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[2024] ZAFSHC 166
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Firmpulse Trading CC and Another v Kleynhans and Another (5115/2023) [2024] ZAFSHC 166 (27 May 2024)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case no.: 5115/2023
Reportable:
NO/YES
In
the matter between:
FIRMPULSE
TRADING
CC
First
Excipient
(Registration
number: 2004[…])
MICHAEL
ROBERT LUNDERSTEDT
Second
Excipient
And
HERMANUS
LUKAS KLEYNHANS
First
Respondent
MARTHA
CORNELIA
KLEYNHANS
Second
Respondent
In
re:
HERMANUS
LUKAS KLEYNHANS
First
Plaintiff
MARTHA
CORNELIA
KLEYNHANS
Second
Plaintiff
And
FIRMPULSE
TRADING
CC
First
Defendant
(Registration
number: 2004[…])
MICHAEL
ROBERT LUNDERSTEDT
Second
Defendant
Coram:
Opperman
J
Heard:
17 May 2024
Delivered:
27 May 2024. This judgment was handed down in
court and electronically by circulation to the parties'
legal
representatives
via
email
and release to SAFLII on 27 May 2024. The date and time of hand-down
is deemed to be 15h00 on 27 May 2024
Summary:
Exceptions -
Rule
23 of the Uniform Rules of Court
JUDGMENT
[1]
Rule 18(4) of the Uniform Rules of Court states
that:
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his or her claim,
defence or
answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.
[1]
[2]
Fair constitutional litigation is crucial. An
exception in terms of rule 23 has at its core to serve this purpose
and its principal
use is to raise and obtain a speedy and economical
decision on issues that are apparent on the face of the pleadings.
[3]
In
Member of the
Executive Council, Department of Education, Free State Province v
Superintendent-General for the Department of Education,
Free State
Province and Another
[2008] ZAFSHC 156
;
[2008] ZAFSHC 45
(12 June 2008) the test to be applied
in
exception applications
was enunciated
to be:
[7]
As far as paragraphs
1.2.1-
1.2.4 are concerned
it
is necessary
to keep in mind what an
excipient must establish before it can succeed with an exception:
The test on exception
(i)
In
order
for
an
exception
to
succeed,
the
excipient
must establish
that
the
pleading
is excipiable on every interpretation that can
reasonably
be attached to it. FIRST
NATIONAL BANK SOUTHERN
AFRICA
v
PERRY NO AND OTHERS
2001 (3) SA 960
(SCA) at 965D; THEUNISSEN EN
ANDERE v TRANSVAALSE LEWENDEHA WE KOöP BPK
1988 (2) SA
493
(A) at 500 E - F.
(ii)
A charitable test is used on exception, especially
in deciding whether a cause of action is established, and the pleader
is entitled
to a benevolent interpretation. PERRY'S CASE supra at 972
1-
J.
(iii)
The
court should
not
look
at
a
pleading "with
a
magnifying
glass of
too high
power." KAHN
v
STUART AND OTHERS
1942 CPD 386
at 391; PURDON
v
MULLER
1961 (2) SA 211(A)
at 214 e -
215 F. In the latter case it was stated: "minor
blemishes in, and unradical embarrassments caused by, a pleading can,
and should
be, cured by further particulars."
(iv)
"The
pleadings
must
be
read
as
a
whole;
no
paragraph
can
be
read
in
isolation." SOUTHERNPORT DEVELOPMENTS (PTY)
LTD v
TRANSNETLTD
2003 (5) SA 665
(W) at
669 A -
B.
[4]
The excipients/defendants (excipients) complain
that the claim by the respondents/plaintiffs (respondents) does not
contain the
necessary averments to sustain a cause of action and must
be struck.
[5]
The
cause of action is one of
rei
vindicatio
and
the respondents want the return of certain farm implements. Three
requirements must be met for a claim to be based on the
rei
vindicatio:
There
must
be
proof of ownership on the part of the person instituting the action;
the property must exist
and
be identifiable;
and
the defendant must be in physical control of the property at the time
the action is instituted.
[2]
[6]
The excipients in the instance took issue with the
annexure that was attached to the particulars of claim that is
supposed to describe
and identify the items that must be returned and
in the alternative; the value of which must be paid by the
excipients. This is
the overarching bone of contention. These are the
grounds for complaint against the annexure as described by counsel
for the respondents:
1.
First,
they
contend
that
the
court
cannot
have
regard
to
the
list
of
equipment
attached
to
the
particulars of claim.
2.
Second, they argue that the court cannot consider
the value of the equipment set out in the
attached
list.
3.
Third, they allege that the description of the
equipment in the list lacks detail.
[7]
The facts of the case show that adjudication of
the third ground above will also dispose of the issues on the first
and second
grounds.
[8]
During argument counsel for the excipients
magnanimously agreed that the court may allow for the opposing
parties to amend and file
again to
bring
their claim in order.
[9]
As said; exceptions, generally speaking, serve as
a means of objecting to pleadings which are not sufficiently
detailed, lack lucidity
or are incomplete. It affects the ability of
the other party to plead thereto.
[10]
Court documents must at all times be drafted with the utmost care; in
the least it must be drafted in one
language. In the instance the
combined summons was drafted in English and the annexure attached in
Afrikaans. The use of different
languages is not fatal but added to
that is that the annexure is riddled with mistakes and the items are
vaguely and generically
described. This makes it legally impossible
to react or reply or litigate further. There is not any indication in
the particulars
of claim as to how the value of the items that are
depicted in the same annexure was established. It is unacceptable to
expect
from the excipients to blindly reimburse the respondents to
the value of R1 572 000.00.
