Reportable:

YES NO

Circulate to Judges:

YES NO

Circulate to Regional Magistrates:

YES NO

Circulate to Magistrates:

YES NO

## IN THE HIGH COURT OF SOUTH AFRICA NORTHERN CAPE DIVISION, KIMBERLEY

Case No:

In the matter between:

VUYISWA MENEMENE

and

THE NATIONAL OFFICE, SPAR GROUP LIMITED SPRINGBOK SPAR GROUP LIMITED SPRINGBOK SPAR SECURITY OFFICERS THE SPRINGBOK SPAR LIMITED MANAGER: CELINE BURGER

Heard on:

25/10/2024

Delivered on:

14/03/2025

Summary: Pleadings. Particulars of Claim not complying with Rule 18. Excepted to. Rule 23(1) Uniform Rules of Court Plaintiff filed Notice to Amend Particulars . Second exception filed. Whether two exception notices comprise irregular proceedings warranting setting aside as contemplated in Rule 30. Whether plaintiffs Particulars of Claim are vague and embarrassing defendants unable to plead thereto filing

## ORDER

In the result the following order is made:

- 1 The exception is upheld.

2074/2021

PlaintifflApplicant

First DefendantRespondent Second Defendant/Respondent Third DefendantRespondent

Fourth DefendantRespondent

- 2 The plaintiff is granted leave to amend her particulars of claim within a period of 21 days from the date of this order.
- 3 The plaintiff is ordered to pay the costs, which includes costs of the Rule 30 application:

## JUDGMENT: EXCEPTION

## MAMOSEBO ADJP

- [1] The Plaintiff, Ms Vuyiswa Menemene; is claiming damages against the defendants for her alleged unlawful arrest and detention on 7 2020 The defendants took an exception to the plaintiffs particulars on the basis that are vague and embarrassing: The plaintiff filed amended particulars of claim to which the defendants excepted once more. May they

## Rule 30 application

- [2] The plaintiff brought an application in terms of Rule 30 claiming that the defendant's second notice of exception was an irregular process. After the plaintiff ascertained that the notices were not identical but were to the same effect, she filed a Notice of Withdrawal on 29 August 2024. The respondents, however; claim costs in respect of this application since they had filed opposing papers. Based on the withdrawal, it is not necessary to deal with this aspect any further.

## Ihe condonation application

- [3] The plaintiffs attorney sought condonation for his failure to file the Rule 30 application within the period prescribed in the rules. His explanation for the failure is that he displayed symptoms of Covid and, although he selfmedicated by using Vicks and brewed Gumtree bark portion; he did not seek any medical intervention. Mr Olivier; for the excipients; submitted that this explanation only covers the period 18 2023 to 09 June 2023 and fails to address two public holidays within that period. The attorney's explanation failed to cover the period between 02 and 18 2023. It was contended further that no reasons were disclosed to the court why another attorney of May May

the same firm could not have assisted with the preparation of this application:

- [4] The Constitutional Court made this pronouncement pertaining to condonation in Grootboom v National Prosecuting Authority' .

'It is now trite that condonation cannot be had for the mere asking. A party seeking condonation must make out a case entitling it to the court's indulgence. It must show sufficient cause This requires a party to give a full explanation for the noncompliance with the rules or court's directions. Of great significance; the explanation must be reasonable enough to excuse the default.'

It follows therefore that the explanation by the plaintiff s attorney pertaining to the late of the Rule 30 application is inadequate to justify the granting of the condonation. been entitled to the order of condonation; but deal with this aspect at para 17 below. filing

## Ihe exception

- [5] Williams J postponed the exception to the opposed roll. Following some argument; ruled that the matter is properly before me and directed that the parties proceed with argument; which did. The defendants excepted to the plaintiffs particulars on the basis that are vague and embarrassing. Rule 23(1) of the Uniform Rules of Court stipulates that: they they
2. 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 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 filing
3. (a) where a party intends to take an exception that a pleading is vague and embarrassing such party shall, by notice, within 10 days of receipt of the pleading, afford the party delivering the pleading; an

Grootboom v National Prosecuting Authority 2014 (2) SA 68 (CC) para 23

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 referred to in paragraph (a) is received , or within 15 days from which such reply is due, deliver the exception.
- (2)
- (3) Wherever an exception is taken to any pleading; the grounds upon which the exception is founded shall be clearly and concisely stated:'
- [6] These are the grounds upon which the exception is founded:
- '1 The plaintiffs ostensible claim is based on unlawful arrest and detention (deprivation of liberty) which allegedly occurred on 07 2020. May
- 2 In paragraph 11 the plaintiff alleges [she] was detained for 2 hours on 07 May 2020.
- 3 The remainder of the particulars of claim ostensibly set out the requirements for a claim of malicious prosecution just to claim that [she] was wrongfully and maliciously detained.
- 4 It is therefore unclear whether plaintiff bases [her] purported claim on unlawful arrest, malicious detention andlor malicious prosecution.
- 5 The plaintiff thereafter in paragraph 15 of the particulars of claim pleads that various constitutional and personality rights have been which inter alia, include and the impairment of such rights .
- 6 In paragraph 15 the plaintiff pleads that [she] has suffered damages in various overstated components totalling 1 000 000.00 [R1 million]:
- 7 Such amounts are unsubstantiated, cannot be seen to be an estimate and have no logical basis.

