ in terms of Rule 23 (1) of the
Uniform Rules of Court on the basis that the
Plaintiffs’
Particulars of Claim are vague and embarrassing and / or do not make
out a cause of action for the relief sought.
In response to the
Defendants’ Notice to Remove Cause of Complaint, the
Plaintiffs delivered a reply confirming that the
only documentation
contained in the bundle of confidential information, which do not
contain confidential information, are some
nine pages to wit 64, 65,
66, 91,94,99,100,101 and 102.
The response did not
satisfy the Defendants and they then served the said Notice in terms
of Rule 23 (1).
The Gist of the
Defendants’ complaint is that, in view of the wide variety of
documents included in the bundel and the wealth
of information
contained therein, the Defendants are unable to determine the nature
and extent of the confidential information.
Plaintiff’s
claim:
The Plaintiffs
(collectively referred to in the Particulars of Claim as “Trustco”)
have instituted a claim for an interdict
and an enquiry into damages
against the Defendants based on the Defendants’ alleged use of
confidential and proprietary information.
The Plaintiffs’
claim against the First and Second Defendants (collectively referred
to as Regent) is based on the alleged
breach of two confidentiality
agreements entered into between Regent and the Plaintiffs as well as
a claim of unlawful competition.
The Plaintiffs’
claim against the Third and Fourth Defendants (collectively referred
to as “clicks”) is based
on unlawful competition.
The Particulars of
Claim contain reference to a bundel of documents which the Plaintiffs
allege contain full details of the confidential
information.
Legal principles:
The principles laid
down in the rules and existing case law relating to exceptions are
trite.
Section 23 (1) of
the Uniform Rules of Court deals with exceptions and states that
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 deliver an
exception thereto.
Rule 18 of the
Uniform Rules of Court deals with rules relating to pleadings
generally. Rule 18 (4) requires that each pleading
in an action
shall contain a clear and concise statement of the material facts
upon which the pleader relies for his claim with
sufficient
particularity to enable the opposite party to reply thereto.
The material facts
whereon a plaintiff relies should be concisely stated in his
particulars of claim and these facts only, and no
other should be
pleaded.
The material facts
do not comprise every piece of evidence which is necessary to prove
each fact, but every fact which is necessary
to be proved. Facta
probantia has no place in pleadings.
A pleading should
not contain matters irrelevant to the claim.
Pleadings that are
“a rambling preview of the evidence proposed to be adduced at
the trial do not meet the requirements of
Rule 18 (4) and would be
excipiable as being vague and embarrassing. (Moaki vs. Reckott
1968
(3) SA 98
AD at 102 A-B).
The plaintiff is
certainly not entitled to plead a jumble of facts and force the
defendant to sort them judiciously and fit them
together in an
attempt to determine the real basis of the claim. (Roberts
Construction Ltd vs. Dominion Earthworks Ltd 1968 (3)
255 at 263).
The purpose of the
exception procedure is inter alia to remove the need for guesswork.
Particulars of Claim
should be so phrased that a defendant is able to reasonably
comprehend what case he is called upon to meet
and reasonably and
fairly able to plead thereto without embarrassment.
It may be possible
to plead to Particulars of Claim by simply denying the allegations
made, yet such a pleading would itself be
expiable as being vague and
embarrassing.
Same would defeat
the whole purpose of pleadings to wit to bring clearly to the notice
of the court and the parties to an action
the issues upon which
reliance is to be placed.
The more complex the
matter is, the greater would be the demand for conciseness, lucidity,
logic, clarity and precision.
An exception that a
pleading is vague or embarrassing will not be upheld unless the
excipient will be seriously prejudiced.
Application of
the legal principles to the facts of the case:
The gist of the
exception is that the Plaintiffs’ Particulars of Claim do not
identify the nature of the alleged confidential
information nor do
they refer to, or identify any document or portion thereof in the
bundle on which they rely as constituting
the confidential
information.
The interest which
the Plaintiffs sought to protect by entering into the two
confidentiality agreements with Regent, was that relating
to
confidential information. The Plaintiffs rely on the bundel as
constituting full details of the confidential information.
The confidential
information goes to the core of the cause of action.
It is a complex case
which makes the demand for conciseness, logic, lucidity, clarity and
precision greater.
In my view it is not
sufficient for the Plaintiffs to say that full details of the
confidential information are in the bundel.
The Plaintiffs
cannot expect of the Court and the Defendants to sift through some
hundred pages and fit them together to determine
what constitutes
confidential information. Certainly there should be no difficulty on
the part of the Plaintiffs to do so.
In my view the
Plaintiffs should specify the nature, extent and details of the
confidential information relied upon by them.
In my view the
Particulars of Claim are vague and embarrassing as it is not clear
what the confidential information is.
The embarrassment is
so serious as to cause prejudice to the Defendants if they are
compelled to plead to the pleading in the form
to which they have
objected.
Accordingly it is
ordered that:
1. The exception is
upheld;
2. The Plaintiffs
are afforded a period of 14 days from the date of this order, to
amend their particulars of claim, failing which
the Defendants may
approach the Court for an order that the Plaintiffs’ action be
dismissed with costs;
3. The costs of this
exception to be paid by the Plaintiffs including the costs of two
councils including senior council.
Signed at on this
day of 2014.
Judge De Klerk AJ
The Honourable
Judge of the High Court Of Pretoria