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
KWAZULU -NATAL LOCAL DIVISION, DURBAN

CASE NO: D13804/2023

In the matter between:

MOHAMMED ABDOOL SATAR ARBEE N.O. FIRST APPLICANT

NAIEM ESSA N.O. SECOND APP LICANT

MOHAMED ESSA N.O. THIRD APPLICANT

and

BRYTE INSURANCE COMPANY LTD. RESPONDENT

ORDER

Accordingly, I make the following order:

1. The application is dismissed.

2. The plaintiffs are liable for costs, including the costs for counsel, on scale C.

JUDGMENT

Kuzwayo AJ

Introduction

[1] This is an interlocutory application emanating from the action between the
parties. The applicants, Mohammed Abdool Satar Satar Arbee N.O., Naiem Essa
N.O. and Mohamed Essa N.O., who are the trustees of Aimessa Property Trust ("the
Trust"), lodged a claim for compensation against the respondent, Bryte Insurance
Company Ltd ("Bryte Insurance"), emanating from an insured event whereby the
insured building was damaged due to fire. The trustees are the plaintiffs in the main
action, and Bryte Insurance is the defendant. For the sake of convenience, I shall
jointly refer to the applicants as "the plaintiffs" and the respondent as " the defendant".

[2] The plaintiffs lodged an application to compel Bryte Insurance, to furnish
better and further particulars requested by the applicants for purposes of trial, as
specified in paragraphs 2.1, 2.2, 2.3, 4.1 and 4.2 of their request. The application
was opp osed by Bryte Insurance based on the following grounds:

(a) That the plaintiffs incorrectly invoked Uniform rule 30A to compel the
delivery of further particulars. It is contended that this approach is
procedurally flawed, as Uniform rule 21 contains a se lf-contained mechanism
enabling a party to compel the furnishing of particulars strictly necessary to
prepare for trial.

(b) That the issue of insurable interest is moot, in that Bryte Insurance has
admitted that the trustees had an insurable interest in t he subject property,
which constitutes an essential element of an insurance contract.
Consequently, the plaintiffs' request for further particulars concerning what
Bryte Insurance meant by its admission that the trustees represented they
had an insurabl e interest is said to be impermissible.'

(c) That Bryte Insurance has disclosed the full nature of its defence."

[3] The core.issues for determination are:

(a) Whether the applicants are entitled to bring an application to compel
the furnishing of better and further particulars in terms of Uniform rule 30A, in
light of the procedure set in terms of Uniform rule 21(4) to compel such further
particulars; and

(b) Whether the plaintiffs are entitled to further particulars sought in terms
of paragraphs 2.1, 2.2 , 2.3, 4.1 and 4.2 of the particulars of claim.

Background

[4] The Trust is the registered owner of the immovable property described as the
Remainder of Portion 44 (of 32) of Erf 5[...] Brickfield, Registration Division FT,
Province of KwaZulu -Natal ("the pr operty"), situated at 302 Felix Dlamini Road,
Overport, Durban, which is a multi -storey commercial building ("the building"). On 1
April 2021, the Trust entered into a written insurance contract with Bryte Insurance,
in terms of which Bryte Insurance agree d to indemnify the Trust for damage to the
property, including its fixtures and fittings, resulting from specified perils, including
fire. The building was insured for a sum of R14 575 000.

[5] On 10 May 2021, a fire ("the insured event") occurred at the building which
resulted in the extensive damage. As a result, the building, its fixtures and fittings
were effectively destroyed. Consequently, the building was condemned by Ethekwini
Municipality ("the Municipality") as being structurally unsafe and unfit for use and
human occupation.

[6] On 6 December 2023, the plaintiffs issued summons against Bryte Insurance,
claiming an amount of R14 573 000, allegedly being the reasonable and necessary
cost of restoring and/or reinstating the building to the state an d condition in which it
was prior to the insured event, together with the cost of replacement of the fixtures
and fittings in the building. The defendant filed its plea on 20 March 2024.

