IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable/Not Reportable
Case no: 22755/23
In the matter between:
SABI RIVER SHARE BLOCK (PTY) LTD Plaintiff
T/A SABI RIVER SUN RESORT
and
GOLF DATA HOLDINGS (PTY) LTD Defendant
Neutral citation: Sabi River Share Block (Pty) Ltd t/a Sabi River Sun Resort v Golf
Data Holdings (Pty) Ltd (Case no 22755/23) [2025] ZA WCHC (21
JULY 2025)
Coram: NJOKWENI AJ
Heard: 7 May 2025
Delivered: 21July 2025
Summary: exception – vague and embarrassing – lack averments necessary to
sustain a cause of action – uniform rule 30 – irregular step – noncompliance with rule
18 – attorney deposing to founding affidavit – inadmissible opinion evidence – rule
30 application – abuse of process – punitive costs.
JUDGMENT
Njokweni AJ
Introduction
[1] This is an opposed interlocutory application in terms of uniform rules 23 and
30.1 For convenience, I shall refer to the parties as cited in the main action. Thus, I
shall refer to the applicant as plaintiff and respondent as defendant.
[2] The application comprises:
(a) An exception to the plaintiff’s amended particulars of claim on the basis
that it fails to disclose a cause of action, alternatively, that the amended
particulars of claim is vague and embarrassing to the extent that the
defendant is prejudiced to plead thereto; and
(b) An application in terms of Rule 30, on the grounds that the amended
particulars of claim do not comply with the provisions of uniform rules 18(4),
18(6), and 18(10) (“the Rule 30 application”).
Factual Background
[3] To adjudicate this applica tion, it is apposite to briefly sketch out the factual
background relevant to this application, and I do this below.
[4] On 13 December 2023, the plaintiff instituted an action against the defendant
claiming damages in the amounts of R6 430 530.90 and R7 880 249.17.
1 Uniform rules, read with uniform rule 6(11). In turn, uniform rule 6(11) provides:
“Notwithstanding the aforegoing subrules, interlocutory and other applications incidental to pending
proceedings may be brought on notice supported by such affidavits as the case may require and set
down at a time assigned by the registrar or as directed by a judge.” Accordingly, in this judgment
wherever I refer to a rule or rules, unless specified otherwise, I mean the uniform rules of Court.
[5] The defendant filed an exception to the plaintiff’s particulars of claim and
simultaneously brought an application in terms of Rule 30, alleging non -compliance
with Rule 18.
[6] Pursuant to an agreement between the parties, the defendant withdrew both
the exception and the Rule 30 application, with the plaintiff tendering the defendant’s
costs. Thereafter, on 20 May 2024, the plaintiff amended its particulars of claim,
which amendment forms the subject of the current proceedings.
[7] Notably, in the amended particulars of claim, the plaintiff reduced its claims to
R2 527 058.68 and R5 353 087.68.
[8] On 4 June 2024, the defendant delivered a notice in terms of Rule 30(2)(b),
calling upon the plaintiff to remove various causes of complaint from the amended
particulars of claim, citing the plaintiff’s non -compliance with relevant provisions of
Rule 18.
[9] The plaintiff failed to respond, and on 2 July 2024, the defendant launched a
Rule 30 application seeking to have the amended particulars of claim set aside as an
irregular step.
[10] In addition, the defendant served a notice in terms of Rule 2 3(1), notifying the
plaintiff of at least six proposed exceptions. The plaintiff again failed to respond.
[11] During July 2024, the defendant delivered its notice of exception, which in
substance was the actual exception (“the Exception”), together with the Rule 30
application, and which forms the subject matter of the present proceedings. Later in
this judgment I shall deal with this notice of exception which is headed “ Defendant’s
Notice of Exception ”. The defendant contends that the amended particulars of
claim falls to be set aside either based on the exception or pursuant to the Rule 30
application.
[12] The plaintiff claims contractual damages arising from the defendant’s alleged
breach of the agreement between the parties.
Relevant Facts
Plaintiff’s claim in brief
[13] Plaintiff contends that the defendant holds itself out to be the premier golf
course and landscaping service provider in Southern Africa, supplying everything
from design and construction to maintenance, with thirty years of experi ence in the
industry being known as the ‘go -to’ brand for world class golf and landscaping
requirements.
[14] In the main action, the plaintiff claims more than R7.8 million in damages from
the defendant for breach of contract. The breaches are premised upon the defendant
having effected the contractual works using materials which were not fit and suitable
for the purpose of the works, alternatively, that the works which it effected were
defective. [My emphasis]
Amended particulars of claim
[15] The plaintiff’s case as pleaded in the amended particulars of claim (“POC”) is
summarised below.
The existence of the agreement and representation of the parties
[16] The parties concluded the agreement during a four -month period between
November 2019 and about February 2020 duly represented by Mr. Ray Jeffray of the
plaintiff and Mr. Robbie Marshall of the defendant.
The agreement was partly in writing and partly oral
[17] The agreement was partly in writing and partly oral. The relevant written parts
of the agreement are attached to the POC.
The terms of the agreement
[18] The express, alternatively tacit and further alternatively implied terms of the
agreement, whic h inter alia include the extent of the works to be effected by the
defendant at the plaintiff’s Sabi River Resort Golf Club (“ the course”), as well as the
contract sum to be paid to the defendant upon completion of the works are pleaded
in the POC. In shor t, the defendant undertook to perform certain “works” at the
course. The scope of the works were:
(a) the upgrading of all greens; and
(b) the alteration and redesign of the Course’s 18 holes. The specific
changes to each of the 18 holes are set out in detail.
Plaintiff’s performance
[19] The plaintiff paid the contract sum to the defendant after it completed the
works.
Defendant’s material breach
[20] Although the defendant duly executed the works, it nonetheless breached the
agreement on the following grounds:
(a) The materials used by the defendant were not fit for purpose; and
(b) The works performed were defective.
Damages
[21] The nature and amount of general and special contractual damages claimed
by the plaintiff are pleaded.
Demand and liability
[22] The plaintiff’s demand and the defendant’s liability is also pleaded.
Prayers
[23] The prayers sought against the defendant are succinctly pleaded.
