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This matter was heard virtually (Ms teams) and disposed of in terms of the directives
issued by the Judge President of this Division. The judgment and order are
accordingly published and distributed electronically.
JUDGMENT
KUBUSHI J
[1] The Defendant has taken an exception against the Plaintiffs’ consolidated
particulars of claim. In the consolidated particulars of claim the Plaintiffs allege that –
“On or about 4 July 201 9, on SABC News, during an television interview that
was broadcasted, the Defendant alleged that the Red Ant Security Relocation
and Eviction Services (Pty) Ltd (hereinafter referred to as "the Red Ants ”) and/or
the First Plaintiff as COO of the Red Ants and/or the Second Plaintiff as Deputy
CEO of the Red Ants and/or the Third Plaintiff as Director / Manager of the Red
Ants, allowed the Red Ants to . . .”
[2] The Defendant served a notice in terms of Rule 35 (14) on the Plaintiffs seeking
a "transcript" of the interview of 4 July 2019. In response thereto, a copy of the
interview was provided to the defendant on a USB disc . The Defendant transcribed
the interview and wants th e court to take the evidence in the transcribed interview into
account when considering the exception.
[3] The grounds of exception upon which the Defendant rel ies, are clearly and
succinctly stated as follows:
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“1. The Plaintiffs alleged in their consolidated particulars of claim that on 4
July 2019, on SABC News, during a television interview that was
broadcasted, the Defendant alleged that the Red Ant Security Relocation
and Eviction Services (Pty) Ltd ("Red Ants ”) and/or the Plaintiffs in their
official capacities allowed the Red Ants to, . . .
2. The Defendant requested the interview transcript under notice in terms
of rule 35(14) of the uniform rules of court, for the purposes of pleading
and it is annexed herewith marked as annexure "A".
3. The statements made by the Defendant during the interview are not
defamatory.
4. There are no statements made by the Defendant during the television
interview which refers to or related to the Plaintiffs directly and
personally.”
[4] The Defendant’s complaint as stated in the notice of exception is that the
statements made by the Defendant during the interview, as contained i n the transcript
of the interview, are not defamatory in that they do not refer or relate to the Plaintiffs
directly and personally . In oral argument it was submitted on behalf of the Defendant
that the statements refer or relate to the Red Ants which is a juristic person.
[5] A further ground of exception was raised during argument in court being that
the material or document upon which the Plaintiffs rely for their course of action is not
attached to the particulars of claim thus rende ring the particulars of claim excipiable .
[6] An exception is a legal objection to the opponent’s pleading. It complains of a
defect inherent in the pleading: admitting for the moment that all the allegations in a
summons or plea are true, it asserts that even with such admission the pleading does
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not disclose either a cause of action or a defence, as the case may be. It follows that
where an exception is taken, the court must look at the pleading excepted to as it
stands together with facts agreed to by the parties, if any, no facts outside those s tated
in the pleading can be brought into issue – except in case of inconsistency – and no
reference may be made to any other document.
[7] The Defendant’s submission that where the cause of action is premised on a
document or material , that document or material must be attached to the particulars
of claim, is correct.1 However, this is not the situation in the current matter. The
Defendant’s submission in this regard is not supported by the contents of the
particulars of claim . The particulars of claim are clear. The Plaintiffs do not rely on any
documentation or material except the words that were broadcasted during the
interview. The Plaintiffs’ allegation is that the words were broadcasted . Nowhere in
the particulars of claim is refence made to a document or material where the
statements are contained.
[8] The transcribed interview does not take the Defendant’s case any further. It is
trite that where an exception is taken, the court must look at the pleading excepted to
as it stands together with facts agreed to by the parties, if any, no facts outside those
stated in the pleading can be brought into issue and no reference may be made to any
other document.
[9] The argument that the statements made by the Defendant during the interview,
as stated on the transcript of the interview, are not defamatory in that the statements
do not refer or relate to the Plaintiffs directly and personally , is, also, not sustainable.
It has been held that an exception ought to be dealt with sensibly and not in an over
1 See Volkskas Bank Ltd v Wilkinson 1992 (2) SA 388 at 389A.