Badenhorst v Maluti-A- Phofung Municipality (3484/2003) [2004] ZAFSHC 124 (20 August 2004)

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[2004] ZAFSHC 124
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Badenhorst v Maluti-A- Phofung Municipality (3484/2003) [2004] ZAFSHC 124 (20 August 2004)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
Nr.: 3484/2003
In
the matter between:
ALBERTUS
JOHANNES BADENHORST
Plaintiff
And
MALUTI-A-PHOFUNG
MUNICIPALITY
Defendant
JUDGMENT:
EBRAHIM
J
HEARD ON:
20
AUGUST 2004
DELIVERED ON:
9
SEPTEMBER 2004
[1] This is an exception
taken by the defendant to the plaintiff’s particulars of claim on
the grounds that same are vague and embarrassing.
[2] The Notice of
Exception was preceded by a notice to remove the cause of complaint
delivered in terms of the provisions of rule
23(1) of the Uniform
Rules of this Court. Subsequent to the delivery of such notice the
plaintiff amended its particulars of claim
which amendment in some
measure addressed the complaints in the Notice referred to. It is to
the amended summons that the exception
is now taken.
[3] The summons brings
two claims. The first is brought in respect of remuneration,
telephone allowances and medical and pension
contributions pursuant
to an oral agreement concluded in October 2001. The second claim is
in respect of a further agreement concluded
in December 2001
modifying the earlier agreement in terms of which the defendant was
to reimburse the plaintiff for any shortfall
between expenditure
incurred by the plaintiff in defendant’s farming activities and the
proceeds thereof.
[4] The Notice of
Exception is confined to three grounds less extensive than the
original notice to remove cause of complaint. The
first ground was
abandoned by the defendant in argument and nothing further need to be
said in this regard. It remains therefore
for me to consider the
remaining two grounds in the Notice of Exception dated 3 March 2004
and whether or not on such grounds the
particulars of claim are vague
and embarrassing.
[5] Before dealing with
the grounds of exception it is necessary to summarise the applicable
principles. These are listed in
Erasmus,
Superior
Court Practice
at B1 154 to B1 154A:
“
(a) In
each case the court is obliged first of all to consider whether the
pleading does lack particularity to an extent amounting
to vagueness.
Where a statement is vague it is either meaningless or capable of
more than one meaning.
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 complained of.
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 form to which he or she objects. A point may 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.
The ultimate test as to whether or
not the exception should be upheld is whether the excipient is
prejudiced.
The onus is on the excipient to show
both vagueness amounting to embarrassment and embarrassment
amounting to prejudice.
The excipient must make out his or
her case for embarrassment by reference to the pleadings alone.”
To this must be added:
(g) “An
exception must relate to the whole of the cause of action or claim
and not to a particular paragraph in the cause of action.”
JOWELL v BRAMWELL
JONES & OTHERS
1998 (1) SA 836
W:
(h) “An exception must state in
clear and concise terms the particulars upon which the exception is
based. It is not sufficient
merely to state that the particulars of
claim are vague and embarrassing.”
See
SYDNEY
CLOW & CO LTD v MUNNIK AND ANOTHER
1965 (1) SA 626
A and
BOTHMA
v LAUBSCHER
1973 (3) SA 590
O.
(i) “The excipient is bound to the
grounds of exception set out in the notice of exception and is not
permitted at the hearing to
rely on different grounds or raise a
different exception.”
See:
INKIN
v BOREHOLE DRILLERS
1949 (2) SA 366
A
[6] The two remaining
grounds are directed at the plaintiff’s second claim. The first
ground is that the oral agreement referred
to by the plaintiff in the
second claim is pleaded as a further agreement amending the agreement
referred to in the first claim.
This ground of exception seeks to
draw the conclusion that effectively the obligation forming the basis
of claim one lapsed in so
far as the agreement pleaded in the first
claim according to pleadings was replaced by the agreement pleaded in
the second claim.
[7] In amplification of
this ground Mr Zietsman for the excipient made the submission that
the agreement pleaded and upon which the
second claim was brought was
applicable in time and period with the agreement pleaded in claim
one. This apparently gives rise to
a difficulty on the part of the
defendant as to how to interpret the pleading and in particular
whether or not the second agreement
was an amendment to the first
agreement or a separate agreement in its own right. Assuming this
amounts to vagueness as the submission
seems to imply I am not
satisfied that there is vagueness amounting to embarrassment and
prejudice. Whether or not the second agreement
is characterized as
an amendment of the first or collateral to the first is a matter of
semantics as the terms of the second agreement,
as pleaded, are
pleaded sufficiently clearly to disclosed to the defendant the
obligations alleged to be owed to the plaintiff.