The Exception
[24] The defendant has taken an exception to the plaintiff’s POC. The defendant’s
exception is based on a plethora of grounds, but defendant persisted only with six
grounds on the heads of argument and during oral submission at the hearing. They
are formulated on the basis that the POC failed to disclose a cause of action (“ the no
cause of action exception ”), alternatively that the POC is vague and embarrassing
(“the vague and embarrassing exception”).
[25] I shall firstly list the grounds of exception base d on the attack that the POC
lacks necessary averments to sustain a cause of action and after, list grounds of
exception on the basis that the POC is vague and embarrassing.
Defendant’s Exception (no cause of action exception)
First ground
[26] The defendant contends that the POC lacks necessary allegations to sustain
a claim for special damages because of inconsistency between pleaded terms and
written parts of the agreement attached to the POC.
Second ground
[27] The way the plaintiff has formulated it s claims for special damages is not
recognised in law as constituting valid claims for contractual damages.
Defendant’s Exception (vague and embarrassing)
Third ground
[28] The pleaded terms of the agreement are inconsistent with the written
components thereof, as contained in the annexures to the POC.
Fourth ground
[29] The POC contains contradictions regarding the defendant’s alleged
compliance with, and breach of, the agreement.
Fifth ground
[30] The POC fails to adequately link the alleged breaches of the agreement to the
defendant’s contractual obligations, specifically as defined under “the works”.
Sixth ground
[31] Certain paragraphs of the POC are internally contradictory in respect of the
issue of causation.
Legal Principles Relating to Exceptions
No cause of action exception
[32] Rule 23(1) provides that where a pleading lack averments that are necessary
to sustain an action, the opposing party may deliver an exception thereto.
[33] In McKenzie2 the following definition of “cause of action” was adopted by the
appellate division:
“… every fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the 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.” [My emphasis]
2 McKenzie v Farmers’ Co-Operative Meat Industries Limited 1922 (AD) 16, at 23.
[34] In deciding an exception, the court must take all the plaintiff’s allegations at
face value . The allegations of fact in the partic ulars of claim must be accepted as
true and correct.3 [My emphasis]
[35] In Jowell, 4 Heher J stated the following general principles relating to
pleadings in the context of exceptions:
“It is therefore incumbent upon a plaintiff only to plead a complete c ause of
action which identifies the issues upon which the plaintiff seeks to rely, and on
which evidence will be led, in intelligible and lucid form and which allows the
defendant to plead to it. The attacks mounted by the defendants that their
particulars of claim are vague, and embarrassing cannot be found on the
mere averment that they are lacking in particularity.”5
‘… a distinction must be drawn between the facta probanda, or primary factual
allegations which every plaintiff must make, and the facta probantia, which are
the secondary allegations upon which the plaintiff will rely in support of his
primary factual allegations . Generally speaking, the latter are matters for
particulars for trial and even then, are limited. For the rest, they are matters
for evidence;’6
‘The object, of course, of all pleadings is that a succinct statement of grounds
upon which a claim is made or resisted shall be set forth shortly and concisely;
where a statement is vague, it is either meaningless, or capable of more than
one meaning. It is embarrassing in that it cannot be gathered from it what
ground is relied on, and therefore it is also something which is insufficient in
law to support in whole or in part the action or defence ’7 [My emphasis]
[36] In Pretorius and Another v Transport Pension Fund and Others 8 the
following was stated:
3 Stewart v Botha 2008 (6) SA 310 (SCA) at para 4; Natal Fresh Produce Growers’ Association v
Agroserve (Pty) Ltd 1990 (4) SA 749 (N) at 755;
4 Jowell v Bramwell-Jones & Others 1998 (1) SA 836 (W).
5 At 902H.
6 At 903A-B.
7 At 899E.
4 Jowell v Bramwell-Jones & Others 1998 (1) SA 836 (W).
5 At 902H.
6 At 903A-B.
7 At 899E.
8 Pretorius and Another v Transport Pension Fund and Others 2019 (2) SA 37 (CC) at para 15.
“In deciding an exception, a court must accept all allegations of fact made in
the particulars of claim as true; may not have regard to any other extraneous
facts or documents; and may uphold the exception to the plea ding only when
the excipient has satisfied the court that the cause of action or conclusion of
law in the pleading cannot be supported on every interpretation that can
be put on the facts . The purpose of an exception is to protect litigants
against claims that are bad in law or against an embarrassment which is so
serious as to merit the costs even of an exception. It is a useful procedural
tool to weed out bad claims at an early stage, but an overly technical
approach must be avoided.” [My emphasis]
[37] In Tembani and Others v President of the Republic of South Africa and
Another9 the court held as follows:
“Whilst exceptions provide a useful mechanism ‘to weed out cases without
legal merit’, it is nonetheless necessary that they be dealt with sensibly. It is
where pleadings are so vague that it is impossible to determine the
nature of the claim or where plea dings are bad in law in that their
contents do not support a discernible and legally recognised cause of
action, that an exception is competent. The burden rests on an excipient,
who must establish that on every interpretation that can reasonably be
attached to it, the pleading is excipiable. The test is whether on all possible
readings of the facts no cause of action may be made out; it being for the
excipient to satisfy the court that the conclusion of law for which the plaintiff
contends cannot be suppor ted on every interpretation that can be put upon
the facts.” [My emphasis]
Application of the Law to Relevant Facts
[38] Having set out the relevant background facts and the applicable law on
exceptions, it is now apposite to apply the law to the facts relevant to this application.
9 Tembani and Others v President of the Republic of South Africa and Another 2023 (1) SA 432 (SCA)
at para 14.
[39] Firstly, I deal with each ground of exception and the submissions made by
both plaintiff and defendant in relation thereto. Secondly, I shall apply the op cit legal
principles to a specific ground of exception taken and decide if such a ground is
sustainable or not. If not, I shall dismiss the relevant ground of exception. Conversely,
if a ground of exception is well taken, I shall uphold it.
Defendant’s Exception (no cause of action)
First ground
[40] The POC lacks the necessary allegations to sustain a claim f or special
damages because of inconsistency between pleaded terms and written parts of the
agreement attached to the POC.
[41] In the POC, the plaintiff clearly pleads that it has suffered damages in the
amount of R7 880 145.96 and pleads the way such amo unt is made up and arrived
at. In addition, it specifically pleads that the said damages arose directly because of
the defendant’s breach, alternatively it was reasonably foreseeable and within their
contemplation that given the pleaded breach of the terms of the agreement, the
plaintiff would suffer damages pleaded in the POC.