Pleadings

[7] For the sake of brevity, it is prudent to set out the paragraphs of the
particulars of claim and the defendant's plea which are the cause of this application.
In paragraphs 7.1 and 7.2 of particulars of claim, the plaintiffs pleaded that:

"7.1 The trust is and was at all material times the registered owner of the
immovable property bearing the cadastral description Remainder of Portion
44 (of 32) of Erf 5[...] Brickfield, Registration Division FT, Province of
KwaZulu -Natal and physically situa ted at 302 Felix Dlamini Road (formerly
Brickfield Road), Overport, Durban (referred to hereinafter as "the property");

7.2 The property was at all material times hereto improved by way of erection
thereon of a multi -storey commercial building ("the buildi ng").

[8] In response to the above averments, Bryte Insurance pleaded as follows:

"1. AD PARAGRAPHS 7, 7.1 AND 7.2

4.1 The defendant admits that the Trust represented to it that it was the owner
of, alternatively has an insurable interest in, "the propert y" as defined by the
plaintiff. Save as aforesaid, the defendant has no knowledge of the allegations
contained in these paragraphs and they are accordingly denied."

[9] In paragraph 14 of the particulars of claim, the plaintiffs pleaded that: "The
reasona ble and necessary cost of restoring and / or reinstating the building to its
state and condition prior to the insured event, together with the reasonable and
necessary cost of replacement of the fixtures and fittings therein / thereon, exceeds
the sum of R 14 573 000,00."

[10] In response to the above averment, Bryte Insurance pleaded as follows:

"9.1 The defendant denies the allegations contained in this paragraph.

9.2 The defendant pleads that:

9.2.1 All structural repairs to the property have been effect ed.

9.2.2 The cost of effecting the remaining repairs in order to return the
property to its condition prior to the fire, amount to R3 493 747,37.

9.2.3 The defendant tendered payment to the plaintiffs of the amount of
R3 493 747,37. The tender remains in effect."

[11] The plaintiffs took issue with the above pleas and, on 3 May 2024, sent a
request for further particulars in terms of Uniform rule 21, for purposes of preparation
for trial. The plaintiffs requested the following further particulars from B ryte Insurance:

"2. AD PARAGRAPH 4.1

2.1 Was the alleged representation referred to in this paragraph made
orally or in writing?

2.2 If in writing, the Defendant is required to furnish a copy thereof;

2.3 If the representation is alleged to have been made orally, then:

2.3.1 Who on behalf of the Trust is alleged to have made the representation?

2.3.2 Where was the representation made (the Defendant is required to
identify the location by reference to a physical address?

2.3.3 When (by reference to a date) was such alleged representation made?"

"4. AD PARAGRAPH 9

4.1 The defendant is required to furnish:

4.1.1 full detailed particulars of the nature and extent of the " structural
repairs " that are alleged to have been effected to the property and the costs
incurred by the defendant in that regard.

4.1.2 full and detailed particulars of the " remaining repair s" that are allegedly
required to return the property to its condition prior to the fire.

4.1.3 a detailed computation and breakdown of the sum of R3 493 747,37,
being the alleged cost of the remaining repairs in order to return the property
to its conditi on prior to the fire.

4.2 In relation to the structural repairs that are alleged to have been
effected, defendant is required to identify with sufficient particularity:

4.2.1 the building contractors who carried out such repairs.

4.2.2 the project manager , quantity surveyor and structural engineer/s, if any,
that were engaged by the defendant for purposes of the project."

[12] On or about 24 May 2024, Bryte Insurance replied to the plaintiffs' request
and provided the further particulars that were request ed. It will not serve any purpose
to elaborate on this reply as it was later withdrawn by Bryte Insurance for reasons
that will appear below, save to state that the plaintiffs were not satisfied with the
response and formed a view that such particulars wer e inadequate and not in
compliance with the defendant's obligation in terms of Uniform rule 21 as it failed to
furnish such further particulars as were necessary to enable them to prepare for trial.

[13] Resultantly, on 4 June 2024, the plaintiffs serve d Bryte Insurance with a new
notice in terms of Uniform rule 30A requesting the defendant to provide further
particulars (which had been requested in terms of Uniform rule 21) within ten days,
failing which an application would be made in court for an orde r compelling
compliance or alternatively striking out the defence of Bryte Insurance.

