IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1)
(2)
(3)
06/03/2025
DATE REPORTABLE : NO
OF INTEREST TO OTHER JUDGES: NO
REVISED: YES/NO
SIGNATURE
In the matter between:
FLM SA (PTY) LIMITED
And
SEQUENCE LOGISTICS (PTY) LIMITED
Neutral Citation: CASE NO: 2023-061832
Plaintiff
Defendant
Delivered: By transmission to the parties via email and uploading onto Case
Lines the Judgment is deemed to be delivered.
JUDGMENT
SENYATSIJ
2
Introduction and background
[1] The first application concerns an exception to the particulars of claim
following the claim of damages by the respondent (the plaintiff ) in the main
case. The second application concerns costs application bro ught in terms
of Rule 30A of the Uniform Rules. How ever, the Rule 30 application which
had been instit uted by the plaintiff was withdrawn without the tender of
costs to the defendant. It is because of the withdrawal of the application
without the tender for costs that the defendant brings the application for a
costs order against the plaintiff for withdrawing the irregular proceedings
application brought in terms of Rule 30 that the defendant seeks the costs
order.
[2] The main claim relates to alleged damages caused by the loss of stock of
beef kept by the applicant (defendant) in terms of the cold storage
warehousing agreement between the parties. For convenience’s sake the
parties will be referred to as in the main case. The defendant initially raised
three grounds of exception. How ever, it has abandoned the first ground of
exception and therefore only the second and the third ground will be
considered.
[3] The plaintiff ’s cause of action relates to two claims , “Claim A” in respect
of the alleged loss that during Septemb er 2022 (“the first tranche of meat ”)
weighing9 148.65 kg and October 2022. It avers in its particulars of claim
that the defendant caused the meat that was warehoused on behalf of the
plaintiff to be lost whilst in its care and that the aggregate value of the loss
is R769 792.12. Claim B, so states the plaintiff in its partic ulars of claim,
relates to the loss of meat weighing 15 96.85 kilogram s during May
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2023( “the second tranche of meat”) and the alleged aggregate loss is
R116 570.05.
[4] I will deal with the exception application first and thereafter with the
costs application.
Grounds of exce ption
[5] Initially , the defendant raised three grounds of exception. However, it
abandoned the first ground of exception which was confirmed in the joint
practice note filed by the parties. Only the second and third ground of
exception will be dealt with in this judgment.
The second ground of exception
[6] The defendant avers that in paragraph 22 of the particulars of claim, the
plaintiff alleges that it suffered damages because of the defendant's “wilful
misconduct and/or gross negligence”. It contends that the allegations of
wilful misconduct and gross negligence are conclusions of law. The
defendant contends that the plaintiff has not pleaded any fact from which
the defendant could possibly ascertain th at it acted in a manner that
amounts to either misconduct of wilful nature; and/or gross negligence (to
the extent that such an allegation is permiss ible). The defendant ,
furthermore, states that the particulars of claim do not aver su fficient facts
to sustain a cause of action.
The third ground of exception
[7] The defendant s tates that in paragraphs 13 and 17 of the parti culars of
claim, the plaintiff alleges that it had instructed the defendant to release the
alleged stock during September 2022 and May 2023 respectively.
Furthermore, so continues the defendant, in paragraphs 15 and 19 of the
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particulars of c laim, the plaintiff alleges that it became aware of the alleged
loss of its stock on 14 October 2022 and 10 May 2023 respectively. The
defen dant contes ts and states that in paragraph 23 of the particulars of
claim, the plaintiff alleges that on 22 May 2023, it made demand from the
defendant in respect of damages that it alleged ly suffered.
[8] The defendant contends that Clause 2.3 of the alleged contract provides
that:
“Any claim made by the Customer must be made to the Company prior to, or at the
time, of the removal of the goods in question from the premises of the Company or such
other later date, not exceeding 3(three) days thereafter, by which the Customer might
reasonably be expected to become aware of aware thereof, failing which the claim shall
be deemed to have prescribed and shall be of no legal force or effect”
[9] The defendant contends that the plaintiff was aware of the defendant’s
identity and the facts upon which its supposed claim was based,
alternatively had it e xercised reasonable care, it could and should have
acquired such knowledge in respect of its first claim , before 14 October
2022 a nd in respect of the plaintiff’s second claim , before 10 May 2023 .