[42] Whether the plaintiff has made out a case for special or general damages or
for both is a matter for trial court to decide after evaluating evidence led before it. At
this stage, it is not necessary for the court to make that enquiry.
[43] Rule 23(3) requires that when an exception is taken, the grounds upon which
the exception is founded shall be “ clearly and concisely ” stated. This ground of
exception falls short of that requ irement. As identified by the plaintiff, the defendant
has identified at least twenty (20) separate causes of complaint based on which it
concludes that the particulars lack averments necessary to sustain the action or are
vague and embarrassing. They are not clearly and concisely stated, with a lot of
them also containing a forward slash “/”, which indicates that the complaint is either
one or the other. However, it is not for the plaintiff or this Court to guess which one it
is. In Vermeulen v Goose Valley Investments it was held10 that it:
“Is trite law that an exception that a cause of action is not disclosed by a
pleading cannot succeed unless it be shown that ex facie the allegations
made by a plaintiff and any document upon which his or her cause of action
may be based, the claim is (not may be) bad in law”.
[44] In respect of the many complaints, the defendant has failed to identify whether
each one results in the particulars not containing averments necessary to sustain the
action for breach of con tract, or whether it results in the pleading (as a whole) being
vague and embarrassing. One is simply left guessing and that alone means this first
ground of exception is bad in law.
[45] In Merb (Pty) Ltd v Matthews 11 the following useful summary of some of the
general principles applicable to exceptions is made by Maier-Frawley J:
‘[8] These were conveniently summarised by Makgoka J in Living Hands12 as
follows:
“Before I consider the exceptions, an overview of the applicable general
principles distilled from case law is necessary:
…(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 exception is to raise a substantive question of law
which may have the effect of settling the dispute between the parties. If the
10 Vermeulen v Goose Valley Investments [2001] 3 All SA 350 (A) at paragraph [7]. See also
Jugwanth v Mobile Telephone Networks (Pty) Ltd [2021] 4 All SA 346 (SCA) at paragraph [3]; 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.
29643/2021 dated 3 August 2022) at paragraph 12.
11 Merb (Pty) Ltd v Matthe ws, unreported, GJ case no 2020/15069 dated 16 November 2021. See
also Du Toit NO v Steinhoff International Holdings (Pty) Limited and a related matter [2020] 1 All SA
142 (WCC) at paragraphs [27]–[34].
12 Living Hands (Pty) Ltd v Ditz 2013 (2) SA 368 (GSJ) at 374G. See also Shoprite Checkers (Pty) Ltd
v Premier of the Western Cape Province (unreported, WCC case no 17531/2022 dated 1 December
2023) at paragraphs [8]–[9].
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 unradical embarrassments caused by a pleading
can and should be cured by further particulars.”
[9] Exceptions are also not to be dealt with in an over -technical manner,
and as such, a court looks benevolently instead of over -critically at a
pleading.
[10] An excipient must satisfy the court that it would be seriously
prejudiced if the offending pleading were allowed to stand, and an excipient
is required to make out a very clear, strong case before the exception can
succeed.
[11] Courts have been reluctant to decide exceptions in respect of fact
bound issues.
[12] Where an exception is raised on the ground that a pleading lacks
averment necessary to sustain a cause of action, the excipient is required to
show that upon every interpretation that the pleading in question can
reasonably bear, no cause of action is disclosed . It is trite th at when pleading
a cause of action, the pleading must contain every fact which would be
necessary for the plaintiff to prove, if traversed, in order to support his right to
judgment (facta probanda). The facta probanda necessary for a complete and
properly pleaded cause of action importantly does not comprise every piece of
evidence which is necessary to prove each fact (being the facta probantia) but
every fact which is necessary to be proved…”.’
every fact which is necessary to be proved…”.’
[48] In casu, the POC contains every fact which would be ne cessary for the
plaintiff to prove, if traversed, to support its right to judgment ( facta probanda) and
evidence which is necessary to prove each fact ( being the facta probantia ). In the
result, this ground of exception must fail.
Second ground of exception
[46] The defendant contends that the plaintiff has pleaded an incorrect measure of
damages in that the plaintiff claims for loss of revenue and not for loss of profit.
[47] What is required of the plaintiff is to plead its case with sufficient particularity
to enable the defendant to plead. Whether the plaintiff is entitled to loss of revenue
or loss of profit is for the trial court to decide.
[48] An over -technical ap proach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out cases without legal
merit. 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 s elf-contained. Minor blemishes and
unradical embarrassments caused by a pleading can and should be cured by further
particulars.13
[49] In Jowell v Bramwell Jones 14 it was held that secondary allegations upon
which the plaintiff can rely in support of the primary factual allegations are matters for
particulars for trial, and even then, are limited.
[50] The plaintiff has pleaded its damages with sufficient particularity to enable the
defendant thereto to plead. In the result, this second ground of exception should fail.
[51] Before I deal with the grounds of exception based on the complaint that the
POC is vague and embarrassing, I deemed it appropriate to revert (as I do) to what I
earlier raised in the introduction to this judgment that the exception tha t was
delivered by the defendant under the heading “Notice of Exception”15.
13 See fn11 supra, Living Hands.
14 Jowell v Bramwell-Jones 1998 (1) SA 836 (W) at 898.
15 Paragraph 14 supra.
[52] In an exception based on the ground that the pleading is vague and
embarrassing, a notice of exception to remove cause of complaint is required before
delivery of the exceptio n. The heading of the Notice of Exception in terms of rule
23(1)(a)16 on the tramline should read
“Notice of exception or Notice of removal of cause of complaint ” but the
exception should be headed “Exception”. This is to avoid confusion when the
exception is adjudicated and more so, the subrule 17 says so. In casu, the
excipient delivered a notice of exception requesting the plaintiff to remove the
cause of complaints raised therein. Later, the exc ipient delivered a “Notice of
Exception” but when I read the content of the latter mentioned notice, I
realised that this was the actual exception that was delivered. I then
requested clarity from the parties as to whether I should accept the said notice
as the actual exception that was delivered as envisaged in subrule 23(1)(b).
The reply was in the affirmative, and indeed I considered it as such. I did so
because, on closer reading of the content of what was headed “ Notice of
Exception”, I realised that i n essence it was the exception that was being
delivered by the defendant. So, in the interest of justice I preferred substance
over form. I now turn to the grounds raised to attack the POC as vague and
embarrassing.
