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[2014] ZAGPPHC 143
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Mokone v Investec Bank Limited (41469/2012) [2014] ZAGPPHC 143 (26 March 2014)
IN THE NORTH
GAUTENG HIGH COURT, PRETORIA
(REPUBLIC OF
SOUTH AFRICA)
CASE
NUMBER: 41469/2012
DATE:
26 MARCH 2014
In the matter
between:
SIMON NKUBA
MOKONE PLAINTIFF/APPLICANT
And
INVESTEC BANK
LIMITED DEFENDANT/RESPONDENT
JUDGEMENT
TLHAPI
[1] For convenience
the parties shall be referred to as plaintiff and the defendant.
In an action
instituted by the defendant under case number 16838/2012 the
plaintiff filed an exception to the defendant’s
particulars of
claim, which resulted in the defendant unconditionally withdrawing
its action against the plaintiff and tendering
the costs of such
withdrawal. In this action the plaintiff sued for damages suffered as
a result of such action instituted by the
defendant, where he
alleged that the action was brought for intentional and malicious.
For reasons given below I shall only deal
with the exception raised
in respect defendant’s response to paragraph 3 of the
particulars of claim.
[2] Plaintiff’s
exception reads as follows:
“ 1.
1.1 Plaintiff’s
description in the present claim bears similar description in the
defendant’s description of him in
its erstwhile claim under
case no.
16838/20124...
1.2 Defendant admits
having instituted the erstwhile case against the plaintiff under case
no. 16838/12;
1.3 However, in
light of the aforesaid admission and in contradiction thereof,
defendant pleads that it has no knowledge of the
allegation in
relation to the plaintiff’s description and accordingly denies
them and puts them to the proof thereof;
1.4 This denial does
not disclose a defence to the plaintiff’s claim in that it is
incompetent in law and under the circumstance;
2.
2.1 Defendant has
admitted all of the essential elements of plaintiff’s
allegation in relation to the delict committed by
the former in
paragraph 3 of the particulars of claim.
2.2 These admissions
coupled with the necessary implications flowing therefrom do not
disclose a defence to the plaintiff’s
claim.
2.3 The defendant’s
concomitant denial of the cause of action in paragraph 4 of the plea
fails to disclose a defence to the
plaintiff’s claim as they
constitute negative pregnant in one of more of all of the following
considerations viz:-
It is open to
interpretation that the defendant
2.3.1 denies
instituting the erstwhile case against the plaintiff;
2.3.2 admits
instituting the erstwhile case against the plaintiff but denies animo
iniuriandi on its part;
2.3.3 denies the
grounds alleged by the plaintiff which inform the foundation of animo
iniuriandi.
2.4 Consequently the
plea does not disclose a defence because defendant:-
2.4.1 has already
admitted institution of the erstwhile case without qualification;
2.4.2 in its
unspecified denials in paragraph 4 of its plea does not discount or
negative the legal effects of its admissions of
plaintiff’s
allegation and legal conclusions flowing from paragraph 3 of the
particulars of claim.
2.5 The defendant’s
allegation of the marriage between the enormity of the claim amount
and the abuse of process has neither
legal basis nor foundation in
fact and ultimately lacks particularity to disclose any defence to
plaintiff’sclaim”
The plaintiff prayed
for the setting aside of the defendant’s plea, granting leave
to the defendant to amend its plea and
costs of the exception.
[3] The defendant
pleaded as follows:
“PARAGRAPH 3
3.1 The defendant
instituted action against the plaintiff under cased number:
16838/2012
3.2 The plaintiff
noted an exception to the defendant’s particulars of claim
whereafter the defendant withdrew the action
and tendered the wasted
costs.
3.3 Save as for the
aforesaid, the defendant denies each and every allegation herein;
PARAGRAPH 4.1 TO 4.6
The defendant denies
each and every allegation herein as if specifically traversed
[4] It was submitted
in the Heads of Argument filed on behalf of the plaintiff that the
exceptions were brought in terms of Rules
18(5) and 22 (2) of the
Rules of Court.
