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2024
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[2024] ZAECMKHC 53
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Emalahleni Local Municipality v Vatala and Another (2684/2022) [2024] ZAECMKHC 53 (24 May 2024)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE NO.: 2684/2022
Reportable YES/NO
In the matter between:
EMALAHLENI
LOCAL MUNICIPALITY PLAINTIFF
And
DR SITEMBELE WISEMAN
VATALA FIRST
DEFENDANT
GERALD
PATRIC DE JAGER SECOND
DEFENDANT
JUDGMENT
CENGANI-MBAKAZA AJ:
Introduction
[1] The plaintiff
(‘the municipality’) instituted a civil action against
the defendants suing them for damages
in the amount of R7 567 503,
allegedly suffered as a result of the defendants’ negligence.
[2] On 25 October
2022, the first defendant’s attorney, through a correspondence
raised an exception requesting the
plaintiff’s attorney to
remove the cause of complainant. The plaintiff failed to heed to the
request.
[3] The first
defendant approached this court alleging that the plaintiff’s
particulars of claim lack the necessary
averment to sustain a cause
of action; and the allegations are vague and embarrassing.
[4] The exception
is opposed by the plaintiff.
The summary of the
plaintiff’s particulars of claim
[5] On or about 26
June 2013, the first defendant was appointed by the plaintiff as a
Municipal Manager and Accounting Officer.
In terms of his contract of
employment, he was statutorily bound not to incur unauthorised,
irregular or fruitless and wasteful
expenditure as defined in the
Municipal Finance Management Act 56 of 2003 (MFMA). In terms of
section 1 of the MFMA, fruitless
and wasteful expenditure would mean
the expenditure that had been made in vain, the kind of expenditure
that would have been avoided
had reasonable care been exercised.
[6] On or about 12
August 2017 Ms Xolelwa Mangayi (Ms Mangayi) instituted a civil action
against the municipality suing it
for the claim consequent to
electrocution at the municipality’s sub-station. Ms Mangayi
claimed an amount of R3 420 000.
The municipality’s attorney
presented an offer to the first defendant advising him to settle the
matter. The first defendant
without any reasonable explanation or
expert advice delayed and/or refused to settle the claim and thus
acted deliberately or negligently.
As a consequence of the delay, the
matter proceeded to trial and the municipality was ordered to pay Ms
Mangayi an amount of R10 567 503
plus an additional amount
of R7 567 503.
[7] The
municipality avers that the first defendant had no reason to actively
or passively delay the process of settling
the matter which delay
culminated to a court order for a higher amount than the one offered
by the municipality. At paragraph 5.4
of the particulars of claim,
the municipality asserts that:
‘
5.4
Even the findings of the Forensic Investigation into this matter
conducted on 4 January 2021 found that there was a fruitless
and
wasteful expenditure negligently caused by the First and Second
Defendants.’
The applicable law
[8]
An exception is governed by Uniform Rule 23 of the Uniform Rules of
Court
[1]
.
Generally, a pleading must comply with the provisions of Uniform Rule
18
[2]
,
failing which such pleading may be considered vague and embarrassing
.
In
Minister
of Police v Kati
[3]
,
Tokota ADJP, in relation to the drafting of the pleadings remarked as
follows:
‘
Drafting
of pleadings is a matter of style. However, whatever style one
adopts, the pleadings must be clear and concise with a measure
of
brevity to enable the opposite side and the court to understand what
case, if any, calls for an answer. Allegations of a repetitive
and
contradictory nature can be swept aside in a whirlwind of anarchy and
often obfuscate rather than clarify issues and may result
in erratic
judgments. Brevity lubricates the wheels of justice.’
[9]
The Appellate Division in
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
[4]
adopted
the
following definition of “cause of action’:
‘
.
. . every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment
of the
court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved.’
[10]
The test applicable in deciding exceptions based on vagueness and
embarrassment arising out of lack of particularity
can be summed up
as follows
[5]
:
‘
(a) In each case
the court is obliged to consider whether the pleading does lack
particularity to an extent amounting to vagueness.
If a statement is
vague, it can either be meaningless or capable of having more than
one meaning. To simplify: the reader must
be unable to distil from
the statement a clear, single meaning
[6]
.
(b) If there is vagueness
in this sense the court is then obligated to conduct a quantitative
analysis of such embarrassment caused
to the excipient by the
vagueness complained of.
(c) In each case an ad
hoc ruling must be made to determine whether the embarrassment is so
serious as to cause prejudice to the
excipients if they are compelled
to plead to the pleading in the form to which they object. A point 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.
(d) The ultimate test as
to whether the exception should be upheld is whether the excipient is
prejudiced.
(e) The onus is on the
excipient to demonstrate both vagueness amounting to embarrassment
and embarrassment amounting to prejudice.
(f) The excipient must
make out his case for embarrassment by reference to the pleadings
alone
[7]
…..’
The parties’
legal submissions and the analysis by the court
[11] Regarding
embarrassment and vagueness of the pleadings, the first defendant
argued that the municipality does not specify
the time period when
its attorneys presented the first defendant with a settlement
proposal of R3 000 000 for a claim made by Ms
Mangayi. The
particulars of claim do not disclose a cause of action, in that the
municipality does not specify when the court order
was made in the
case between it and Ms Mangayi. The times that are relevant to the
alleged losses are not specified. Furthermore,
the municipality, so
it was argued, alleges the existence of a forensic report in
paragraph 5.4 of its particulars of claim but
fails to annex same.