The Vague and Embarrassing Exception
Third ground
[53] The defendant contends that there is inconsistency between pleaded terms of
the agreement and written parts of the agreement in annexures to the POC. This
attack is pleaded:
16 Rule 23(1)(a) Uniform rules of Court. Also see Van Loggerenberg: Erasmus Superior Court Practice
(Vol 2) [service 20, 2022 at D1 -310C] under the heading “ May apply to the registrar to set it
down…”.
17 Subrule 23(1)(b) provides:
“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.”
(a) Paragraph 5 of the POC sets out the material express, altern atively
tacit, alternatively implied terms of the agreement.
However, the plaintiff fails to specify which of these terms were agreed to
orally and which were reduced to writing.
(b) The extent of the works described in paragraph 5.1 of the POC relating
to each of the 18 holes constitutes an almost verbatim reproduc tion of the
content contained in annexure “POC1”. Significantly, the scope of works set
out in “POC1” differs from that recorded in annexure “POC2”. A comparison of
the pleaded terms with the contents of “POC2” reveals material
inconsistencies regarding the extent of the works to be undertaken.
(c) As a result, the defendant is unable to ascertain, from the POC read
with the annexures, the precise ambit of its alleged contractual obligations. It
is accordingly submitted that the defendant is embarrassed in pleading
thereto due to the internal inconsistency and lack of clarity as to the scope of
the agreement.
Contract sum pleaded inconsistent with annexure “POC1:
[54] In paragraph 5.5 of the POC, the plaintiff alleges that the contract sum is R6
430 530.90, which is said to be made up and calculated as follows:
(a) R2 189 594.20 in respect of ‘Phase 1’, being the works in respect of
holes 10 to 18;
(b) R2 802 171.30 in respect of ‘Phase 2’, being the works in respect of
holes 1 to 9;
(c) R300 000 as a provisional sum for irrigation;
(d) R100 000 as a provisional sum for additional grassing;
(e) R200 000 as a provisional sum for any contingencies; and
(f) R838 764.90, being the Value Added Tax in respect of the aforesaid
amounts.”
[55] However, it was c ontended that the contract sum contemplated in annexure
“POC1” is the sum of R5 690 612.68 comprising of:
(a) Phase 1: first 9 holes R2 802 171.30
(b) Phase 1: second 9 holes R2 189 594.20
(c) Green Sprigs supplied by club
Total (excluding VAT) R4 991 765.51
[56] Accordingly, it was argued that there are material discrepancies between the
contract sum pleaded in the amount of R6 430 530.90 and the contract sum reflected
in annexure “POC1”. No explanation is provided for these inconsistencies. This
difficulty is further compounded by the plaintiff’s failure to plead the material facts
indicating when, where, and by whom the additional amounts — absent from
annexure “POC1”—were agreed upon.
[57] It was submitted that, considering the discrepancies between the pleaded
contract sum and the amount reflected in annexure “POC1”, the defendant is
embarrassed in pleading to paragraph 5.5 of the POC. Put differently, the defendant
is unable to discern the case it is required to meet in relation to the contract sum.
[58] It was further submitted that the POC sets out the material express,
alternatively tacit, alternatively implied terms of the agreement. However, the plaintiff
fails to specify which of these terms were agreed to orally and which were reduced to
writing.
[59] It was further submitted that the defendant is unable to ascertain, from the
POC read with the annexures, the precise ambit of its alleged contractual obligations.
In the result, it submitted that the defendant is embarrassed in pleading to the PO C
due to the internal inconsistency and lack of clarity as to the scope of the agreement.
[60] In the defendant’s counsel’s written submissions, it is argued that the extent of
the works described in the POC relating to each of the 18 holes constitutes an
almost verbatim reproduction of the content contained in annexure “POC1” [my
emphasis]. What is immediately apparent from the above is that the pleaded terms in
the POC are not the same as those contained in annexure “POC1”.
[61] The documents which consti tutes written parts of the agreement are
specifically pleaded and separated from the oral part of the agreement. There is no
inconsistency as alleged and pleaded under this ground of exception.
[62] Accordingly, this ground too must fail.
Fourth ground
[63] The defendant contends and argues that the contract sum pleaded in the
POC is inconsistent with the contract sum contemplated in annexure “POC1”.
[64] The thrust of the defendant’s complaint appears to be housed in the founding
affidavit in which the deponent, Mr. Hertzberg, asserts that in the POC, the damages
claimed are not pleaded in such a manner or with sufficient particularity to enable the
defendant to reasonably assess the quantum thereof.
[65] However, the contrary is true, in that the natu re and separate amounts of the
damages claimed by the plaintiff have been identified by it in detail in the POC. This
is so because, in the founding affidavit, M has been able to restate the nature,
amount and particulars of the damages claimed to the cent.
[66] Accordingly, if there is any discrepancy in the amount of damages claimed
(which I could not find), the defendant in its plea can either deny or confess and
avoid the allegations relating to the exact amount of damages claimed. Moreover,
the defendant can adduce evidence at trial to disprove the nature and extent of the
damages claimed by the plaintiff.
[67] Accordingly, this ground of exception is without merit and must also fail.
Fifth ground
[68] The defendant contends:
(a) In the POC, the plai ntiff alleges that “the works were duly effected by
the defendant” but in the same POC the plaintiff contends that the defendant
breached the agreement in various respects.
(b) These allegations are inherently contradictory and create uncertainty
as to w hether the works were properly performed or defective, thereby
rendering the pleading vague and embarrassing.
[69] The defendant quoted the definition of “Duly” as defined in the Oxford
Advanced Learner’s Dictionary as: (a) “ in a correct, proper or expect ed manner; and
(b) at the expected and proper time.”
[70] In the result, it is contended for the defendant that the allegations contained in
the POC are inconsistent, and the defendant is embarrassed in pleading thereto.
[71] It is trite that an exception should be dealt with sensibly and not in an over -
technical manner. The plaintiff’s claim is clearly formulated in the POC in that it is
based on breach of the agreement by the defendant. The breaches are premised
upon the defendant having effected the cont ractual works using materials which are
not fit and suitable for the purpose of the works, alternatively, that the works which it
effected were defective.
