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[2010] ZAFSHC 105
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Majatau v Mathibe and Another (2226/2009) [2010] ZAFSHC 105 (23 February 2010)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 2226/2009
In
the case between:
MIKE
MATHIBE
…
.................................................................
First
Excipient
GSL
CORRECTIONAL SERVICES (PTY) LTD
…................
Second
Excipient
and
JOHNSON
MAJATAU
…...........................................................
Respondent
JUDGEMENT:
MOOLLA,
AJ
HEARD
ON:
22
JANUARY 2010
DELIVERED
ON:
23
February 2010
[1]
The matter before me is an exception raised by the first and second
excipients to the particulars of claim dated the 7
th
of
May 2009 in which the respondent in this application, Johnson
Majatau, is the plaintiff. Mr. La Grange appears for excipient.
On
the day there was no appearance for the respondent, his name having
been called out three times both at the public entrance
of this court
as well as the main entrance of the court building.
[2]
The Notice of Exception records 4 items of exception; the first
relates to the issue of jurisdiction and the remaining three
(3) to
the averments that the particulars of the claim do not disclose a
cause of action. The said notice of exception was preceded
by a
Notice to Remove the Cause of the complaint dated the 28
th
of
September 2009. As the respondent/plaintiff is suing in person a copy
of the Notice of Exception was caused to be served by the
deputy
sheriff, Bloemfontein by personal service on the 7
th
of
October 2009.
[3]
As there was no response to the said Notice to Remove Cause of
Complaint, the excipients filed a Notice of Exception dated the
29
th
of
October 2009 which was served on Johnson Majatau on the 10
th
of
December 2009.
[4]
At the commencement of the hearing of the application the court
pointed out to counsel, Mr Le Grange, who appears on behalf
of the
excipients that the return of service appeared to be defective in
that it made reference to the service of the Notice of
Exception on
the excipients and the respondent. Counsel gave the court the
assurance based on instructions from his instructing
attorney that in
fact there had been proper service by the sheriff on the respondent;
further that the attorney had raised the
issue of the defective
return of service with the sheriff who undertook to remedy the
defective return; in the event he had failed
to do so.
[5]
At the commencement of the hearing the court raised two points,
in
limine
with
Mr Le Grange, namely:
1.
If the first exception which sought to oust the jurisdiction of the
court were to succeed all the other exceptions would fall
away;
2.
That exceptions number 3 and 4 seemed to have little merit and were
essentially part and parcel of the second exception.
At
that stage Mr Le Grange indicated to the court that the excipients
would not persist with exceptions number 1 as well numbers
3 and 4
and would only seek relief in respect
of
exception number 2.
[6]
Secondly the court requested Mr Le Grange to address it on the issue
of the Notice of Exception lacking a prayer. Counsel
himself alluded
to this shortcoming in the papers.
[7]
In view of the fact that the Constitution is underpinned with the
precepts of procedural fairness which runs throughout the
constitution like a golden thread, the court faced a conundrum
whether to order the excipients to amplify the Notice of Exception
with a prayer, (which was lacking) and cause service before the
matter could be heard once again on the amplified papers.
[8]
As there was no appearance for the respondent on the day the court
could have dealt with the application summarily having
regard to
counsel's submission that the respondent would be given 60 days
within which to cure any defect that may have been
found to exist.
The court accordingly felt that there was no prejudice to be
suffered by the respondent were it to deal with
matter summarily.
Even if the court ordered service of the amplified papers the matter
would once again come before the court
for adjudication on
essentially the same issues.
[9]
An exception which lacks a prayer in the Notice of Exception is
irregular and liable to be struck out; se e
KISTENSAMY
v BRAMDAW AND OTHERS
1962
(3) SA 797.
However the court has a power to order an amendment
to make good the defect provided that no prejudice or injustice is
caused
to the respondent.
[10]
Based on counsel's submission that the respondent would be given
sixty (60) days to amend his summons were the exception
to be upheld
t he court accordingly finds that no prejudice or injustice would be
suffered if it condoned the failure to incorporate
a prayer. The
court accordingly grants the amendment incorporating the prayer.
Legal
principles of application
[11]
In
BENSON
AND SIMPSON v ROBINSON
1917
WLD 126
the general principles of pleading were explained by
Wessels J -
"The
plaintiff must not set out the evidence upon which he relies, but he
must state clearly and concisely on what facts
he bases his claim
and he must do so with such exactness that the defendant will know
the nature of the facts which are to be
proved against him so that
he may adequately meet him in court and tender evidence to disprove
the plaintiff's allegations."
BECK'S:
THEORY AND PRINCIPLES OF PLEADING IN CIVIL ACTIONS
at
page 46 sets the position as follows:-
"Although
pleadings must be carefully drawn and be well turned out, the court
ought not to read them pedantically. The rules
do not require that
pleadings be drawn up in perfect language, but that the allegations
of the parties should be clearly cognisable.
Thus the court will not
hold that a pleading is bad in law provided that such pleading shows
the other party what the claim or
defence, as the case may be, is,
with reasonable clarity even though there may be allegations in such
pleading which are unnecessary
(though not prejudicial to the
opposite party) and even though such pleading may not be elegant."