The first defendant prayed that the exception be upheld, and that the
municipality’s claim be dismissed
with costs.
[12] To oppose the
exception, the municipality referred to the provisions of Section 176
(2) of the MFMA which provides,
‘
(2)
Without limiting liability in terms of the common law or other
legislation, a municipality may recover from a political office
bearer or official of the municipality, any loss or damage suffered
by it because of the deliberate or negligent unlawful actions
of that
political office bearer or official when performing a function of
office.’
[13] The first
defendant was appointed as an Accounting Officer during the period
2013 to 2019, so it was argued, he failed
to prevent the wasteful
expenditure; and the municipality suffered harm as a direct result of
the first defendant’s failure
to fulfil his statutory
obligations.
[14]
The question pertains to whether the first defendant have discharged
the onus to demonstrate vagueness and embarrassment
as well as
whether the embarrassment (if any) amounts to prejudice
[8]
.
I am also tasked to ascertain whether the first defendant has
established that no cause of action was disclosed. In order to fully
assess these issues, I will accept as true the allegations pleaded by
the plaintiff in the particulars of claim
.
In this regard, I am encouraged by the remarks made by Navsa JA in
Hlumisa
Investment Holding RF ltd and Another v Kirkins and Others
[9]
,
where he held as follows:
‘
[22]
In
deciding an exception a court must take the facts alleged in the
pleading as being correct. It is for the recipient to satisfy
the
court that the conclusion of law set out in the particulars of claim
is unsustainable.
The court may uphold the exception if it is
satisfied that the cause of action or conclusion of law cannot be
sustained on every
interpretation that can be put on those facts. As
Harms JA noted in Telamatrix, exceptions are a useful tool to ‘weed
out’
bad claims at an early stage and an unnecessary technical
approach is to be avoided. The facts are what must be accepted as
correct,
not the conclusion of law.’ (my underlining)
[15]
The fact that the first defendant was employed as a Municipal Manager
between the years 2013 to 2019 is uncontroverted.
The substance of
the allegation is such that the first defendant is able to know
whether during the period in question he was negligent
or not. In my
considered view, the issue of dates is a minor obscurity that can be
cleared up by way of further particulars. I
find that the particulars
of claim
contain a clear and concise statement of the material
facts upon which the municipality relies for its claim. For the
reasons
set out above, the first defendant is able to plead to the
plaintiff’s particulars of claim and no prejudice could be
identified.
Resultantly, the first defendant has failed to make out a
case for the relief sought.
Order
[16]
The exception is dismissed with costs.
N
CENGANI-MBAKAZA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
APPEARANCES
:
For the
Plaintiff :
Adv: Tshabalala
Instructed
by
TALENI GODI KUPISO INC.
C/o
AKHONA GEORGE & ASSOCIATES
118
High Street
Millbarn
Centre
MAKHANDA
Ref.:
Ms A George
Tel.:
046 – 004 0025
reception@aglaw.org.za
For the first
Defendant :
Adv: Sidlai
Instructed
by :
BUKKY OLOWOOKORUM ATTORNEYS
C/o
NETTELTONS ATTORNEYS
118 A
High Street
MAKHANDA
Ref.:
Ms Pienaar/Sam
Tel.:
046 – 622 7149
sam@netteltons.co.za
Date
heard :
18 April 2024
Delivered
on :
24 May 2024
[1]
Uniform Rule 23 of the Uniform Rule of court provides, ‘
(1)
Where any pleading is vague and embarrassing, or lacks averments
which are necessary to sustain an action or defence, as the
case
maybe, the opposing party may within the period allowed for filing
any subsequent pleading, deliver an exception thereto
and may apply
to the registrar to set it down for hearing within 15 days after the
delivery of such exception: Provided that:
(a)
where a party intends to take an
exception that the pleading is vague and embarrassing such party
shall, by notice, within 10
days of the receipt of the pleading
afford the party delivering the pleading, an opportunity to remove
the cause of complainant
within 15 days of such notice; and
(b)
the party excepting shall, within 10 days
from the day on which the reply to the notice referred to in
paragraph
(a)
is received, or within 15 days of such reply is due, deliver the
exception’.
[2]
Rule 18(4) 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.
(6)
A party who in his pleading relies upon a contract shall state
whether the contract is written or oral and when, where and
by whom
it was concluded, and if the contract is written a true copy thereof
or of the part relied on in the pleading shall be
annexed to the
pleading.
[3]
Minister
of Police v Kati
(CA 15/2024) [2024] ZAECMHC 26 (15 May 2024) at para 1.
[4]
1922 AD 16
at 23.
[5]
Erasmus Uniform Rules of Court October 2023 RSD 21,2023, D1-305.
[6]
Venter
and Others NNO v Barritt Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
2008 (4) SA 639
(C) paras [14] and [15] at 644G-645.
[7]
Deane v
Deane
1955
(3) SA 86
(N) at 86F.
[8]
Venter
fn2 (supra); see also
Barnard
and Another v De Klerk
(2015)/2019) [2020] ZAECPEHC 38 (22 October 2020).
[9]
2020 (5) SA 419
(SCA) at 432 para 22.