[7]

[8]

- 8 Further to this, the alleged defamation component is a separate cause of action; the requirements of which are not properly substantiated and are not pleaded.
- 9 Wherefore, paragraphs 7 15 of the plaintiff's particulars of claim are so vague and embarrassing that the defendants are unable to plead thereto

Where an exception is taken; the court must look at the pleadings excepted to as it intersects with the facts agreed to by the parties; if at all. No facts outside those stated in the pleading may be brought into issue except in the case of inconsistency 2

From the aforegoing it is unclear whether the plaintiff is basing her claim on unlawful arrest and detention or malicious prosecution. In the amended particulars it further seems as if she is also pleading an infringement of her constitutional and personal rights which led to her sustaining injuries and impairment of dignity . She has also, without quantifying her claim; pleaded damages to the tune of RI million. In addition to the aforementioned , the plaintiff also alleges defamation. There are different requirements and elements for the different causes of action. In as far as the requirements for malicious prosecution are concerned see Magwabeni v Liomba: . From what is contained in the amended particulars of claim, it is apparent that the plaintiff has not made all the necessary averments to satisfy the requirements.

[9]

Pertaining to the unlawful arrest and detention aspect Constitutional Court in its majority judgment in De Klerk V Minister of Polices emphasised the requirements for unlawful arrest and detention under the actio iniuriarum. The same applies to the allegation of defamation buttressed in SA

Erasmus, Superior Court Practice; Second Edition, Volume 2 Juta; [Service 21,2023] D1-295

See also Para 108; Amler's Precedents of Pleadings; 2018, 9th Edition; Malicious and Wrongful Legal Proceedings; Minister of Justice and Constitutional Development and Others v Moleko 2009 (2) SACR 585 (SCA)

Magwabeni v Liomba (198/13) [2015] ZASCA 117 (11 September 2015)

5 De Klerk v Minister of Police 2020 (1) SACR 1 (CC) paras 13 and 14

Associated Newspaper Ltd v Estate Pelserf that the words concerning to the plaintiff must be alleged .

- [10] agree with the remarks by McCreath J in Trope V South African Reserve Bank and Another and two other where the following was said: cases7

'An exception to a pleading on the ground that it is vague and embarrassing involves a two-fold consideration. The first is whether the pleading lacks particularity to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced (Quinlan V MacGregor 1960 (4) SA 383 (D) at 393E H) As to whether there is prejudice; the ability of the excipient to produce an exception-proof plea is not the only; nor indeed the most important; test see the remarks of Conradie J in Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 298G H.If that were the only test, the object of pleadings to enable parties to come to trial prepared to meet each other's case and not be taken by surprise may well be defeated '

- [11] Regard being had to Rule 18(4) of the Uniform Rules of Court which requires every pleading to 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 thereto; it is necessary to plead with a greater degree of particularity .
- [12] This is what appears in the plaintiffs amended particulars of claim:
3. '7,1 On or about 07 2020 and at Springbok Spar, Northern Cape Province; within the area of jurisdiction of this honourable court, Springbok Spar Security Officers (whose further particulars are unknown to the plaintiff) , wrongfully and maliciously set the law in motion against the plaintiff by arresting the plaintiff on a false charge of theft in the presence of members of the public. May
4. 7.2 Thereafter; the plaintiff was detained at Springbok Spar control room at the instance of the security officers of the Spar for 2 hours and

SA Associated Newspaper Ltd v Estate Pelser 1975 (4) SA 797 (A) at 810

Trope v South African Reserve Bank and Another and two other cases 1992 (3) SA 208 (TPD) at 211A

8

10

various other employees of the Spar whose names are unknown to the plaintiff.

- 7.3 In pursuit of the theft charge, the security of the Springbok insisted to open the theft charge but the manager refused as the CCTV showed that the plaintiff did not commit any crime and the plaintiff was released from detention by the manager. Spar
- When the security officers arresting the plaintiff causing her to be detained and pursuing the theft charge against the plaintiff in concert with the Spar Security Officers Spar
- 8.1 Had no reasonable and or probable cause for doing so;
- 8.2 Did not have any reasonable belief in the truth of the information given to them relevant thereto;
- 8.3 Acted with malice;
- 8.4 Acted with the intention to injure the reputation and good name of the plaintiff.
- 9 Both Security Officers and the Manager owed the plaintiff a duty of care in that: Spar
- 9.1 To assess the strength of the Spar Security Officers' case against the plaintiff and to determine whether there existed a prima facie case against the plaintiff.
- 9.2 To ensure that the plaintiff was not detained in Spar questioninglcontrol [room] or that her detention in questioninglcontrol room was not extended for 2 hours; where no prima facie case existed against the plaintiff .

