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[2012] ZAFSHC 232
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Kramer Weihmann and Joubert Inc v South African Commercial Catering and Allied Workers Union (SACCAWU) (3818/2011) [2012] ZAFSHC 232 (13 December 2012)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Application No: 3818/2011
In
the application between:-
KRAMER WEIHMANN &
JOUBERT INC
........................................
Plaintiff
and
SOUTH AFRICAN
COMERCIAL CATERING AND
ALLIED WORKERS
UNION
........................................................
Defendant
_________________________________________________________
JUDGMENT BY:
THAMAGE, AJ
_________________________________________________________
HEARD ON:
7
DECEMBER 2012
_________________________________________________________
DELIVERED ON:
13 DECEMBER 2012
_________________________________________________________
[1] This is an exception
raised by the defendant on the basis that plaintiff’s
declaration is vague and embarrassing.
[2] Except for opposing
the exception, plaintiff raised point in
limine
on the basis
that the matter is not properly before the court since there is a
non-compliance with the rules of this court, and
that there has been
no application for condonation neither did the parties agree on
indulgence. In essence, the delivery of an
exception is out of time.
[3] Summons against
defendant were served upon the defendant on 7 October 2012, defendant
duly entered appearance to defend. Plaintiff
filed its declaration on
the 24 April 2012, defendant failed to plead hence notice of bar was
delivered on 25 May 2012. On the
1
st
June 2012 defendant
filed a notice to remove cause of its complaint in terms of rule 23,
the plaintiff proceeded with application
for default judgment which
application was opposed successfully on the 16 August 2012. On the 31
August 2012, plaintiff served
defendant with notice of bar and
subsequently on the 5 September 2012, the present application for
exception was filed.
[4] Rule 23(1) reads as
follows:
“
Where
any pleadings 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, within a period allowed for filing any subsequent
pleading, deliver an exception thereto and may
set it down for
hearing in terms of paragraph (f) of subrule 5 of rule 6: Provided
that where a party intends to take an exception
that a pleading is
vague and embarrassing he shall within the period allowed as
aforesaid by notice afford his opponent an opportunity
of removing
the cause of complaint within 15 days: Provided further that the
party excepting shall within 10 days from the date
on which a reply
to such notice is received or from the date on which such reply is
due, deliver an exception.”
[5] I dismissed
plaintiff’s point
in limine
and reserved my reasons. I
thus now give reasons for my ruling. An exception in itself is a
pleading and is accordingly subject
to the rules governing pleadings
in general – see
BARCLAYS NATIONAL BANK LTD v THOMPSON
1989 (1) SA 547
(A) at 553. Defendant had issued and
delivered a notice in terms of rule 23(1) to the plaintiff. The
defendant should therefore
after the expiring date of 15 days,
delivered his exception.
[6] Since an exception is
a pleading, a notice of bar under Rule 26 is necessary before a
plaintiff can object to a late exception.
See
TYULU AND OTHERS
v SOUTHERN INSURANCE ASSOCIATION LTD
1974 (3) SA 726
(E). See
also
HARMS CIVIL PROCEDURE IN THE SUPREME COURT
, B23.5.
[7] Plaintiff did serve a
notice of bar although not barring the defendant to deliver his
exception but to deliver a plea on the
31 August 2012 and on the 5
September 2012 (3 days later) an exception was delivered. Even if the
notice of bar was for the defendant
to deliver an exception, still
the exception was delivered on time.
[8] In the premise, as I
have indicated earlier, the point
in limine
was dismissed.
[9] The cause of
complaint as per notice of exception is basically as follows:
That Plaintiff failed to
give the date or dates, failed to give place, names of the
representatives and/or officials of the defendant.
Further the nature
of representation alleged and when such representation of the
defendant was duly authorised.
Secondly, defendant’s
cause of complaint is that it is not clear as to whether the
allegation pertains to the conduct of the
defendant, that plaintiff
represented defendant on many actions applications and legal
proceedings without being specific and lastly
that mention was made
of the Magistrate Court, High Court, Labour Court and Supreme Court
without specifically mentioning the names
of the said courts.
[10] Mr Grobler argued
that the plaintiff’s declaration is not vague and embarrassing
and that defendant is in a position
to can plead to same. He further
submitted that further details of plaintiff’s claim are on
annexures 1 to 71 of the simple
summons as well as the declaration
that the plaintiff’s summons and documents should be read as a
whole. The plaintiff had
a general authority to provide legal
services to the defendant since the year 2000 hence the issue of the
nature of instructions
does not hold any merits, he further submitted
that it is irrelevant to point out the names of the court as
plaintiff instituted
proceedings based on taxed costs, taxed by the
Law Society. That defendant is able to plead by stating that they do
not have knowledge
of the averments and put the plaintiff to the
proof thereof.
[11] The onus is on the
excipient to show both vagueness amounting to embarrassment amounting
to prejudice. See
LOCKHAT AND OTHERS v MINISTER OF THE INTERIOR
1960 (3) SA 765
(D) at 777. The prejudice that would be suffered by
the defendant should be serious before the court could uphold the
exception.
See
LEVITAN v NEWHAVEN HOLIDAY ENTERPRISES CC
1991 (2) SA 297
(C) at 298A.
[12] The point raised by
the defendant that there are no particulars of individuals who
instructed the plaintiff is not of such
a nature that it would make
the defendant embarrassed to plead. Plaintiff on his declaration
stated that he got a general authority
from the defendant during
2000, hence the defendant is in a position to admit or deny that.
[13] The averment by the
defendant that it is not clear as to whether plaintiff’s action
is based on the conduct of the defendant
is also without merits.
Plaintiff on his summons clearly states that the cause of action is
for professional services rendered.
[14] Lack of
particularity as regards “many actions, applications and legal
proceedings,” according to my view, plaintiff
will not be
substantially prejudice by same. See
LOCKHAT v MINISTER OF THE
INTERIOR
supra
at page 777B, much goes the same with
the plaintiff’s lack of naming the courts as plaintiff is
proceeding on the fees assessed
by the Law Society, this averments
can only be relevant as to determine the scale used to arrived at a
particular amount. In the
premise, I am also of the view that the
cause of complainant cannot stand.
[15] Of concern is the
fact that there are no dates within which plaintiff rendered
professional services and the parties involved
in the litigation.
These two aspects are vital to enable the defendant to plead and lack
of same would amount to the defendant
substantial embarrassment and
serious prejudice. The names of the parties involved will put the
defendant in a position to can
identify the matters and thus also to
can plead thereof. It is correct that in some of annexures 1 –
71, the names of the
parties appear but in some not, only the case
number. Defendant will not be able to identify the matter by merely
looking at the
case number.
[16] In the circumstance,
I come to the conclusion that defendant requires for purposes of
pleading the names of the parties (litigants)
involved in all 71
matters, as well as dates upon which professional services were
rendered.
ORDER
[17] The following order
is thus made:
17.1 Exception is upheld;
17.2 Plaintiff is granted
leave to amend its declaration
17.3 Plaintiff to pay
costs.
_________________
S. J. THAMAGE, AJ
On behalf of plaintiff:
Adv. S. Grobler
Instructed by:
Kramer, Weihmann &
Joubert
BLOEMFONTEIN
On behalf of defendant:
Adv. N. Rali Ralikhuvhana
Instructed by:
Mabalane Seobe Inc.
BLOEMFONTEIN
/eb