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(1) | REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES /NO WA
30 July 2025 J
ZOE
Case No: 079472/2024
In the matter between:
SIPHO SHOBA Plaintiff/Respondent
and
SINDISO MALAKU Defendant/Excipient
Coram: Groenewald, RJ (AJ)
Heard on: 28 July 2025
Delivered: 30 July 2025 - This judgment was handed down electronically by
uploading to Caselines.
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JUDGMENT
GROENEWALD AJ
Introduction:
[1] This is an opposed exception. The Plaintiff called upon the Defendant, in
terms of the provisions of Uniform Rule of Court 23(1), to remove the causes
of causes of complaint set out in that notice.
[2] In reaction to the Rule 23(1) notice the Plaintiff delivered a document styled
as being a “reply to Defendant’s Rule 23 notice’ wherein the Plaintiff
proceeded to deliver an ad seriatim response to the Rule 23(1) notice and
alluding to the intention to amend the particulars of claim.
[3] Although the amended particulars of claim appears in section 006 of the
Case Lines file folder no Rule 28 notice was delivered in respect of the
amended particulars of claim. The Plaintiff simply delivered the amended
particulars of claim without complying with the provisions of Rule 28. This
was raised during argument, and counsel on behalf of both parties indicated
in turn that, although Rule 28 was not complied with, the parties accepted
that the amendment had been properly effected, that the amended
particulars of claim has been accepted and the excipient/ defendant does not
challenge the amendment.
[4] Notwithstanding the somewhat unusual course adopted by the parties, it
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appears common cause that the Defendant accepted the amended
particulars of claim and proceeded, consequent upon the delivery of the
amended particulars of claim, to deliver a formal exception.
[5] Where the Rule 23(1) notice alluded to averments being vague and
embarrassing, the exception itself appears to be premised solely upon the
basis that the amended particulars of claim lacks averments necessary to
sustain a cause of action and/or that the Plaintiffs claim and/or claims are
bad in law. The initial grounds of objection in the Rule 23(1) notice was
therefore not persisted with.
[6] Before dealing with the specific grounds of exception it is prudent to note
that the Plaintiff proceeded to deliver an answering affidavit in respect of the
exception opposing the same. In this answering affidavit the Plaintiff deals
with what it refers to as “grounds for dismissing the exception application’.
[7] Counsel for the Plaintiff also attached a document as annexure “B” to his
heads of argument, which appears to be correspondence directed by the
Defendant seeking a settlement in the form of a monetary payment to the
Defendant. This document does not appear as part of the pleadings and
cannot be relied upon by the Plaintiff. The attachment of the document was
ill-considered and inappropriate. | shall return to this document below within
the context of the argument advanced on behalf of the Plaintiff.
[8] In determining an exception, the Court held in Trope v South African
Reserve Bank and another and two other cases 1992 (3) SA 208 (T) at
page 217 that the ultimate test must still be whether the pleading complies
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