The particularity
is sufficient for the defendant to plead issuably thereto. The
second agreement clearly discloses additional obligations
of the
first over and above those disclosed in the first agreement.
Finally, this submission overlooks the ground of exception
disclosed
in paragraph 2 of the exception, namely, that the second agreement
amounted to a novation of the first agreement extinguishing
and
replacing the first agreement. On neither of the possible
interpretations put forward by Mr Zietsman in argument is it
suggested
that the second ground amounts to a novation of the first
agreement.
[8] The second remaining
ground of exception was that the annexure to the plaintiff’s
particulars of claim disclosing the proceeds
and expenditure of the
farming operations is vague and embarrassing. Mr Zietsman submitted
that the possibility existed that part
of the expenditure or
disbursements alleged in the annexure (Annexure “A”) may be a
duplication of the amount claimed by the
plaintiff in claim one.
Even if this was so, the amount claimed in the second claim would be
an over claim and does not strike at
the root of the claim as a
whole.
[9] Accordingly, in my
view, the two remaining grounds of exception do not disclose
vagueness amounting to embarrassment nor embarrassment
amounting to
prejudice. The particulars of claim disclose an action with
sufficient clarity to enable the defendant to plead thereto.
[10] In passing it is to
be noted that the plaintiff levelled certain criticisms at the notice
of exception. The first criticism
was that the notice of exception
did not accord with the notice to remove cause of complaint. While
an excipient is perfectly at
liberty to confine his/her exception to
grounds narrower than those set out in the notice to remove cause of
complainant, an excipient
is not permitted to introduce further
grounds of vagueness and embarrassment in respect of which the other
party has not been given
an opportunity to remove the additional
cause of complaints, as such would not comply with the provisions of
rule 23(1). The second
criticism is that the exception did not
contain a prayer for relief. An exception which lacks a prayer is
bad in law but the Court
has the power to order an amendment to make
good the defect provided no prejudice or injustice is caused to the
respondent. See
MARAIS
v STEYN EN ‘n ANDER
1975 (3) SA 479
T at 483 A where it was held that the absence of a
prayer in an exception was “die toppunt van die slordigheid wat die
eiser se
pleitstukke kenmerk”.
[11] The defendant filed
a notice of intention to amend its exception by the introduction of a
prayer. This notice was not objected
to by the plaintiff. The
defendant nevertheless failed to deliver amended pages in this
regard. Accordingly no amendment was effected.
See
VAN
HEERDEN v VAN HEERDEN
1977 (3) SA 455
W and
FIAT
SA (PTY) LTD v BILL TROSKIE MOTORS
1985 (1) SA 355
O.
At the hearing Mr
Zietsman tendered a draft order in terms different from the prayer
proposed in the notice of amendment which attracted
criticism from
the plaintiff’s counsel, Mr van Rooyen. In view of the order I
propose to make it not necessary to deal with this
apparent defect in
the exception.
[12] Finally I note that
the notice of exception was not signed by counsel or by an attorney
purporting to act in terms of section
4 sub-section (2) of The Right
of Appearance in Courts Act, 1995 which is required of the party not
suing or defending personally.
Rule 18(1) of the Uniform Rules of
Court provides as follows:
“
A
combined summons and every other pleading except a summons shall be
signed by both an advocate and an attorney or, in the case of
an
attorney who, under section 4(2) of The Right of Appearance in Courts
Act 1995 (Act nr: 62 of 1995) has the right of appearance
in the
Supreme Court, only by
such
attorney
or, if a party sues or defends personally, by that party.”
An exception is such a
pleading. See
HAARHOFF
v WAKEFIELD
1955 (2) SA 425
E.
[13] In
the result I make the following order:
The exception is
dismissed.
The defendant is ordered
to pay the plaintiff’s costs.
_____________
S.
EBRAHIM, J
On behalf of
Plaintiff:
Advocate P.C.F. van Rooyen
Instructed
by
Naudes
BLOEMFONTEIN
On behalf of
Defendant:
Advocate
P Zietsman
Instructed by
Hill,
McHardy & Herbst
BLOEMFONTEIN
/ec