[11]
One cannot wait for the defects to be cured during
trial because the fair trial -
principle
demands that both parties be placed in a position to prepare their
defence effectively; to litigate effectively.
[12]
The annexure just speaks for itself and cannot be
tolerated in its current form and contents. It must
be
struck as legally inappropriate. This is the annexure:
DETAILS
VALUE
Planter
MF 3 ry hydrolies met spiutpomp en tenk
R
90
000,00
Planter MF 3 ry (lift)
met spiutpomp
R
50
000,00
MF skrop se raamwerk
met wiel
R
20
000,00
Selgeboude
lusemplanter
R
20
000,00
LM skofffel net
stikolof bakkie
R
15
000.00
Onkruidspuit op wiele
meet 20001 tenk en nuwe pomp
R
100
000,00
Ford K1010 kajuit en
bak met tyres
R
50
000,00
Verkeie soos ontrent
300 ysterpale 900 droppers,
50 staal pyd, ander
paie
R
150
000,00
Ou wol skuerstafel
R
20
000,00
Emmer met spesiale
jakals vlagysters -10
R
20
000,00
Verskele los ysters
voor oliekamer en stoor
R
50
000,00
Agter werkswinkel
verkele yster, tenkstaander en staal
R
50
000,00
1 x MF offsit 2.1m
breed
R
15
000,00
4 x MF raamploee 3
skaar
R
12
000,00
3 x MF Balkploee 4
skaar
R
45
000,00
3 x Ou lusemsyners
R
3
000,00
1 x 4 tol hooi hark
R
20
000,00
1 x veevoer waertjie
R
10
000,00
2 x Skoffeltjies
R
20
000,00
3 x Stolmaster
beitteploee
R
60
000,00
1 x Big ox blou
beiteploeg
R
10
000,00
l x LM 5 tand rippers
R
50
000,00
I x 3 ry ripper
saadbed voorbereider
R
I
00 000,00
2 x 1 ry "moffie"
rippers
R
20
000,00
l x John Shearer
saadbed voorbereider
R
80
000,00
I x Dortsky hammermeuk
R
50
000,00
1 x 3 ry roleg
R
30
000,00
I x 2 ry roleg
R
12
000,00
1 x Laai graaf
(hydrolies)
Verskeie ouderdele,
saad en planterkarrerjies
R
50
000,00
uit kamer van melkstal
(toegesluit)
R
30
000.00
Verskeie ander los
artikels in melkstal
R
10
000.00
Treinspoor trekpale en
ander akerpale
R
50
000,00
l x misskraper (Jan
Uys)
R
15
000,00
1 x Kunsmis toediener
R
10
000,00
1 x Outydse
mielieplanter
R
5
000,00
1 x Enjin ophyser van
H-staal
R
20
000,00
1 x Skaapselvervoeder
R
10
000,00
3 x Onderdak voerders
vir wild
R
15
000,00
1 x Baal laai vurk
R
10
000,00
5 x Ronder baa! houers
R
25
000,00
Verskeie rolle 2de
hande draad
R
10
000,00
I x 2.4m x 2.4m
Koelkamer
R
60
000,00
1 x Ford K1010 Enjin
R
80
000,00
GRAND TOTAL
R
1572
000,00
[13]
The result of the above is that the exception
succeeds in as far as the annexure is to be struck out on the basis
that it was inappropriately
drafted, the court cannot consider the
value of the equipment set out in the annexure and that the
description of the equipment
in the annexure lacks detail to identify
the items. The issue that the annexure does not form part of the text
of the particulars
of claim is not fatal but it would be prudent to
draft the particulars of claim in such a manner as to include it
therein.
[14]
If
an exception is allowed, the court will usually give the respondent
an opportunity to file an amended pleading within a stated
time. In
service of the interest of justice
[3]
and as recommended by counsel for the excipients, a reasonable
opportunity will be granted to amend the particulars of claim.
[15]
Given the fact that the excipients are successful
and the poor quality of the particulars of claim and the annexure;
the respondents
must carry the costs.
[16]
Order of Court:
Accordingly, it is
ordered that:
1.
The exceptions on the second ground
(In
re:
The quantum of the plaintiffs'
claim) and the third ground
(In re:
The
description and value of implements, equipment, and objects in the
annexure to the plaintiffs' particulars of claim) are upheld.
Save as
aforesaid
the exception on the first ground
is dismissed.
2.
The respondents (plaintiffs) are ordered to pay
the costs of suit as on party and party scale A.
3.
The plaintiffs (respondents) are afforded one (1)
month from the date of this order to amend their particulars of
claim.
OPPERMAN
J
Appearances
For
excipients/defendants:
J
DELPORT
Instructed
by: Van der Merwe Dorning Maponya Inc.
c/o
Honey Attorneys
Bloemfontein
For
the respondents/plaintiffs:
E.J.J.
NEL
Instructed
by:
Jansen
and
Jansen
Attorneys
c/o
Symington de Kok Attorneys
Bloemfontein
[1]
Substituted
by GNR.3397 of 12 May 2023.
[2]
Unimark
Distributors (Pty)
Ltd
v ERF 94 Silvertondale (Pty)
Ltd
1999
(2) SA 986
(T).
[3]
Christies
Fish
Supplies (Pty) Ltd
v
Ornelas Fishing Co (Pty)
Ltd
1978
(3) SA 431
(C).