During argument I
informed counsel that in my view the first exception taken was of no
consequence and did not prejudice the plaintiff
to such a degree that
the plea should be interfered with, and that they deal with the
second exception. Rule 22 (2) should be
read together with rule
Rule22 (3), the rules provide:
Rule 22 (2)
“ The
defendant shall in his plea either admit or deny or confess and avoid
all material facts alleged in the combined summons
or declaration or
state which of the said facts are not admitted and to what extent,
and shall clearly and concisely state all
material facts upon which
he relies”
Rule 22 (3)
“ Every
allegation of fact in the combined summons or declaration which is
not stated in the plea to be denied or admitted,
shall be deemed to
be admitted. If any explanation or qualification of any denial is
necessary, it shall be stated in the plea”
[5] The plaintiff
argued that the malicious nature was compounded by the fact that not
only did the defendant institute action against
the plaintiff but
also the cessionary both whom were represented by the same firm of
attorneys.
[6] It was submitted
for the defendant that while it was intended to argue the exception
under Rule 22, the argument for the plaintiff
was such that it
presented as one where the exception was based purely on grounds that
the defendant’s pleadings were vague
and embarrassing. The
applicable rule was that the exception raised was one in terms of
Rule 23 which dealt with vague and embarrassing
pleadings, and that
the plaintiff had failed to seek clarification of defendants
pleadings by way of notice allowing the defendant
to remove the cause
of complaint before taking the exception as was required by the said
rule. At this stage of the proceedings
and in addressing the
exception it is not appropriate to address issues whether plaintiff’s
action constitutes an abuse of
process.
Rule 23 (1)
“ Where any
pleading is vague and embarrassing or lacks averments which are
necessary to sustain a ..defence, the opposing
party may....deliver
an exception thereto.....Provided that where a party
intends to take an
exception that a pleading is vague and embarrassing he shall ...by
notice afford his opponent an opportunity
of removing the cause of
complaint....
[7] The main
submissions on behalf of the plaintiff appear under point 3 of the
Heads of Argument where counsel discusses ‘legal
principles in
regard to
exceptions’.
It was submitted at paragraph 3:
‘A pleading
lacks averments which are necessary to sustain a defence... if a
pleading does not justify the conclusions drawn
therein......thus an
exception founded upon the contention that a plea lacks averments
necessary to sustain a defence, is designed
to obtain a decision on a
point of law which will dispose of the case in whole or in part and
avoid the leading of unnecessary
evidence at the trial”
“an exception
founded upon the contention that a plea lacks averments necessary to
sustain a defence, is designed to obtain
a decision on a point of law
which will dispose of the case in whole or in part, and avoid the
leading of unnecessary evidence
[8] As I see it the
cause of complaint is not only levelled against the failure to make
averments necessary to sustain a defence,
it is the manner in which
the defendant couched its denial of the required animus iniuriandi
while in same vain admitting certain
elements of what was required to
be proved by the plaintiff.
The defendant has
admitted it instituted the action, that it withdrew the action after
plaintiff had successfully excepted to its
particulars of claim on
the grounds that it did not have locus standi. Another element which
the plaintiff has to prove in order
to be successful is that the case
was initiated for an improper purpose. In my view it is this latter
element at which the complaint
is levelled which was not
satisfactorily pleaded by the defendant.
[7] While a plethora
of cases were referred to in the heads of argument for the plaintiff,
addressing Rule 22, I am of the view
that there are grounds for an
exception however, I am inclined to agree with counsel for the
defendant that the real cause of
complaint was that the defendants
plea was vague and embarrassing. I arrive at this conclusion having
had regard to the submissions
for the plaintiff and according to
what was stated paragraph 5 above and the cases referred to therein.
In Erasmus’s
Superior Court Practice a commentary on Rule 22 at B1-148A the
following is stated:
“Shall be
deemed to be admitted ............where a plaintiff is embarrassed by
an apparent contradiction arising from the
absence of a precisely
targeted denial of a particular averment in the particulars of claim,
the plaintiff’s remedy lies
in a notice to the defendant to
cure a vague and embarrassing pleading in terms of rule 23(1)”
In this matter no
such notice was given. The requirement to give notice is obligatory.
I have not
considered the issue whether such notice can still be given since it
shall have been made out of time. There is however
nothing precluding
the plaintiff from seeking condonation.
[8] In the
circumstance the following order is given:
‘The exception
is dismissed with costs.
TLHAPI V.V
(JUDGE OF THE
HIGH COURT)
MATTER HEARD
ON : 26 MARCH 2014
JUDGMENT RESREVED
ON : 26 MARCH 2014
ATTORNEYS FOE THE
APPLICANT : MOKONE & MOKONE ATT
ATTORNEYS FOR THE
RESPONDENT : GILDENHUYS MALATJI INC