[72] Accordingly, the use of the word “duly” in the POC does not amount to an
admission that the work effected by the defendant was perfectly done. This ground
of exception is over technical and is bad in law. 18 The purpose of an exception is to
weed out c laims that should not proceed to trial because a cognisable claim or
defence has not been made out on the pleadings, or to prevent a claim or defence
being persisted with on pleadings that are vague and embarrassing. An over
technical exception defeats this purpose.
[73] Accordingly, for these reasons this ground of exception must fail.
Sixth ground of exception
18 Titan Asset Management (Pty) Ltd v Lanzerac Estate Investments (Pty) Ltd [2023] 3 All SA 589
(WCC) at paragraphs [10]–[11].
[74] The defendant under this ground of exception contends:
(a) The POC is contradictory insofar as it relates to the issue of causality.
(b) The plaintiff alleges that, “as a direct result of the defendant’s breach,”
it suffered damages - this being a formulation typically associated with general
damages that flow naturally and generally from a breach of contract.
Elsewhere in the POC plaintiff introduces a claim for both general and special
damages, asserting that the damages suffered were foreseeable and within
the contemplation of the parties at the time of contracting.
[75] In the result, it is argued for the defendant that these allegations are internally
inconsistent and create ambiguity as to the nature of the damages being claimed. As
a result, the defendant i s prejudiced in pleading thereto, as it is unable to determine
the precise case it is required to meet with respect to the issue of causality.
[76] To prove a claim for damages for breach of contract, the causation which
must be alleged is between the brea ches and the damages and not the terms of the
agreement and the damages.19
[77] The plaintiff has pleaded the way the defendant breached the agreement and
causation of damage as a result thereof in the POC. On this basis alone, this ground
of exception is bad in law.
[78] Accordingly, this sixth ground of exception must suffer the same fate as the
other five grounds of exception discussed above.
[79] For reasons given a bove, the POC contains sufficient particularity to able the
defendant to plead thereto. The POC neither lacks averments necessary to sustain a
cause of action nor is it vague and embarrassing to the extent that the defendant is
prejudiced thereby to plead thereto.
19 (see p. 118, para (d) of Harms Amler’s Precedents of Pleadings (8th Edition)).
[80] Quite to the contrary, the POC is a decent model of a pleading for a claim
founded on breach of contract.
[81] In view of the aforegoing, I find that the exception is not well taken but was
taken as a dilatory tactic to frustrate the finalisation of adjudication of the plaintiff ‘s
claim.
[82] I now turn to the rule 30 application.
Rule 30 Application
Irregular step
[83] The defendant seeks to set aside the POC as an irregular step as
contemplated by Rule 30 for failing to comply with Rules 18(4), (6) and (10).
in limine point
Plaintiff’s submissions
[84] The plaintiff has raised a point in limine, and it is apposite that I deal with it
first. This so because, it is dispositive of the rule 30 application if it is upheld by this
Court. The point raised is that there is no admissible evidence contained in the
defendant’s founding affidavit in respect of the r ule 30 application, in that the
affidavits of Robbie Marshall (who represented defendant when the partly written and
partly oral agreement upon which plaintiff’s claim is founded) were never delivered.
In the result, it is submitted for plaintiff that:
(a) No admissible evidence has been put up by Mr. Robbie Marshall
(Marshall) of the defendant (or any of its other duly authorised representatives)
in support of the defendant’s rule 30 application. Instead, the only affidavit
which has been filed in support of the application (and, most significantly, the
question of prejudice) is that of its attorney, Mr. Hertzberg.
(b) For the reasons which follow, his affidavit establishes nothing and falls
short of what is required.
(c) In the only pleading currently fi led of record, the representatives of the
plaintiff and defendant who were party to the contract in issue are identified as
being Jeffray of the plaintiff and Marshall of the defendant. Although Jeffray of
the plaintiff has deposed to the affidavits filed by the plaintiff in the application,
Marshall has chosen not to do so. Instead, all we have is the irrelevant
opinion of Mr. Hertzberg.
(d) In this regard, it is to be remembered that an affidavit filed in support of
an application is a sworn assurance o f fact known to the person who states it
(Goodwood Municipality v Rabie 1954 (2) SA 404 (C) at 406B -C), and it is
trite that allegations in support of an application can only be made by way of
admissible evidence contained in an affidavit by that person ( Swissborough
Diamond Mines (Pty) Ltd and Others v Government of the Republic of
South Africa and Others 1999 (2) SA 279 (W) at 323F-324E).
(e) And, in the present context, it is trite that proof of prejudice is a
prerequisite to success in an application t erms of rule 30(1) ( cf. Erasmus
Superior Court Practice at 30 -4 fn 7 and the authorities there cited .)
Further, the defendant must make factual allegations about the particulars of
claim which give rise to the legal assertion that they in some manner fall foul
of rule 18. That is not Mr. Hertzberg’s job. As stated by the Court in the matter
of Venmop 275 (Pty) Ltd v Cleverlad Projects (Pty) Ltd 2016 (1) SA 78 (GJ)
at para [7]:
“The role of legal representatives has two key aspects. First is the supervision,
organisation and presentation of evidence of the witnesses and secondly, the
formulation and presentation of argument in support of a litigant’s case. The
diligent observation of those roles facilitates the role of the judicial officer,
which is to arrive at a reasoned determination of the issues in dispute, in
which is to arrive at a reasoned determination of the issues in dispute, in
favour of one or other of the parties. Where practitioners neglect their roles, it
leads to the protracted conduct of the litigation in an ill-disciplined manner, the
introduction of inadmissible evidence and the confusion of fact and argument,
with the attendant increase in costs and delay in its finalisation, inimical to
both expedition and economy.” (my underlining)
(f) Clearly these principles have simply been ignored by Mr. Hertzberg
and the defendant.
(g) Therefore, to succeed with the present application, it was of critical
importance for Marshall to file the founding affidavit to explain to the Court
how the defendant has been (and will continue to be) prejudiced by
irregularities which Mr. Hertzberg alleges to exist. However, there is no such
affidavit, nor is there any such evidence.
(h) Instead, the only affidavit which has been filed is that of the defendant’s
attorney, Mr. Hertzberg. Simply put, that is not good enough. He has no
personal knowledge of the agreement which underlies the dispute, nor the
terms thereof, nor the way the agreement was implemented, and so forth.
