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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST HIGH COURT MAHIKENG
In the matter between:
H C PRETORIUS
and
THEO VAN NIEKERK FINANCIAL
SERVICE CC
THEO VAN NIEKERK
Date considered: 31 October 2025
CASE NO: 3921/2024
APPLICANT
FIRST RESPONDENT
SECOND RESPONDENT
Delivered: This judgment was handed down electronically by circulation to the parties'
representatives via email. The date and time for hand-do wn of the judgment is deemed to be
14:00 on 30 January 2026.
JUDGEMENT
TSAUTSEAJ
Introduction
[ 1] This j udgment concerns two exceptions noted by the Defendants in terms
of Rule 23 of the Uniform Rules of Court against the Plaintiff 's amended
particulars of claim. The exceptions were enrolled and argued together, as
they rest on substantially overlapping grounds.
[2] The Defendants contend that the amended particulars are excipiable on the
basis that they are vague and embarrassing, contrary to Rule 18, and
alternat ively that they fail to disclose a cause of action. The Plaintiff
opposes both exceptions.
[3] The Plaintiff's claim anses ex contractu. He alleges that the First
Defendant , acting as his insurance broker, breached its contract ual duty to
exercise reasonable care, skill, and diligence in procuring and maintaining
appropriate insurance cover for immovable property later damaged by fire,
resulting in under-indemn ification.
[ 4] The Plaintiff further seeks to hold the Second Defendant personally liable
in terms of section 63 of the Close Corporations Act 69 of 1984 ("the Act").
Procedural background
[5] The defendant filed an initial notice of exception, to which the Plaintiff
amended his particulars of claim in an attempt to cure the alleged defects.
The Defendants nonetheless delivered two further notices of exception,
dated 30 January 2025 and 25 February 2025 respectively. These are the
exceptions presently before this Court.
The governing legal principles
[6] It is trite that an exception is concerned with the legal sufficiency of a
pleading , not with the truth of the allegations contained therein . For
purposes of exception , the Court must accept the pleaded facts as correct
and determine whether, on every reasonable interpretation , the pleading
fails to disclose a cause of action. The onus rests on the excipient to
demonstrate that this is so, it nevertheless lacks a cognisable cause of
action.
[7] In Trope v South African Reserve Bank and Another 1993 (3) SA 264 (A)
and Lewis v Oneanate (Pty) Ltd 192 (4) SA 811 (A), the Appellate Division
emphasised that a plaintiff is required to plead the material facts on which
the claim rests with sufficient particularity to enable the defendant
reasonably to understand the case to be met and to plead thereto; the onus
rests on the excipient to show that, on any reasonable reading, no cause of
action is disclosed.
[8] The purpose of an exception is to weed out pleadings that are bad in law
so as to avoid unnecessary evidence and the expense of a trial where no
sustainable claim or defence exists. ln Jowell v Bramw ell-Jones and Others
1998 (1) SA 836 (W) at 8980- 1 Heher J cited with approval the
well-known passage from Jacob and Goldrein, which explains that parties
and the Court are bound by the pleadings; the Court may not wander
beyond the four comers of the pleaded case or decide issues not raised, lest
it descend into speculation and adjudicate on matters not properly placed
in dispute. An exception is thus not a vehicle to test the probabilities, to
resolve factual disputes , or to re-cast a party 's case.
[9] This approach has been consistently applied in more recent High Court
jurisprudence, including Masakhane Mining Supply and Construction CC
t/a Masakhane Megawatt Services v FPM Business Solutions (Pty) Ltd t/a
FPM Security Services [2025] ZANWHC 190, where the court refused to
entertain complaints that went beyond the pleaded issues when
adjudicating an exception.
[ 1 0] Rule 18( 4) requires every pleading to contain "a clear and concise
statement of the material facts" upon which the pleader relies, with
sufficient particularity to enable the opposite party to reply; it does not
demand evidential detail or argument.