At
page 47:
'The
fundamental principles which govern all pleadings can be summarised
as follows:
(a)
Pleadings must be brief and concise and couched in summary form.
They...
(b)
Pleadings should state facts and facts only, that is to say they
should not contain statements of either law or the evidence
required
to establish the facts. The inclusion of any other facts is
irrelevant and irrelevant facts are liable to be deleted
from a
pleading if embarrassing to the opposite party. ...
On
the other hand an exception to a pleading is not justified merely
because it contains some unnecessary words if those words
do not
embarrass the opposite party, and where unnecessary matter is
pleaded in a declaration the defendant is entitled to answer
it in
his plea."
APPLICATION
OF THE AFORESAID LEGAL PRINCIPLES
[12]
In essence the averments set out at paragraphs 4, 5, 6 and 7 as well
as the prayer to the particulars of claim viewed either
individually
or as a whole consist of a mixture of allegations, submissions,
statements of law, evidence etc. Even if the court
were to allow the
respondent a wide berth in his pleadings as an unrepresented
litigant, the pleadings presently amount to a
near abomination which
would make it almost impossible if not wholly impossible for any
opposing litigant to discern the nature
of the cognizable action and
the facts which are to be proved so that they can be adequately met
in court and evidence tendered
to disprove them.
In
the introduction to the prayer the respondent pleads as follows:-
"Wherefore
the plaintiff prays for judgment from this Honourable Court in his
favour against the defendant(s) for damages
which is suffered
because of injury and damages equated to patrimonial loss of income
due to the unlawful termination of service
contract." (sic)
The
introductory portion of the prayer is indicative of a delictual
claim based on injury and a possible contractual claim based
on an
alleged loss of income
[13]
Prayer 1 (to the summons) reads as follows:
"And
order for the payment of the plaintiffs monthly salary from December
2008 with 15,5% calculated from December 2008 till
this matter is
brought to final (SIC) and R1,5 million equated to damages for
patrimonial loss for the next 20 years to come
due to unlawful
termination of the service contract."(sic)
An
analysis of the introduction to and of paragraph (1) of the prayer
is clearly indicative of two separate claims based ex
contractu
for
loss of income from the date of the determination of the issue and
R1, 5 million for damages for patrimonial loss in respect
of a
delictual claim.
Paragraph
1 of the actual prayer totally abandons the claim based on injuries
sustained but is predicated on a claim for past
loss of earnings and
patrimonial loss for future earnings arising from the alleged
unlawful of termination of the service contract.
Even
if the court were to find that there has been a proper separation of
claims based on contract and delict, there has been
a noticeable
failure to comply with the peremptory provisions relating to
pleadings in a case based on delict and contract. In
addition the
averments relating to bodily injuries are left hanging in the air
and are not carried over to the actual relief
sought.
[14]
In the case of delict it is essential to plead the following:-
1.
Wrongful act or omission;
2.
A duty of care;
3.
Omission;
4.
Negligence;
5.
Causation;
6.
Damages.
[15]
It is clear from the particulars of claim that the requirements for
the proper pleading of a delictual claim have not been
met.
In
the case of contract it is necessary to state in the pleadings
whether the contract relied upon is written or oral and to state
when, where and by whom such contract was concluded and breach
thereof e.t.c.
See:
VOSTER
v HERSELMAN
1982
4 SA 857(0)
Clearly
the respondent has been in breach of the requirements relating to
the pleadings based on contract also.
[16]
In the circumstances the court concludes that the excipients would
be significantly prejudiced, in the prosecution of their
defence if
the pleadings as presently constituted were allowed to stand.
[17]
Accordingly the court is inclined to uphold exception two (2), viz;
that the particulars of claim do not disclose a cause
of action.
[18]
In addressing the issue of costs, the court finds that the conduct
of the excepients' was not entirely satisfactory in a
material
respect. The excipients', having had the luxury of legal
representation were clearly remiss in coming to court with
defective
papers (lack of prayer), which could have been fatal to the
application had the court not condoned the defect. There
must of
necessity be an indication of the court's displeasure by an
appropriate order of costs... In the opinion of the court
it is just
that no order been made as to the costs of this application.
[19]
It is ordered as follows:
1.
The amendment is granted incorporating the following prayer in the
notice of exception:
1.1.
The second exception raised in the Notice of Exception to the effect
that no cause of action is disclosed in the particulars
of claim is
upheld.
1.2.
The respondent/plaintiff is granted leave to amend his particulars
of claim dated 7 May 2009 within two months of the date
of service
of this order on the respondent/plaintiff, falling which the claim
is dismissed with costs.
1.2.1.
The second exception raised in the Notice of Exception to the effect
that no cause of action is disclosed in the particulars
of claim is
upheld.
1.2.2.
The respondent/plaintiff is granted leave to amend his particulars
of claim dated 7 May 2009 within two months of the date
of service
of this order on the respondent/plaintiff, falling which the claim
is dismissed with costs.
E. A. MOOLLA, AJ
On
behalf of the applicant: Sues in person
(No
appearance on the day)
On
behalf of the excipients: Adv. W. G. La Grange Instructed by:
Webbers
BLOEMFONTEIN