(i) Therefore, there is no factual or legal basis upon which Mr. Hertzberg
can either complain or establish for this Court on the facts that what the
plaintiff has alleged in its particulars constitute irregulariti es which cause
prejudice to the defendant.
(j) Afterall, he is neither a representative (in the sense of him not being an
officer or director or employee of the defendant or duly appointed
representative in execution of the agreement between the plaintiff and
defendant) of the defendant nor party to the litigation. He is nothing but the
attorney who gets paid fees for the services which he renders.
(k) And, with respect, Mr. Hertzberg’s opinion as to whether the defendant
has suffered prejudice because of an alleged procedural irregularity is nothing
but irrelevant, inadmissible opinion evidence.
(l) There is little doubt that the reason why Marshall never filed the
founding affidavit is because he knows exactly what the agreement was that
resulted in th e defendant being paid R6 430 530.90 pursuant to completing
the works and does not wish to have to explain in cross -examination at trial
why these dilatory proceedings were pursued by the defendant in the first
place.
(m) In the circumstances, with the defendant’s rule 30 application premised
place.
(m) In the circumstances, with the defendant’s rule 30 application premised
solely upon the inadmissible opinion evidence of attorney Mr. Hertzberg, it is
fatally defective and falls to be dismissed on that ground alone.
Defendant’s submissions
[85] The defendant classifies the in limine poi nt basically as one that impugns the
competency and appropriateness of Mr Alon Mr. Hertzberg, as the defendant’s
attorney to have deposed to the founding affidavit in support of the rule 30
application. In reply thereto, it is submitted for the defendant that:
(a) Mr. Hertzberg is the defendant’s attorney of record.
(b) In the founding affidavit, Mr. Hertzberg avers that the facts contained
therein are true and correct and fall within his personal knowledge. He further
states that:
“As this Affidavit dea ls primarily with legal/procedural matters, it is
appropriate for me to depose hereto on behalf of Defendant.”
(c) The defendant is severely prejudiced by the POC not complying with
the rules as set out in the various eight complaints contained in the rul e 30
application.
(d) It is therefore submitted that the technical objection raised against Mr.
Hertzberg’s authority to depose to the founding affidavit is without merit.
Analysis and discussion
[86] The crisp legal point taken by the plaintiff is that the facts averred by Mr.
Hertzberg in the founding affidavit are nothing else but his opinion as to whether the
defendant has suffered prejudice because of an alleged procedural irregularity. This
is so because, according to the plaintiff, Mr. Hertzberg, a s the defendant’s attorney,
has no personal knowledge of the agreement which underlies the dispute, nor the
terms thereof, nor the way the agreement was implemented, and so forth.
[87] Therefore, it is further argued for the plaintiff that there is no fac tual or legal
basis upon which Mr. Hertzberg can neither complain nor establish for this Court on
the facts that the plaintiff has alleged in its particulars constitute irregularities which
cause prejudice to the defendant. It is argued for the plaintiff that it is nothing but
irrelevant, inadmissible opinion evidence.
[88] The defendant on one hand classifies the legal challenge to be on the
competency and appropriateness of Mr. Hertzberg, as the defendant’s attorney, to
depose to the founding affidavit, and on the other, classifies the legal challenge to be
on the authority of Mr. Hertzberg to depose to the founding affidavit. As stated above,
the attack is grounded on Mr. Hertzberg’s alleged lack of personal knowledge of the
agreement which underlies the dispute, the terms thereof and, the way the
agreement was impleme nted. Accordingly, it is evident that the defendant has
misconstrued the point in limine completely. This must be so because, the
defendant’s submissions deal with Mr. Hertzberg’s lack of authority to depose to the
founding affidavit for the defendant. It is trite that Mr. Hertzberg does not require
such authority.
[89] In the matter of PM v MM and Another ,20 the appellant sought a rescission of
judgment. The founding affidavit in support of the application was deposed to by the
appellant’s attorney who ave rred that an administrative error in her office had
resulted in the rescission application being incorrectly diarised. On appeal, the
Supreme Court of Appeal (“SCA”) held that the court a quo had conflated three
distinct concepts: (a) the legal standing of the party seeking rescission of judgment;
(b) the basis upon which an individual may depose to an affidavit; and (c) the
authority to represent a party.
[90] In respect of (a), the SCA found that the parties had the requisite locus standi.
As to (b), the Court held that a deponent to an affidavit is a witness who, under oath,
sets out facts within his or her personal knowledge. An attorney who deposes to an
affidavit is no different from any other witnes s giving oral testimony under oath or
affirmation regarding facts within their personal knowledge. Therefore, an attorney
deposing to an affidavit does not require authorisation from the client to do so.
deposing to an affidavit does not require authorisation from the client to do so.
[91] Regarding (c), the SCA found that, given the at torney’s authority to act on
behalf of the appellant, no further authorisation was required to depose to the
founding affidavit.
20 PM v MM and Another 2022 (3) SA 403 (SCA).
[92] In Masako v Masako & Another 21, a unanimous decision, per Honourable
Madam Justice Mabindla-Boqwana JA, held that the fol lowing dictum in Ganes and
Another v Telecom Namibia Ltd 22 provides a complete answer to this question.
The SCA held:
‘. . . it is irrelevant whether Hanke had been authorised to depose to the
founding affidavit. The deponent to an affidavit in motion proc eedings need
not be authorised by the party concerned to depose to the affidavit. It is the
institution of the proceedings and the prosecution thereof which must be
authorised. In the present case the proceedings were instituted and
prosecuted by a firm of attorneys purporting to act on behalf of the respondent.
In an affidavit filed together with the notice of motion a Mr Kurz stated that he
was a director in the firm of attorneys acting on behalf of the respondent and
that such firm of attorneys was duly appointed to represent the respondent.
That statement has not been challenged by the appellants. It must, therefore,
be accepted that the institution of the proceedings was duly authorised. In any
event, Rule 7 provides a procedure to be followed by a respondent who
wishes to challenge the author ity of an attorney who instituted motion
proceedings on behalf of an applicant. The appellants did not avail
themselves of the procedure so provided. (See Eskom v Soweto City Council
1992 (2) SA 703 (W) at 705C - J.)’