[10] Furthermore, the defendant states that the plaintiff’s 22 May 2023 demand
occurred more than three d ays after September 2022 and 14 October 2022
and 10 May 2023. It contends that absent a claim having been made to the
defendant in accordance with clause 2.3 of the alleged contract , the plaintiff
is contractually time barred from prosecuting the claims, and that the
particulars of claim do not aver sufficient facts to sustain a cause of action
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[11] The defendant contends that based on the two grounds of exc eption set
forth herein, the exception should be upheld.
The Plaintiff’s rebuttal of the two grounds of exception
Second ground of exception.
[12] In rebutting the second ground of exception, the plaintiff avers that the
second ground of exception constitutes an unfounded and inappropriate
reliance on Rule 23 as the allegation of the defendant’s breach arising from
the wilful miscond uct, alternatively gross negligence, discloses a c ause of
action against the defendant which it may plead without suffering any
prejudice.
Third ground of exception
[13] With regards to the third ground of exception alleged by the defendant , the
plaintiff contends that the defendant erroneously concludes the existence
of the dispute with respect to any averment results in such averment not
being pleaded correctly or at all. The plaintiff avers that the third ground
of exception constitutes an unfounded and inappropriate reliance on Rule
23 because, firstly, the averments based on the contractual damages have
been correctly pleaded and so avers the plaintiff, they disclose a cause of
action against the defendant and the averments can be plead ed to without
prejudice .
[14] Secondly, so the argument continues by the plaintiff, the averments made
by the plaintiff are exclusive of those averred by the defendant in its
exception which the defendant alleges are re quired of the plaintiff. The
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plaintiff concludes that the defendant is abusing Rule 23 , which should be
invoked once the pleadings have closed.
Issue for determination
[15] The first issue for dete rmination is whether the particulars of claim disclose
the cause of action. The second issue is whether the plaintiff is liable for
costs of withdrawal of the Rule 30 and 30A applications without tendering
costs. I will deal with the first issue and thereafter the second issue.
Legal principles on exceptions
[16] Before I deal with the general legal principles on exceptions as deve loped
by our common law through various courts judgments, it is important to
state that the procedure on exceptions is regulated by Rule 23 (1) of the
Uniform Rules which provides as follows:
“(1) Where any pleading is vague and embarrassing, or lacks averments which are
necessary to sustain an action or defence, as the case may be, 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 a pleading is vague and
embarrassing such party shall, by notice, within 10 d ays of receipt of the pleading,
afford the party delivering the pleading, an opportunity to remove the cause of
complaint within 15 days of such notice; and
(b) the party excepting shall, within 10 days from the date on which a reply to the
notice referre d to in paragraph (a) is received, or within 15 days from which such
reply is due, deliver the exception. ”
7
[17] In Merb (Pty) Ltd v Matthews1 the following useful summary of the some
of the general principles applicable to exceptions is made 59 by Maier -
Frawley J:
“8. These were conveniently summarised by Makgoka J in Living Hands2 as follows:
‘Before I consider the exceptions, an overview of the applicable general principles
distilled from case law is necessary:
(a) In considering an exception that a pleading does not sustain a cause of
action, the court will accept, as true, the allegations pleaded by the plaintiff to
assess whether they disclose a cause of action.
(b) The object of an exception is not to embarrass one’s opponent or to take
advantage of a technical flaw, but to dispose of the case or a portion thereof in
an expeditious manner, or to protect oneself against an embarrassment which is
so serious as to merit the costs even of an exception.
(c) The purpose of an excepti on is to raise a substantive question of law which
may have the effect of settling the dispute between the parties. If the exception
is not taken for that purpose, an excipient should make out a very clear case
before it would be allowed to succeed.
(d) An excipient who alleges that a summons does not disclose a cause of
action must establish that, upon any construction of the particulars of claim, no
cause of action is disclosed.
(e) An over -technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out cases without legal
merit.
(f) Pleadings must be read as a whole, and an exception cannot be taken to a
paragraph or a part of a pleading that is not self -contained.
(g) Minor blemishes and un radical embarrassments caused by a pleading can
and should be cured by further particulars. ’”
1 2020 (3) SA 535 (ECP) at para [21]. See also the authorities cited therein.