[14] In response to the plaintiffs' rule 30A notice, Bryte Insurance withdrew its
initial reply and submitted a new reply on 13 June 2024, which was within the
specified time limit. In its new reply, Bryte Insurance addressed three paragraphs
(paragraphs 2.1, 2.2 and 2.3) in respect of which the plaintiffs were seeking further
particulars. It responded as follows:

"AD PARAGRAPH 2.1

The defendant had admitted that the trus t made a representation to it. The
allegation of the representation is an allegation made by the plaintiffs and as
such is within the plaintiff's knowledge whether such representation was made
orally and in writing. The answers to 2.2 and 2.3 are therefore within the
Plaintiff's knowledge."

[15] Regarding paragraph 4 of the request for further particulars, Bryte Insurance
stated as follows:

"The plaintiff is required to prove that the property was damaged by fire and
the extent of such damage in order to p rove that it is entitled to cover under
the policy. The defendant has in this regard admitted the fire and that some
damage occurred but does not admit the extent of damage as alleged by the
plaintiff. The defendant's reasons for this are a matter for evid ence and are
not necessary for the plaintiff to prepare for trial. That said, the defendant
intends to appoint an expert and the issues raised in paragraphs 3 and 4 will
be canvassed in the expert's report to be filed in due course in accordance
with the r ules of this honourable court. In so far as the plaintiffs are have
requested information relating to the structural repairs effected by the
defendant, this information is included in the defendant's discovery affidavit
filed on 24 May 2024 and will also b e dealt with in further detail in the
defendant's expert's report to be filed in due course. The defendant's is not in
a position to provide further particularity at this time."

[16] The plaintiffs again took issue with the above particulars and considere d them
as being "deficient and inadequate". On 1 July 2024, they served the defendant with
another notice in terms of Uniform rule 30A. On 8 July 2024, the defendant sent
correspondence to the plaintiffs' attorneys in response to the said notice. Of
significance are paragraphs 6 to 9 of the said correspondence, where the defendant
stated:

"6. We now turn to the aspect of the nature and extent of damage to the
property. Our client has been open and honest to say that it will be obtaining
the opinion of an expert so as to adequately describe, not only the fire
damage to the property, but the pre -existing and/or non­ fire related structural
damage to the property. Your clients cannot abuse the court processes to
obtain information that speaks to matters of e vidence in order to satiate itself
that it does or does not have a claim. This is particularly so given the at length
correspondence that has been discovered regarding the damage and
quantum, and as you say, the centredness of these issues to the case.

7. Our client has, just like yours, the right to obtain and prepare for its
case and in these circumstances, our client is seeking the views of an expert
so as to properly make their case in light of the various technical reports and
lab tests that were prepa red in respect of this matter. Your client will not be
prejudiced by having to wait for an expert opinion since the court process
caters for such opinions and it is in the interest of fairness and justice to
obtain same on behalf of our client.

8. Our clie nt has also provided a breakdown of the costs that it intended
to compensate your clients for (and has tendered) subsequent to the
discussions around the nature and damage to the property. This breakdown
stands and will also be considered by the expert."

[17] Subsequently, the plaintiffs lodged an application in terms of Uniform rule 30A,
compelling the Bryte Insurance to provide better and further particulars. Bryte
Insurance opposed the application and, in its opposition, raised a point in limine that
it was impermissible for the application to be brought in terms of Uniform rule 30A,
where Uniform rule 21(4) provides a mechanism for the enforcement of the
particulars necessary for trial as contemplated by Uniform rule 21.

[18] For the plaintiffs, Mr Stewart submitted that the purpose of requesting further
particulars is to prevent surprises at trial, ensuring that each party is sufficiently
informed about the case the other party is going to present in order to enable his/h er
opponent to prepare his/her case. He contended that even if the particulars
requested may involve disclosure of evidence, that does not disentitle the other party
from obtaining such particulars as he/she is entitled to know what case he has t o
meet in court.