[93] In Masako23 , Ms. Moduka 24 alleged that her reason for deposing to the
founding affidavit was that the facts that gave rise to the need for a rescission
application lay squarely within her knowledge as the attorney who was dealing with
the matter. The SCA held:
“[11]…It stands to reason that a deponent to an affidavit is a witness who
states under oath facts that lie within her personal knowledge. She swears or
affirms to the truthfulness of such statements. She is no different from a
21 Masako v Masako & Another (Masako,) (724/2020) [2021] ZASCA 168 (3 December 2021).
21 Masako v Masako & Another (Masako,) (724/2020) [2021] ZASCA 168 (3 December 2021).
22 Ganes and Another v Telecom Namibia Ltd 2004 (3) SA 615 (SCA); (2004) 25 ILJ 995 (SCA);
[2004] 2 All SA 609 (SCA) para 19.
23 op cit, fn17 supra.
24 An attorney for the appellant (applicant in Court a quo).
witness who testifies orally, on oath or affirmation, regarding events within her
knowledge. Thus, when Ms. Moduka deposed to the founding affidavit, she
needed no authorisation from her client.
[12] As to the last issue, the appellant clearly indicated that she had given
Ms. Moduka instructions to act on her behalf in all proceedings. Ms. Moduka
stated that she was the attorney who had been instructed by the appellant to
oppose the main application and had accordingly been involved in the matter
from its inception. She went further in the replying affidavit, and said that her
mandate had never been questioned by the first respondent and that her
instructions came from ‘a person who had been affected by the order that was
granted and [she] was not acting on the frolic of [her] own . . .
[13] In any event, in terms of rule 52(2)(a)25 of the Magistrates’ Court Rules,
an attorney does not need to allege that they are authorised to act for a party.
A party wishing to challenge an attorney’s authority to represent a party may
do so in terms of the procedure outlined in that rule. The first respondent
brought no such challenge. Accordingly, there was no reason for the regional
court and the high court to find that Ms. Moduka lacked authority. For t hose
reasons, the decision of the high court falls to be set aside…”.
[94] In casu, Mr. Hertzberg stated in the founding affidavit he is the defendant’s
attorney of record, and stated further that the facts contained therein are true and
correct and fall within his personal knowledge.
[95] In the replying affidavit, Mr. Hertzberg stated that apart from the self -evident
prejudice; in considering and advising the defendant on pleading to the rule 18 non -
compliant particulars of claim, he took instructions fro m defendant regarding same
and the prejudice to it. He could depose to the founding affidavit and can still depose
to further affidavits (to the extent necessary) for the defendant in support of the rule
30 application.
30 application.
25 Rule 52(2)(a) of the Magistrates’ Court Rules provides: ‘It shall not be necessary for any person to
file a power of attorney to act, but the authority of any person act ing for a party may be challenged on
notice by the other party within 10 days of such party becoming aware that such person is so acting or
with the leave of the court on good cause shown at any time before judgment.’ This is equivalent to
Rule 7(1) in the Uniform Rules of Court.
[96] For those reasons, the point i n limine falls to be dismissed. This leads to the
determination of the various grounds upon which the POC is challenged as an
irregular step or proceeding in terms of rule 30.
Complaint A
Non-compliance with Rule 18(4) and (6)
Defendant submissions
[97] In the POC, the plaintiff pleads that the agreement relied upon was partly
written and partly oral and was allegedly concluded during the period between
November 2019 and approximately February 2020.
[98] It is contended that the precise date on which th e agreement was concluded
is not apparent ex facie the POC or from the written components of the agreement
as annexed thereto. Furthermore, the POC lacks a clear and concise statement of
the material facts upon which the plaintiff relies, as required by Ru le 18(4). In
particular, the plaintiff has failed to plead with sufficient particularity which terms of
the agreement were agreed to orally, which were reduced to writing, the dates on
which each component was agreed upon, and the sequence in which these
components came together to form the alleged complete agreement.
[99] The uncertainty regarding the date of conclusion of the agreement is material.
[100] In the result, the defendant submitted that the POC fails to comply with rule
18(4), read with rule 18(6), and that the POC constitutes an irregular step.
Plaintiff’s submissions
[101] The plaintiff’s counsel submitted that in the POC, plaintiff pleads:
(a) the agreement concluded between the parties (duly represented) was
partly oral and partly written, with the written portion being the documents
annexed thereto.
(b) As to what the documents are, is a question of fact which can only be
determined by the Court at the conclusion of the trial after it has heard all the
evidence from both Jeffray and Marsh all. For the moment, as stated above,
the Court must accept the allegations made by the plaintiff as being true and
correct in that:
(1) the particulars is the only pleading which contain allegations as to
what the documents are; and (2) it is trite that applications in terms of
rule 30 concern only irregularities of form and therefore cannot be
relied on to address matters of substance.26
(c) As to what the documents mean is a question of law which can only be
determined by the Court.27
(d) Mr. Hertzberg’s allegation in the founding affidavit that “without more”
the documents are not the written portion of the agreement is so vague that it
is simply meaningless.
(e) In the POC plaintiff pleads that the agreement was concluded by the
parties (represented by Jeffray and Marshall) between November 2019 and
February 2020 in Hazyview, Mpumalanga. Its position on the matter could not
be clearer and in making such allegations, it has complied with what is
required in rule 18(6).
(f) For those reasons, the plaintiff submitted that Complaint A should be
rejected.
[102] I am persuaded by submissions by plaintiff’s counsel that there is no merit to
complaint A and therefore this complaint falls to be dismissed.
Complaint B
Defendant’s submissions
26 Erasmus Superior Court Practice at 30-1 fn 2 and the authorities there cited.
27 Natal Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) at para [18].
[103] It is submitted for the defendant that:
(a) the damages claimed in the POC are not pleaded with sufficient
particularity to enable the defendant to reasonably assess the quantum
thereof, as required by Rule 18(10).
(b) The plaintiff has adopted an approach of alleging globular amounts
without furnishing the necessary details or breakdowns to allow the defendant
to meaningfully evaluate the basis of the claims.
(c) A bare allegation by a plaintiff regarding the quantum of da mages does
not amount to compliance with Rule 18(10), particularly in circumstances
where the plaintiff does not allege that the figures are estimates and where,
on the contrary, it appears that the damages were calculated to exact
amounts. 28
(d) It is t herefore submitted that the plaintiff’s approach falls short of the
requirements of Rule 18(10).