2 Living Hands (Pty) Ltd v Ditz 2013 (2) SA 368 (GSJ) at 374G.
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[18] An exception to a pleading on the ground that it is vague, and embarrassing
requires a two -fold consideration:
(i) whether the pleading lacks particularity to the extent that it is vague; and
(ii) whether the vagueness causes embarrassment of such a nature that the excipient is
prejudiced in the sense that he/she cannot plead or properly prepare for trial. The
excip ient must demonstrate that the pleading is ambiguous, meaningless, contradictory
or capable of more than one meaning, to the extent that it amounts to vagueness, which
vagueness causes embarrassment to the excipient.’3
[19] An exception should be dealt with sensibly and not in an over -technical
manner. 4 Thus, it is ‘only if the court can conclude that it is impossible to
recognize the claim, irrespective of the facts as they might emerge at the
trial, that the exception can and should be upheld’.5
[20] If the exception is successful, the proper course for the court is to uphold
it. When an exception is upheld, it is the pleading to which exception is
taken which is destroyed. The remainder of the evidence does not
crumble.6 The upholding of an excepti on to a declaration or a combined
3 See Erasmus - Commentary on Rule 23(1).
4 See Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461
(SCA) at 465H. See also Jake Trading CC v Rambore (Pty) Ltd t/a Rambore Specialist Contractors (unreported,
WCC case no 11909/2017 dated 13 March 2019) at paragraph [32]; Bendrew Trading v Sihle Property Developers
and Plant Hire (unreported, MM case no 1857/2020 dated 13 August 2021) at paragraph [9]; Luke M Tembani v
President of the Republic of South Africa (unreported, SCA case no 167/2021 dated 20 May 2022) at paragra ph
[14]; Altcoin Trader (Pty) Ltd v Basel (unreported, GJ case no 28739/2021 dated 12 September 2022) at paragraph
[6]; Lovell v Lovell (unreported, GP case no 24583/2009 dated 22 September 2022) at paragraph [15].
5 Luke M Tembani v President of the Repub lic of South Africa (unreported, SCA case no 167/2021 dated 20 May
2022) at paragraph [16]; Lovell v Lovell (unreported, GP case no 24583/2009 dated 22 September 2022) at
paragraph [16]; Shopfitters Studio (Pty) v Ltd Dynamic Design Upholstery (Pty) Ltd (unreported, GP case no
27419/2021 dated 28 November 2022) at paragraph [10].
6 Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land
Affairs) 1991 (3) SA 787 (T) at 791H; Princeps (Edms) Bpk v Van Heerden NO 1991 (3) SA 842 (T) at 845A –F.
The contrary view taken in Natal Fresh Produce Growers’ Association v Agroserve (Pty) Ltd 1991 (3) SA 795
9
summons does not, therefore, carry with it the dismissal of the summons
or of the action.7 The unsuccessful party may then apply for leave to
amend the particulars of claim. It is, in fact, the invariable practice of the
courts, in cases where an exception has successfully been taken to an initial
pleading that it discloses no cause of action, to order that the pleading be
set aside and that the plaintiff be given leave, if s o advised, to file an
amended pleading within a certain period .8
[21] If a pleading is bad in law, the answer is to except;9 if it is vague and
embarrassing, notice to cure may be given or further particulars (for
purposes of trial) may be requested; an d if the legal representative for a
party has been genuinely taken by surprise by his opponent’s reference to
the cause of action in the opening address, he should take the opportunity
to say so at the outset and object to the evidence if it does not accor d with
(N) at 800F –801C was expressly rejected by the Appellate Division in Group Five Building Ltd v Government of
the Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593 (A) at 603C –
D; Constantaras v BCE Foodservice Equipment (Pty) Ltd 2007 ( 6) SA 338 (SCA) at 348H –349A; Ocean Echo
Properties 327 CC v Old Mutual Life Assurance Co (South Africa) Ltd 2018 (3) SA 405 (SCA) at 409C; Thipe v
City of Tshwane Metropolitan Municipality (unreported, SCA case no 254/2019 dated 16 October 2020) at
paragraph [23].
7 Johannesburg Municipality v Kerr 1915 WLD 35 at 37; Berrange v Samuels II 1938 WLD 189 at 190; Santam
Insurance Co Ltd v Manqele 1975 (1) SA 607 (D) at 610C; Group Five Building Ltd v Government of the
Republic of South Africa (Minister of Public Works and Land Affairs) 1991 (3) SA 787 (T) at 791H –I; Group
Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land
Affairs) 1993 (2) SA 5 93 (A) at 603C –H; Constantaras v BCE Foodservice Equipment (Pty) Ltd 2007 (6) SA 338
(SCA) at 348C –E; H v Fetal Assessment Centre 2015 (2) SA 193 (CC) at 219A –B.
