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[2014] ZAFSHC 90
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Du Plessis v Stander (570/2014) [2014] ZAFSHC 90 (3 July 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 570/2014
In
the matter between:
ARNOLD
DU PLESSIS
….........................................................................................................
Plaintiff
and
HENDRIK
JOHANNES STANDER
….................................................................................
Defendant
JUDGMENT
BY:
MBHELE, AJ
HEARD
ON:
13 JUNE 2014
DELIVERED
ON:
03 July 2014
[1]
The defendant has filed an exception to the plaintiff’s
particulars of claim on the basis that they are vague and
embarrassing.
[2]
The plaintiff’s cause of action is based on defamation, it
being alleged:
“
On
several occasions during or about the period 2010 to 2011 (the
plaintiff is not aware of the exact dates and is therefore unable
to
be more specific) and in Bloemfontein, Free State Province, defendant
stated to and/or within earshot of various people,
inter
alia
Sandra Venter and/or MAM Smith of
and concerning plaintiff that:
·
While his wife was still alive, he had an
extra marital affair with Felicity De Freitas.
·
The plaintiff for the first time during the
second half of February 2011 became aware that the defendant has made
the aforementioned
statement.”
[3]
Before dealing with the grounds for exception it is necessary to
summarise applicable principles as laid out in Erasmus, Superior
Court Practice at B1-154 to B1-154A.
[4]
An exception that a pleading is vague and embarrassing will not be
allowed unless the excipient will be seriously prejudiced
if the
offending allegations will not be expunged.
(a)
In each case an
ad
hoc
ruling must be made as to whether
the embarrassment is so serious as to cause prejudice to the
excipient if he or she is compelled
to plead to the pleading in
the terms to which he or she objects, A point was be of
the utmost importance in
one case, and the omission thereof may give
rise to vagueness and embarrassment, but the same point may in
another case be
only a minor detail.
(b)
If there is vagueness in this sense the
court is then obliged to undertake a quantitative analysis of such
embarrassment as the
excipient can show is caused to him or her by
the vagueness thereof.
(c)
The ultimate test as to whether or not the
exception should be upheld, is whether the excipient is prejudiced.
(d)
The onus is on the excipient to show both
vagueness amounting to embarrassment and embarrassment amounting to
prejudice.
[5]
The defendant based his exception on the following grounds:
That it cannot be
determined from the particulars of claim:
(i)
On which specific date the defamatory
statement was made;
(ii)
On which specific occasion the defamatory
statement was made;
(iii)
Where in Bloemfontein the defamatory
statement was made.
That
it cannot be determined from the particulars of claim whether the
plaintiff was informed of the defamatory statement by the
two persons
stated in paragraph 3 of the particulars of claim or other persons.
[6]
High Court Rule 18(4) provides that every pleading shall contain a
clear and concise statement of the material facts upon which
the
pleader relies for his claim, defence or answer to any pleading, as
the case may be, with sufficient particularity to enable
the opposite
party to reply thereto.
[7]
The defendant’s counsel referred to the matter of
Atlantis
Corporate Travel (Pty) Ltd v Marc Scharli
2012/9344 South Gauteng High Court. I must hasten to say that
it is important to make a distinction between the aforementioned
case
and the matter before me. In
Atlantis
Corporate Travel (Pty) Ltd v Marc Scharli
supra
the
defamatory statements were alleged to have been made to entities and
not to natural persons.
[8]
The plaintiff in his particulars of claim states that the alleged
defamatory statements were made in Bloemfontein during or
about the
period 2010 to 2011, within earshot of various people
inter
alia
Sandra Venter and/or MAM Smith.
[9]
The alleged defamatory statement was alleged to have been made in the
presence of two natural persons. The plaintiff has
qualified
the omission of the exact dates on the particulars of claim.
[10]
In
Lockhat and Others v Minister of
Interior
1960 (3) SA 765
(N) at
page 777 the court said:
“
As
long as the declaration reasonably states the nature, extent, and
grounds of the cause of action, the court will not as a rule,
strike
out paragraphs as vague and embarrassing.”
A
pleading may be vague if it is either meaningless or capable of one
meaning, or if it lacks the particularity and clarity necessary
to
inform the other party of the case to be answered.
[11]
I am not of the view that the particulars of claim are so wanting in
clarity and particularity that the defendant should have
difficulty
pleading thereto. I am satisfied that the assailed paragraphs
of the particulars of claim are not of such a nature
that the
excipient would be prejudiced if they are allowed to stand. I am also
of the view that the Plaintiff has set out material
facts on which he
will rely with sufficient clarity and particularity so as to enable
the Defendant to plead thereto.
[12]
The particulars of claim as they stand do not prevent the defendant
from putting his version. Defendant may deny defamation.
The
detail relating to exact dates, place and persons who informed
Plaintiff about the alleged defamatory statements, in my view,
do not
form part of the
facta probanda
,
they are matters of evidence
.
The
oral evidence at the trial will be able to clarify the dispute. In
the result I am of the view that exception cannot
be upheld.
[13]
I therefore make the following order:
Exception
is dismissed with costs.
_______________
N.M. MBHELE, AJ
On behalf of the
plaintiff: Adv D. de Kock
Instructed
by:
Botha
& De Jager Inc
BLOEMFONTEIN
On behalf of the
defendant: Adv W. A. van Aswegen
Instructed
by:
McIntyre
& Van der Post
BLOEMFONTEIN