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rule 23(1) notice that elicited no response. To simplify this judgment, I refer to
the excipient as “the defendant” and to the respondent as “the plaintiff”.

[2] In its particulars of claim, the plaintiff alleges that:

[2.1] On or about 11 April 2022, the plaintiff and the defendant concluded a
Close Shop/Agency Agreement (the agreement);
[2.2] The agreement is regulated by sections 25 and 26 of the Labour
Relations Act, 66 of 1995 (the LRA);
[2.3] The agreement is “invalid ab initio” (paragraph 5 of the particulars of
claim);
[2.4] Pursuant to the agreement, the plaintiff paid an amount of R546,465.00
to the defendant “ acting on the basis of the void agreement ”, which
amount was never lawfully due to the defendant (paragraph 6 of the
particulars of claim);
[2.5] As a result, the defendant was enriched to the detriment of the plaintiff.

[3] The defendant alleges that the pleaded case is vague and embarrassing
because:

[3.1] Although pleading that the agreement was invalid ab initio, the plaintiff
fails to clearly and concisely plead which statutory requirements in
sections 25 and 26 were not complied with;
[3.2] The pleading r efers to payments made by the plaintiff but does not
specify exactly which amounts were not lawfully due and payable;
[3.3] The pleading d oes not state the date, time and/or period during which
payments were made;
[3.4] The plaintiff fails to plead with sufficient particularity the grounds relied
upon for the alleged undue enrichment;
[3.5] The plaintiff f ails to state the reason why the payments should be
reimbursed.

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[4] Before dealing with the defendant’s complaint, it is appropriate to make some
pointed remarks concerning the correct approach to an exception raised on the
basis of pleadings being vague and embarrassing.

[5] A pleading that is vague and embarrassing strikes at the cause of action as a
whole. Vagueness amounting to embarrassment and embarrassment
amounting to prejudice must therefore be shown.
1

[6] Vague and embarrassing exceptions serve as a means of taking objection to
pleadings which are not sufficiently detailed or otherwise lack lucidity and thus
rendering them embarrassing and affecting the ability of the other party to plead
thereto. A pleading is not vague and embarrassing simply because the other
party cannot prepare for trial.
2 Whether a pleading is vague, is a question of
degree. The ability to plead a general denial does not mean that the pleading
is not embarrassingly vague.
3

[7] When c omparing the grounds of complaint against the correct approach to
exceptions referenced above, I am not convinced that the complaints
concerning the date, time and/or period of payments render the particulars of
claim vague and embarrassing. Further, a contextual reading of the particulars
of claim reveals that the basis upon which repayment is claimed is as a result
of an alleged void agreement. It is therefore clear that the pleading seeks to
rely on an enrichment claim. Admittedly, the pleading does not specifically refer
to either the condictio sine causa or the condictio indebiti.

[8] The complaint concerning the basis for the alleged “ invalidity” and/or ‘’voidness”
of the agreement is on a different footing.

[9] The essence of the plaintiff’s claim is that because the agreement is invalid or
void, it had no duty to make payment in terms thereof. The pleaded basis for

1 Bowman Gilfillan Inc; In re: Minister of Transport 2018 3 All SA 484 (GP).
2 Venter v Barritt; Venter v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 4 SA 639 (C).

2 Venter v Barritt; Venter v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 4 SA 639 (C).
3 Absa Bank Ltd v Boksburg Transitional Local Council 1997 (2) SA 415 (W) 421.

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invalidity / voidness is alleged to be non-compliance with sections 25 and 26 of
the LRA. The plaintiff has, however, failed to plead in what specific manner
these sections of the LRA were not complied with. In addition, neither section
25 (which deals with agency shop agreement), nor section 26 (which deals with
closed shop agreement), provide that non-compliance will result in invalidity or
voidness. Section 25(3) states that an agency shop agreement will only be
“binding” if it complies with the prescripts listed in section 25(3)(a) – (d).
Similarly, section 26(3) provides that a closed shop agreement will only be
“binding” if the requirements listed in section 26(3)(a) – (d) are satisfied. Neither
section is couched in peremptory language and the LRA contains no criminal
sanction for non-compliance.

[10] The fact that the agreement may be binding only if certain statutory provisions
are complied with, does not mean that the agreement is automatically void. It
simply means that it may not be enforceable as an independent cause of action.
In my judgment, it also does not mean that performance (payments) in terms of
the agreement must automatically be returned.

[11] At the hearing of the matter I asked the respondent’s representative, Mr Seabi,
to explain the basis of the alleged voidness with reference to the pleadings. He
directed my attention to paragraph 4.1 of the agreement, where the following is
recorded:

“
4.1.1 That at the time of signing this Agreement, the Union has members who
are representative of the majority of the Company’s employees within
the Bargaining Council as provided for in terms of section 26(2)(a) of
the Labour Relations Act.

4.1.2 A ballot was held in terms of which the aforementioned majority voted
in favour of a close shop agreement.

4.1.3 There is no provision of this Agreement or in any other agreement
between the Parties requiring membership of employees before
employment commences.

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4.1.4 All employees in the Bargaining Unit will be members of the Union.

4.1.5 The Company may not employ any person to render services in the
Bargaining Unit unless such person becomes a member of the Union
and the Bargaining Unit.

4.1.6 No amount of membership fee maybe paid to a political party as an
affiliation fee or contribution in cash or kind to a political party or a
person standing for election to any political office, or uses any
expenditure that does not advance or protect the socio-economic
interest of employees
.”

[12] These recordals appear to mirror the requirements of section 26(3) of the LRA.
Mr Seabi, however, submitted that the recordals were factually false, and that
at the time when the agreement was concluded, there was in fact no ballot, and
the defendant (a trade union) in truth represented less than 10% of the
workforce.

[13] In my judgment, the pleaded case is meaningless unless the exact basis on
which the plaintiff claims non-compliance with sections 25 and/or 26 of the LRA
is pleaded. The submissions by Mr Seabi referred to in paragraph [12] illustrate
that unless the pleading is formulated with clarity, the defendant will be caught
off guard at the trial when unexpected evidence is presented.

[14] Although an exception could, based on my aforesaid findings, have been taken
on the basis that the particulars of claim do not disclose a cause of action, the
exception before me was raised on the basis of the pleading being vague and
embarrassing, and I am obliged to rule on the case formulated by the parties. I
am, however, satisfied that the pleading is sufficiently vague to cause
embarrassment.

[15] In light of the foregoing findings, the defendant’s exception must succeed. What
remains to be considered is the question of liability for costs. In my opinion, the

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usual order in respect of costs, being that it follows the event, should be
granted. In respect of the appropriate scale, in my opinion the matter was not
very complex and an order for costs on scale A will suffice.

[16] The following order is made:

[16.1] The exception dated 8 July 2025, is upheld;
[16.2] The plaintiff’s particulars of claim are struck out;
[16.3] The plaintiff is given leave to amend its particulars of claim by filing a
notice of its intention to amend as contemplated in uniform rule 28
within a period of ten court days from the date of this order;
[16.4] The plaintiff is directed to pay the costs of the exception, such costs to
be taxed on scale A.


J VORSTER, AJ.
Acting Judge of the High Court


Date heard: 30 July 2025.
Judgment date: 1 August 2025.

Appearances:
For the excipient (defendant):
Counsel: Mr Ntshangase
Instructed by: Mapongwana Attorneys (Sandton)

For the respondent (plaintiff):
Attorney: KP Seabi & Associates
Appearance: Mr Seabi (Attorney)