8 Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land
Affairs) 1993 (2) SA 593 (A) at 602D; Trope v South African Reserve Bank 1993 (3) SA 264 (A) at 269H; Rowe
v Rowe 1997 (4) SA 160 (SCA) at 16 7G–I; Constantaras v BCE Foodservice Equipment (Pty) Ltd 2007 (6) SA
338 (SCA) at 348C –F; H v Fetal Assessment Centre 2015 (2) SA 193 (CC) at 219A –B; Baliso v FirstRand Bank
Ltd t/a Wesbank 2017 (1) SA 292 (CC) at 302G; Ocean Echo Properties 327 CC v Old Mutual Life Assurance
Co (South Africa) Lt d 2018 (3) SA 405 (SCA) at 409C –E; Thipe v City of Tshwane Metropolitan
Municipality (unreported, SCA case no 254/2019 dated 16 October 2020) at paragraph [23]. For a case where an
exception was upheld and the plaintiff’s claim dismissed without leave to amend, see LM v DM 2021 (5) SA 607
(GP) at paragraph [50].
9 Trustee, Bus Industry Restructuring Fund v Break Through Investments CC 2008 (1) SA 67 (SCA) at paragraph
[11]; Hill NO v Strauss (unreported, GJ case no 13523/2020 dated 2 July 2021) at paragraph [14]; Taitz Cellular
(Pty) Ltd t/a Blue Cellular v Chadez Enterprises (Pty) Ltd (unreported, GJ case no 29643/2021 dated 3 August
2022) at paragraph 12).
10
the pleadings. What a party cannot do, is to sit back, say nothing and then
complain that the pleading is defective and that he was taken by surprise.10
[22] The test applicable in deciding exceptions based on vagueness and
embarrassment arising ou t of lack of particularity can be summed up as
follows:11
a) In each case the court is obliged first to consider whether the
pleading does lack particularity to an extent amounting to vagueness.
If a statement is vague, it is either meaningless or capable of more
than one meaning.12 To put it at its simplest: the reader must be
unable to distil from the statement a clear, single meaning.13
(b) 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 by the vagueness complained
of.14
(c) 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 is compelled to plead to the pleading in the form to which he
10 MN v AJ 2013 (3) SA 26 (WCC) at 33H and 35G –I; ETG Agro (Pty) Ltd v Varuna Eastern Cape (Pty)
Ltd (unreported, ECG case no 5206/2016 dated 3 May 2021) at paragrap h [6].
11 See Lockhat v Minister of the Interior 1960 (3) SA 765 (D) at 777A –E; Quinlan v MacGregor 1960 (4) SA 383
(D) at 393F –H; Trope v South African Reserve Ba nk 1992 (3) SA 208 (T) at 211B; Gallagher Group Ltd v IO
Tech Manufacturing (Pty) Ltd 2014 (2) SA 157 (GNP) at 166H–J.
12 Leathern v Tredoux (1911) 32 NLR 346 at 348; Callender -Easby v Grahamstown Municipality 1981 (2) SA
810 (E) at 812H; Wilson v South African Railways and Harbours 1981 (3) SA 1016 (C) at 1018H; Venter and
Others NNO v Barritt; Venter and Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4) SA 639 (C) at
644A –B.
13 Venter and Others NNO v Barritt; Venter and Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4)
SA 639 (C) at 644B.
14 Quinlan v MacGregor 1960 (4) SA 383 (D) at 393E –H; Trope v South African Reserve Bank 1992 (3) SA 208
(T) at 211B; ABSA Bank Ltd v Bo ksburg Transitional Local Council 1997 (2) SA 415 (W) at 421I –422A.
In International Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A) at 613B and Lockhat v Minister of the
Interior 1960 (3) SA 765 (D) at 777B it is said that it must be shown that the excipient will be ‘substantially
embarrassed’ by the vagueness or lack of particularity.
11
objects.15 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 mino r detail.
(d) The ultimate test as to whether the exception should be upheld
is whether the excipient is prejudiced.16
[23] A summons will be vague and embarrassing where it is not clear whether
the plaintiff sues in contract or in delict,17 or upon which of two possible
delictual bases he sues,18 or what the contract is on which he relies,19 or
whether he sues on a written contract or a subsequent oral contract,20 or if
it can be read in any one of several different ways,21 or if there is more
than one claim and the relief claimed in respect of each is not separately
set out.22
15 ABSA Bank Ltd v Boksburg Transitional Local Council 1997 (2) SA 415 (W ) at 421J –422A; Venter and Others
NNO v Barritt; Venter and Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4) SA 639 (C) at 645C –
D; Standard Bank of South Africa Ltd v Hunky dory Investments 194 (Pty) Ltd and Another (No 1) 2010 (1) SA
627 (C) at 630B.