The Springbok Spar Security Officers and Springbok Spar Manager intentionally; alternatively negligently; breached the duty of care that owed to the plaintiff in that failed they they

- 10.1 To assess the strength of the case of theft against the plaintiff and determine whether there existed a prima facie case against the plaintiff .
- 10.2 To ensure that the plaintiff was not detained in questioninglcontrol room for 2 hours, or that her detention in the questioning room not be extended; where no prima facie case existed against the plaintiff.
11. As a result of the breach of the legal duty, as mentioned above; the plaintiff was wrongfully; unlawfully and maliciously detained from 07 May 2020 until she was released after 2 hours of detention and arrest.
- 12 As a result of the aforegoing; the plaintiff
- 12.1 was humiliated and degraded;
- 12.2 was caused to be detained in a questioning room-
- 12.2.1 The plaintiff was insulted and injured in her personality;
- 12.2.2 The plaintiff's integrity, dignity and self-esteem was impaired;
- 12.2.3 The plaintiff lost amenities of life during her wrongful arrest and detention in that
- (a) She was unable to socialize with friends and family;
- (b) She was unable to partake in a loving relationship with her partner;
- (c) She was unable to eat food of her choice;
- (d) She was unable to eat food; and
- (e) She was deprived her freedom of movement.
13. The plaintiff was embarrassed, humiliated and degraded;
14. At all material times hereto
15. As a result of the foregoing, the plaintiff suffered loss in the sum of
- 15.1 Estimated R35O 000.00 for wrongful; unlawful and malicious arrest;

- 15.2 hours;
- Estimated R1OO 000.00 for contumelia; for which she holds the defendants liable;
- 15.4 Estimated R1OO 000.00 for defamation of character; for which she holds the defendants liable;
- 15.5 Estimated RIOO 000.00 for emotional shock; for which she holds the defendants liable.
16. The Springbok Security Officers and Manager were acting within the course and scope as the employees of the Spar Limited Group at the time of the wrongful arrest ' Spar
- [13] A plea must be intelligible; and the opponent must not be embarrassed in meeting it. Curlewis JA said in Builders; Ltd v Union Government :
- 'A plea should be clear and unequivocal, it should not leave one guessing as to what it means '

Or as Gardiner JP said in EK Green & Co v Adkins9:

'When a plea is vague as to what the defence is, or as to whether there are one or two defences, think such plea ought not to be allowed to stand even though some defence may be wrapped up in it:' good

- [14] The plaintiff has relied on several causes of action in the amended particulars which in the end makes the pleading lack specificity_ As enunciated by Hoexter JA in Dharumpal Transport (Pty) Ltd v Dharumpalto the main purpose of the exception that a declaration discloses no cause of action is to avoid the leading of unnecessary evidence. am persuaded by the submission made on behalf of the defendants that none of the causes of

Builders; Ltd v Union Government 1928 AD 46 at 52

10 Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) at 706D _ E

EK Green & Co v Adkins 1930 CPD 253 at 257

action are pleaded with sufficient specificity to make out all the essential elements The defendants cannot therefore properly plead to the particulars as stand. they

- [15] It is notable that the manner in which the plaintiff has set out the damages does not comply with Rule 18(10) since it does not enable the defendant to reasonably assess the quantum. It would be prejudiced if the defendant were required to plead to the particulars as pleaded. In National Director of Public Prosecutions v Phillips and Otherst1 Heher J stated:

'Pleadings must be lucid, logical and intelligible. A litigant must plead his cause of action or defence with at least such clarity and precision as is reasonably necessary to alert his opponent to the case he has to meet. A litigant who fails to do so may not thereafter advance a contention of law or fact if its determination may depend on evidence which his opponent has failed to place before the court because he was not sufficiently alerted to its relevance.

- [16] in respect of the damages claimed am of the view that itis far from sufficient to enable the defendants to plead.
- [17] The plaintiffs particulars are vague and embarrassing. Itfollows that the exception should accordingly succeed. There is no reason why costs should not follow the result. The respondents had filed their Notice of Exception 19 days out of time without seeking condonation: Regard being had to the fact that both parties acted outside the rules of the court pertaining to seeking condonation from court; each party will have to carry its own costs pertaining to the aspect of condonation:.
- [18] In the result the following order is made:
4. 1 . The exception is upheld.
5. 2 The plaintiff is granted leave to amend her particulars of claim within a period of 21 days from the date of this order.

11 National Director of Public Prosecutions v Phillips and Others 2002 (4) SA 60 (W) at 106E = H

- 3 The plaintiff is ordered to pay costs, which includes costs of the Rule 30 application:

## ACTING BEPUTY JUDGE PRESIDENT NORTHERN CAPE DIVISION

MC MAMOSEBO

For the plaintiffl respondent Instructed by:

Mr Sanele Mjila PP Petshana Attorneys Inc

For the defendantexcipient: Instructed by:

Adv. JL Olivier Gildenhuys Malatji Inc clo Elliot Maris Attorneys