[19] He contended further that, after having requested further particulars and
received an unsatisfactory reply from Bryte Insurance, the plaintiffs decided to issue
the notice in terms of Uniform rule 30A as a "courtesy" to afford the de fendant an
opportunity to provide further and better particulars instead going straight to court.
'He explained that this approach was taken in line with the general requirement of
the now­ repealed Uniform Rule 30(5), which required a party seeking relief to first
allow the defaulting party 10 days to comply or remedy the defect, with the warning
that failure to comply would result in an application to compel compliance. Mr
Stewart submitted that this procedural requirement remains unchanged under the
current Uniform rule 30A and maintained that the plaintiffs are entitled to the
particulars they requested, as they are essential for the plaintiffs' preparation for
trial.'

[20] In his argument, Mr Stewart raised his dissatisfaction about the plea of Bryte
Insurance whereby it admitted that the Trust had represented to Bryte Insurance that
it was the owner of, or alternatively had an insurable interest in, "the property" as
defined by the plaintiffs, but then denied the further allegations contained in
paragr aphs 7, 7.1, and 7.2. According to Mr Stewart , by using the words "the Trust
represented", the defendant is effectively disputing the plaintiff's ownership of the
property.

[21] Mr Choate , for Bryte Insurance, submitted that it was impermissible for the
plaintiffs to utilise Uniform rule 30A in bringing the application compel further
particulars. He argued that Uniform rule 21 has its own mechanism to resort to in
order to compel the other party to provide better and further particulars, as provided
for by Uniform rule 21(4) and the application ought to have been brought in terms of
this rule, and not Uniform rule 30A. Therefore, the plaintiffs adopted an incorrect rule
in their application by utilising Uniform rule 30A to compel particulars.

[22] Mr Choat e further submitted that the plaintiffs are not entitled to further
particulars based on the following three reasons:

(a) That Bryte Insurance has admitted that the building sustained damages.
The plaintiffs are, therefore, not entitled to demand particularity as to what the
nature of the damages is.

(b) The plaintiffs have the onus and the evidentiary burden to prove the
nature and extent of the damages they allegedly suffered.

(c) The nature and extent of the damages are matters for evidence and
the plaintiffs cannot impermissibly constrain the case of Bryte Insurance at the
pleading stage to avoid their apparent evidentiary burden.

[23] Mr Choate contended that, on the strength of the plea, the plaintiffs have
sufficient information to prepare for trial. He argued that Bryte Insurance has made
various admissions in its plea which includes its liability for the claim and only denied
the nature and extent of damage to the structural repairs. Such admissions will
enable the plaintiffs to prepare fo r trial. Additionally, he submitted that the detailed
breakdown of the tendered amount of R3 493 747.37, as requested by the plaintiffs
in paragraph 4.1.3 of their request for further particulars, was provided to the
plaintiffs in terms of a letter dated 2 2 November 2023 that was attached to the reply
from Bryte Insurance.

[24] He further submitted that the application was premature because Bryte
Insurance had advised the plaintiffs of its intention to call an expert to deal with the
fire damage to the pro perty, and the pre -existing or non -fire related structural
damage to the property. As the expert report was still pending, it was anticipated that
it would provide the necessary details to address some particulars that were required
by the plaintiffs. He a rgued that the plaintiffs would not be prejudiced by waiting for
the expert report.

Legal Principles

[25] Uniform rule 21(2) provides as follows:

"After the close of pleadings any party may, not less than 20 days before trial,
deliver a notice requesting only such further particulars as are strictly
necessary to enable him or her to prepare for trial. Such request shall be
complied with within 10 da ys after receipt thereof."

[26] Uniform rule 21(4) provides that:

"If the party requested to furnish any particulars as aforesaid fails to deliver
them timeously or sufficiently, the party requesting the same may apply to
court for an order for their d elivery or for the dismissal of the action or the
striking out of the defence, whereupon the court may make such order as to it
seems meet."

