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[2014] ZAGPPHC 63
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Trustco Group Holdings and Others v Regent Life Assurance Co. Ltd and Others (60765/2012) [2014] ZAGPPHC 63 (7 February 2014)
IN
THE NORTH GAUTENG HIGH COURT OF PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 60765/2012
DATE:
7/2/2014
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
[1] 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.
[2] 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.
[3]
The response did not satisfy the Defendants and they then served the
said Notice in terms of Rule 23 (1).
[4]
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:
[5]
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.
[6]
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.
[7]
The Plaintiffs’ claim against the Third and Fourth Defendants
(collectively referred to as “clicks”) is based
on
unlawful competition.
[8]
The Particulars of Claim contain reference to a bundel of documents
which the Plaintiffs allege contain full details of the
confidential
information.
Legal
principles:
[9]
The principles laid down in the rules and existing case law relating
to exceptions are trite.
[10]
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.
[11]
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.
[12]
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.
[13]
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.
[14]
A pleading should not contain matters irrelevant to the claim.
[15]
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
).
[16]
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
).
[17]
The purpose of the exception procedure is
inter
alia
to remove the need for guesswork.
[18]
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.
[19]
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.
[20]
The more complex the matter is, the greater would be the demand for
conciseness, lucidity, logic, clarity and precision.
[21]
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:
[23]
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.
[24]
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.
[25]
The confidential information goes to the core of the cause of action.
[26]
It is a complex case which makes the demand for conciseness, logic,
lucidity, clarity and precision greater.
[27]
In my view it is not sufficient for the Plaintiffs to say that full
details of the confidential information are in the bundel.
[28]
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.
[29]
In my view the Plaintiffs should specify the nature, extent and
details of the confidential information relied upon by them.
[30]
In my view the Particulars of Claim are vague and embarrassing as it
is not clear what the confidential information is.
[31]
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