Plaintiff’s submissions
[104] Plaintiff inter alia submitted that:
(a) The nature and extent of damages claimed by the plaintiff have been
identified by it in detail in the POC.
(b) That much is also obvious because without much trouble, in the
founding affidavit, Mr. Hertzberg has been able to restate the nature, amount
and particulars of the damages claimed by the plaintiff to the cent.
[105] I agree with the plaintiff’s counsel that the defendant’s ability to reasonably
assess the “quantum” of the damages claimed is self - evident. In the circumstances,
this complaint B is without merit and falls to be dismissed.
Complaint C
28 Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a LH Marthinusen
1992 (4) SA 466 (W) at 467D
Prejudice
Defendant’s submissions
[106] It was submitted for th e defendant that once it is established that the POC
does not comply with Rule 18, prejudice is prima facie established. 29 In Sasol
Industries Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a LH
Marthinusen30 it was held that it is no answer for a plaintiff to say that the defendant
has sufficient information to plead. If the defendant invokes Rule 30 because he was
not given sufficient particularity the court should come to the defendant’s
assistance.31
[107] It was submitted that in casu, p rejudice suffered by the defendant is self -
evident, in that the way the POC is formulated renders it impossible for the
defendant to ascertain the case it is required to meet.
[108] For those reasons, it is submitted that the plaintiff’s non -compliance with Rule
18 undermines the very purpose of pleadings, namely, to define the issues between
the parties and to the Court, and to enable the defendant to respond meaningfully
and with clarity.
[109] In conclusion the defendant submitted that the POC fails to comply with the
provisions of Rule 18 and stands to be set aside as an irregular step in terms of Rule
30, with costs. The plaintiff should be granted leave to amend its particulars of claim
to remedy the defects.
Plaintiff’s submissions
[110] The plaintiff has pleaded the facts which underlie its claim for breach of
contract in the clearest of terms and in the manner required to sustain such a claim.
29 Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair En gineering (Pty) Ltd t/a LH Marthinusen
1992 (4) SA 466 (W) at 470H-I
30 Supra.
31 At 471A.
It is also self -evident from a reading of Mr. Hertzberg’s affidavit that the defendant
can reasonably assess the quantum of the damages claim it faces.
[111] Lastly, with prejudice being something which the defendant has to prove, and
which may be rebutted by the plaintiff (as is the case here), it is telling that in spite of
Marshall having written the letter which he did to the plaintiff on 29 September 2022
regarding the solution he proposed “to get the greens to the standard we all
intended”, it is his attorney who complains to the Court that he does not know (or
cannot understand) the cas e pleaded by the plaintiff, whereas the one who
concluded the agreement and implemented it to earn the defendant more than R6
million has elected to remain on the sidelines and say nothing.
[112] Other than the obvious flaws in the rule 30 application det ailed above, there is
clearly no prejudice suffered by the defendant because of what the plaintiff has
pleaded. This application is nothing but a transparent attempt by the defendant to
avoid having to answer allegations about the damage which it caused to the
plaintiff’s golf course.
[113] For the reasons given above it is submitted that:
(a) the plaintiff’s amended particulars are not irregular in any of the
respects alleged;
(b) the defendant has failed to establish that it will suffer substantial
prejudice or any prejudice if it is required to plead thereto;
(c) the present application is nothing but an ill -conceived, unreasonable
and vexatious attempt by the defendant to avoid or delay having to plead its
side of the story;
(d) the application should be dismissed; and
(e) the plaintiff should not be left out of pocket given that it has had to incur
unnecessary legal costs in considering both the defendant’s rule 30 notice, as
well as opposing this motion.
Conclusion
[114] Save for defendant’s subm issions apropos the point in limine raised by the
plaintiff, and for the reasons stated above in this judgment, I find that the complaints
advanced by the defendant in both the exception and the rule 30 application are
baseless and there is no prejudice to speak of. The application is nothing but a
stratagem to delay the date upon which the defendant will be obliged to file its plea.
[115] Accordingly, the application is an abuse of this Court’s process which has
resulted in the plaintiff incurring unnecess ary and significant costs. A considerable
time has been spent on this matter navigating voluminous set of papers which
resulted in a waste of scarce and stretched judicial resources which could have been
spent on matters which really deserve this Court’s attention.
Costs
[116] As for the costs, the following principles bear mentioning. As stated by Harms
DP (as he then was) in the matter of Cadac (Pty) Ltd v Weber -Stephen Products
Co.32 inter alia held “Litigation is not a game”.
[117] The purpose of a costs award is to indemnify the successful party for the
expenses it has been unjustly compelled to incur in defending litigation 33, which is
very much the case here.
[118] In the same vein, as Van Niekerk J pointed out in Gamlan Investments (Pty)
Ltd v Trilion Cape (Pty) Ltd 34 , a party must pay such costs as have been
unnecessarily incurred because of it taking wholly unnecessary steps.
[119] An attorney and client cos ts award is where the court wishes to strongly
express its displeasure about the conduct of the losing party and, by making such an
award, it ensures that the successful party is indemnified in respect of all the
reasonable costs of the litigation.35
32 Cadac (Pty) Ltd v Weber-Stephen Products Co. 2011 (3) SA 570 (SCA) para [10].
33 Texas Co (SA) Ltd v Cape Town Municipality 1926 AD 467 at 488.
34 Gamlan Investments (Pty) Ltd v Trilion Cape (Pty) Ltd 1996 (3) SA 692 (C) at 701C.
34 Gamlan Investments (Pty) Ltd v Trilion Cape (Pty) Ltd 1996 (3) SA 692 (C) at 701C.
35 Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) at 22B-C.
Accordingly, I make the following order.
1. The plaintiff’s point in limine is dismissed.
2. The exception is dismissed.
3. The rule 30 application is dismissed.
4. The defendant is directed to file its plea to the amen ded plaintiff’s
particulars of claim within 10 days of the granting of this order.
5. The defendant, shall pay plaintiff’s costs (regarding both the exception
and rule 30 application) except the costs relating to the point in limine, on the
High Court Scal e as between attorney and client scale, with such costs to
include the costs of counsel as taxed on scale C.
NJOKWENI AJ
ACTING JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff: Adv RJ Howie
Instructed by: David Shapiro & Associates
For the defendant: Adv JW Jonker
Instructed by: AD Mr. Hertzberg Attorneys