[27] In Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH ,1 the
court referred to the case of Har dy v Hardy and stated as follows:

''The court in Hardy v Hardy explains:
'The Court must arrive at its decision by the application of principles firmly
established by a long line of authoritative decisions.
It is contended on behalf of the defendant, on the authority of Annandale v
Bates, 1956 (3) SA 549 (W), that:
'The purpose of particulars at this stage' (i.e. after pleadings have been closed)
'is to enable a party properly to prepare for trial and to prevent him being
taken by surprise by evidence of a n ature he could not reasonably anticipate;"'


1 Villa Crop Protection (Pty) Ltd v Bayer Intellectual Property GmbH [2020] ZACCP 2;
2021 SIP 1 (COP) para 11.
[28] The court proceeded and stated as follows:

"This is perhaps just another way of expressing the phrase 'to enable a party
properly to prepare for trial' used by WILLIAMSON, J., in Annandale's case,
supra.
From a perusal of the numerous authorities quoted from the Bar by both
counsel for the plaintiff and counsel for the defendant, it appears that in each
case where particulars were sought and granted, they were particulars of
allegations made in the pleadings by the party from whom such particulars
were sought ......
To grant the particulars sought would be tantamount to providing the
defendant with ammunition to further the case he has to prove. That this is not
the purpose of particulars was laid down in Bir rell v Fryer, 1926 E.D.L. 284."2

Analysis

Point in limine

[29] The defendant raised a point in limine based on the fact that Uniform rule 21
deals specifically with further particulars and the plaintiff ought to have utilized
Uniform rule 21(4) to compel better and further particulars.

[32] It may be true that the plaintiffs served the defendant with notices in terms of
Uniform rule 30A as a "courtesy". However, it is not clear why the plainti ffs had opted
to utilise a "courtesy" of issuing two formal notices in terms of Uniform rule 30A in
compelling the defendant to provide further and better particulars when Uniform rule
21(4) specifically provides a remedy for failure to comply with Uniform rule 21(2),
where a party can file an application in court without having to first issue a notice in
terms of Uniform rule 30A.3 As correctly pointed out by Mr Choate , in exercising its
"courtesy", the plaintiffs would have penned a simple letter or email to Bryte

2 Ibid.
3 Absa Bank Ltd v The Farm Klippan 490 CC 2000(2) SA 211 (W) at 215.
Insurance, instead of resorting a formal route of issuing notices in terms of Uniform
rule 30A.

[33] While the plaintiffs aver that the notices in terms of Uniform rule 30A were
merely "courtesy" reminders, it is puzzling that upon failure to se cure the expected
response from Bryte Insurance, the plaintiffs disregarded the provisions of Uniform
rules 21(2) and 21(4), to compel the defendant to provide such. Mr Stewart's
contention that what was provided by the repealed Uniform rule 30(5) has not
changed under the new Uniform rule 30A is correct. However, that does not divest
the provisions of Uniform rule 21(4). When considering the submissions made by Mr
Stewart , his submissions seem to be that Uniform rules 30A and 21(4) work
interchangeably to compel the other party to provide further particulars. I disagree
with him in this regard. It has not been specified anywhere in the rules and legal
commentary that parties have an option of utilising either two rules to compel
provision of further particu lars. I therefore uphold the special plea.

[34] For the sake of completeness, I proceed to consider whether the plaintiffs are
entitled to the particulars they are seeking, which is the other bridge that the plaintiffs
must cross. At this juncture, I turn to deal with the specific paragraphs in respect of
which the plaintiffs are seeking further and better particulars.

Paragraphs 2.1, 2.2 and 2.3 of the request

[35] The applicatio n for further particulars should be considered in the context of
pleadings. Regarding paragraphs 2.1, 2.2 and 2.3, the plaintiffs wanted to know
about the representation that Bryte Insurance contended that it was made to it that
the Trust was the owner of the building (the insured property); whether such
representation was made orally or in writing; if in writing, Bryte Insurance was
required to furnish a copy thereof and if oral, to provide the names of the
representatives that represented each party as we ll as the date and place where
such representation was made.