16 Quinlan v MacGregor 1960 (4) SA 383 (D) at 393G; Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA
297 (C) at 298A; Trope v South African Reserve Bank 1992 (3) SA 208 (T) at 211B; Francis v Sharp 2004 (3)
SA 230 (C) at 240E –F; Standard Bank of South Africa Ltd v Hunkydory Investments 194 (Pty) Ltd and Another
(No 1) 2010 (1) SA 627 (C) at 630B; Bendrew Trading v Sihle Property Developers and Plant Hire (unreported,
MM case no 1857/2020 dated 13 August 2021) at paragraph [11]. Whether the excipient is p rejudiced involves ‘a
factual enquiry and a question of degree, influenced by the nature of the allegations, their contents, the nature of
the claim and the relationship between the parties’ (Lovell v Lovell (unreported, GP case no 24583/2009 dated 22
September 2022) at paragraph [20] and the authorities there referred to).
17 Brodovsky v Ackerman 1913 CPD 996; Wellworths Bazaars Ltd v Chandlers Ltd 1948 (3) SA 348 (W) ; Dunn
and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) ; Gerber
v Naude 1971 (3) SA 55 (T) ; Pocket Holdings (Pvt) Ltd v Lobel’s Holdings (Pvt) Ltd 1966 (4) S A 238
(R); Benteler South Africa (Pty) Ltd v Morris Material Handling SA (Pty) Ltd t/a Crane Aid (unreported, ECGq
case no 3354/2021 dated 16 August 2022) at paragraph [15].
18 Kock v Zeeman 1943 OPD 135.
19 Luttig v Jacobs 1951 (4) SA 563 (O)
20 Herbst v Smit 1929 TPD 306.
21 General Commercial and Industrial Finance Corporation Ltd v Pretoria Portland Cement Co Ltd 1944 AD 444 at
454; Callender -Easby v Grahamstown Municipality 1981 (2) SA 810 (E) at 812H; Wilson v South African
Railways and Harbours 1981 (3) SA 1016 (C) at 1018A; Benteler South Africa (Pty) Ltd v Morris Material
Handling SA (Pty) Ltd t/a Crane Aid (unreported, ECGq case no 3354/2021 dated 16 August 2022) at paragraph
[13].
22 Kock v Zeeman 1943 OPD 135 at 139; Greyvenstein v Hattingh 1925 EDL 308.
12
[24] It has been held in Mineral Sands Resources (Pty) Ltd and Others v Reddell
and Others23, the Constitutional Court held that “The excipient must satisfy the
court that the conclusion of law pleaded by a defendant cannot be supported by any
reasonable interpretation of the particulars of claim.24 In adjudicating an exception, the
facts pleaded by the defendants must all be accepted as true.25”
Analysis of the particulars of claim and reasons
[25] Before I analyse the particulars of claim and reasons , it is important to
consider the authorities relied on by the defendant for the proposition that
the remaining two grounds of exception should be upheld. I will refer to
some of those cases .
[26] In seeking to persuade me , Mr Pye SC referred to various cases which he
says supports the proposition that the two grounds of exce ptions should
be upheld. I have considered the cases referred to me by Mr . Pye SC. In
my view the facts of those cases are different from the instant case.
[27] I therefore hold the view that the defendant can plead to the particulars of
claim and raise whatever defence it deems necessary. Consequently, the
defendant will not be embarrassed by pleading to the particulars of claim
raised herein.
23 CCT 66/21) [2022] ZACC 37; 2023 (2) SA 68 (CC); 2023 (7) BCLR 779 (CC ) at para 41
24 Baliso v Firstrand Bank Ltd t/a Wesbank [2016] ZACC 23 ; 2017 (1) SA 292 (CC); 2016
(10) BCLR 1253 (CC).
25 Stewart v Botha [2008] ZASCA 84 ; 2008 (6) SA 310 (SCA) at para 4.
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Order
[28] The exceptions are dismissed with costs.
MLSENYATSI
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , JOHANNESBURG
14
DATE APPLICATION HEARD : 15 October 2024
DATE JUDGMENT HANDED DOWN : 06 March 2025
APPEARANCES
Counsel for the Applicant: Adv Pye SC
Instructed by: Andre Pienaar and Associates
Counsel for the Respondent: Adv Marc Cooke
Instructed by: David C Feldman Attorneys