[36] It is common cause that, in its plea, Bryte Insurance admitted that the Trust
had represented that it was the owner of the property or had an insurable interest in
the property. That is also confirmed in the plea that was made by Bryte Insurance in
paragraph 5.2 of the plea, where it pleaded as follows:

"5.2 Without derogating the aforesaid, the defendant pleads that:

5.2.1 On or about 1 April 2021 an insurance agreement was concluded
between Aimessa Property Trust (the trust) and the defendant.

5.2.2 The insurance was reduced to writing as contained in the survey form,
policy schedule and policy wording attached hereto marked "PL1", "PL2", and
"PL3", respectively.

5.2.3 The material terms of the agreement were the following:

5.2.3.1 The property would be covered for damage to the whole or part
of the described property in the schedule, owned by the Trust or for which the
Trust is responsible, including alterations by the Trust as tenants to the
building and structure, caused by fire and other per ils as indicated, subject to,
inter alia , the terms, conditions, and warranties of the policy;"

[37] From the above, and having admitted the insured event and its liability to
compensate the plaintiffs, it is apparent that Bryte Insurance does not dispute
ownership of the Trust. There is no reason that it would have admitted the insured
event and went as far as pleading that it had effected structural repairs and tendering
the sum of R3 493 747.37 for the remaining repairs.

[38] Therefore, the plaintiffs' request for Bryte Insurance to provide particulars of
whether the agreement was in writing and who had represented each party, has no
merit and cannot be categorised as being strictly necessary for the plaintiffs to
prepare for trial. As a result, I do not agree with Mr Stewart that by using the word
"represented", the defendant is disputing ownership of the property.

Paragraphs 4.1 and 4.2 of the request

[39] In paragraph 17 of the plea, Bryte Insurance pleaded that:

"All structural repairs to the pr operty have been effected; and
The defendant tendered payment to the plaintiffs of the amount of R3 493
747.37 on 22 November 2023. The tender remains in effect."

[40] In paragraphs 4.1 and 4.2 of the request, the plaintiffs requested particulars of
the n ature and extent of the "structural repairs" that are alleged to have been
effected to the property and the costs incurred by the defendant in that regard, as
well as the name of the contractor and the remaining repairs that were alleged to be
remaining.

[41] The point regarding the nature and extent of the structural repairs was
addressed in the defendant's reply to the request for particulars as quoted in
paragraph 15 above and in the correspondence that was sent by Bryte Insurance to
the plaintiffs, as reflected in paragraph 16 above. Such structural repairs were also
confirmed on the Certificate of Completion of the structural repairs, fire protection,
fire installation system or energy usage in terms of s 14(2A) of the National Building
Regulations and Building Standards Act 103 of 1977that was filed with Ethekwini
Municipality in August 2003. The said certificate was certified and signed by the
Project Engineer who certified that structural repairs due to fire damage and the
reinstating of roof to the equivalent position it was prior to the fire had been
completed. Such certificate was issued on 3 August 2023 and was attached to the
defendant's response to further particulars and forms part of the bundle before court.

[42] No submissions were by the pl aintiffs disputing the validity of the Certificate of
Completion, and neither did they allege that such certificate was never placed before
them at any stage before the hearing. In the circumstances, I am not convinced that
the plaintiffs do not know the n ature and details of the structural repairs that were
allegedly effected on the building by Bryte Insurance. Therefore, the plaintiffs cannot
require Bryte Insurance to provide them with particulars of structural repairs that
were undertaken on the buil ding and name of the contractor that effected the repairs.
That information should be within their knowledge as they have always had full
access to the building.

[43] Furthermore, the particulars regarding the cost of the repairs that were
effected, has n o merit at this stage. If Bryte Insurance indeed repaired the building
and restored it to its pre -event state as it alleges, the amount that was spent by Bryte
Insurance in effecting such repairs bears no relevance.

[44] The plaintiffs also requested the breakdown of how the tendered sum of R3
493 747.33 was attained by the defendant. As pointed out Mr Choate , such
particulars are contained in the document that was annexed to Bryte Insurance's
reply to the request for further particulars dated 22 November 2023. The calculations
that are contained in the said documents provide detail of each item to the full
amount tendered. Clearly such information is also within the plaintiffs' knowledge.
During argument plaintiffs did not deny knowledge of the said docume nt. Even if the
plaintiffs did not receive the document on 22 November 2023, it was provided to
them in reply to their request for particulars dated 24 May 2024. That was before this
application was filed. Hence, the plaintiffs' request for the breakdown i s tantamount
to abuse of the court process.

[45] It is also crucial to note that Bryte Insurance had advised the plaintiffs that in
order for it to prepare for its case, it was seeking the views of an expert so as to
properly make their case in light of the various technical reports and laboratory t ests
that were prepared in respect of this matter. It advised the plaintiffs that they would
not be prejudiced by having to wait for the expert opinion. Seemingly, this was
unduly disregarded by the plaintiffs.

[46] I considered the cases I was referred t o by both counsel. However, none of
them dealt with the facts similar to those of the present case. In this case Bryte
Insurance admitted the occurrence of the insured event (which is the fire in this case)
and also admitted that the fire had caused damage to the property. The averment
made by Bryte Insurance that it had effected repairs to the property and its tendering
of the sum of R3 493 747.33 for the remaining damages, is a clear admission of
liability to compensate the plaintiff. The dispute only revolves around extent of
damage that befell to the property.

[47] In Visser N.O. and Others v Van Niekerk and Others ,4 the following was said:

"...It should not be allowed to become a so -called fishing expedition whereby
a party attempts to obtain all th at he can from his opponent prior trial and so
force his opponent to play all his or her cards beforehand. Trials are
adversarial by nature and no party is entitled to every piece of evidentiary
information which his opponent intends to utilise at trial."

[48] Where there has been non -compliance with a rule of court, in the first instance,
it is necessary to look to the specific rule itself to see if it contains a remedy."5

[49] In deciding whether to compel a party to provide the required further
particu lars, the court must consider only such further particulars as are strictly
necessary to prepare for trial.6 A party is only entitled to call for such further
particulars as are "strictly necessary" to enable him to prepare for trial.7 The
admissions plus the information provided by the d efendant in its reply to the plaintiffs'
request effectively highlights that the plaintiff have got necessary information to
prepare themselves for trial. Over and above that, there are various other available
pre-trial pro cedures such as providing the list of admissions requested during the
pre-trial meeting or requesting additional discovery. The defendant still has a duty to
file a notice in terms of Uniform rule 36(9) regarding the expert it intends calling. The
plaintif fs' counsel shied away from dealing with this issue in his argument and
acknowledge that there are other and/or more appropriate pre -trial procedures still
available to the plaintiffs.

[50] In the circumstances, this court is not convinced that the partic ulars that are
requested by the plaintiffs are strictly necessary for the plaintiffs to prepare for trial.
In my view, the plaintiffs request for further and better particulars is ill -conceived. The
defendant had provided sufficient particulars for the pla intiffs to prepare for trial.
Even awaiting the expert report would not have answered any question raised by the

4 Visser N.O and Others v Van Niekerk and Others [2021] ZAFSHC 187 para 23.
5 N.Z.M v Road Accident Fund [2024] ZAGPPHC 444 para 21.
6 DE van Loggerenberg & E Bertelsmann Erasmus: Superior Court Practice 2023.
7 Villa Crop Protection (Pty) Ltd above fn 1.
plaintiffs in paragraphs 4.1 and 4.2 of the requests. To request such conspicuous
particulars is just an abuse of the court process. I, the refore, conclude that the
plaintiffs have failed to make out their case and are not entitled to the relief sought in
the notice of motion.

Order

[51] In the circumstances, I make the following order:

1. The application is dismissed.

2. The plaintiffs are liable for costs on scale C, including the costs for
counsel.



KUZWAYO AJ


APPEARANCES

For the applicant. : Adv. M E Stewart
Instructed by : Norton Rose Fulbright South Africa Inc.

For the Respondent : Adv. L Choate
Instructed by : Legator McKenna Incorporated

Date of hearing : 11 March 2025
Date of Judgment : 16 April 2025