[11] In McKenzie v Farmers ' Co-operative Meat Industries Ltd 1922 AD 16 at
23, Innes CJ explained that a cause of action comprises every fact which it
would be necessary for the plaintiff to prove, if traversed, in order to
support the right to judgment; it does not include every piece of evidence
required to prove each fact. The distinction is between the essential facta
probanda, which must be pleaded, and the facta probantia, which are
matters for proof at trial. Anything less than the former leaves a claim
without a legal foundation; anything more tends to obscure the real issues
rather than clarify them.
[ 12] Broadly speaking, two primary species of exception are recognised
(10.1] an exception that a pleading fails to disclose a cause of action (or
defence), and
(10.2] an exception that it is vague and embarrassing . In relation to the
latter, the vagueness must strike at the root of the cause of action
and result in real prejudice.
(13] In Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at
298F-H the Court held that an exception of vagueness and embarrassment
will only be upheld if the excipient shows that the defective pleading
causes serious prejudice to the ability to plead; pleadings must state facts
rather than bare conclusions, but exceptions are not intended to resolve
factual disputes. Quinlan v MacGregor 1960 (4) SA 383 (D) at 393D-E
reinforces that only the material or essential facts founding the cause of
action need be pleaded ; supportive evidential detail should ordinarily be
left to trial, as its inclusion may burden and confuse the issues.
[ 14] The thread running through McKenzie, Quinlan and related authority is
that pleadings are instruments of definition , not persuasion therefore they
must define with precision the issues that fall for adjudication, so that the
parties and the Court engage on clearly delimited ground. The burden on
an excipient is therefore a heavy one: unless the pleading is bad in law on
every reasonable construction , the exception must fail.
(15] This "cautious " approach has been re-affirmed in the North West Division
in, inter alia, Estabiz (Pty) Ltd v Starflash (Pty) Ltd (Appeal) (CIV APP
MG32/24) ZANWHC 108 (26 June 2025), where the court stressed that
exceptions are a " blunt instrument " and should not be used to dispose of
disputes that can properly be ventilated at trial.
The amended particulars of claim
[ 16] The Plaintiff's amended particulars of claim, m summary, plead the
following material facts:
• the existence of an insurance relationship between the Plaintiff and
the First Defendant, acting as broker, and the scope of the latter's
mandate;
• the express and/or tacit obligations resting on the First Defendant to
exercise due care, skill and diligence in procuring appropriate cover;
• a recommendation by the First Defendant that the Plaintiff transfer
his insurance to Santam Limited and the steps taken pursuant
thereto ;
• an etToneous or inadequate description of the insured property in the
policy schedule;
• a consequent partial repudiation or reduced indemnity by the insurer
following a fire; and
• the quantifiable shortfall m indemnity said to constitute the
Plaintiff's loss.
These are the kind of primary facts that, if proved , are capable of sustaining
a contractual claim in law.
[ 1 7] The pleadin g out! ines the reasons why the Plaintiff seeks to hold the
Second Defendant personally liable under section 63 of the Act. It is
alleged that the First Defendant conducted business without including the
mandatory "CC" suffix, and that the Second Defendant knowingly allowed
this omission. As a result , the Plaintiff entered into a contract under the
mistaken belief that he was dealing with an entity that had limited liability.
According to the legal precedents concerning sections 63 to 65 of the Act,
if these allegations are proven, they could potentially establish the personal
liability of the Second Defendant.
First exception - the alleged failure to disclose a cause of action
[ l 8] The Defendants ' first exception is that the amended particulars do not
adequately allege breach, causation and damages, and therefore fail to
disclose a cause of action.
[19] On a proper reading of the particulars of claim as set out in Para [13], the
Plaintiff has pleaded all the essential contractual elements that is
• the conclusion of a contract or mandate with the First Defendant;
• the duties of care, skill and diligence arising therefrom;
• the factual conduct said to constitute breach (including the defective
description of the property and the procurement of inadequate
cover);
• the causal nexus between that breach and the under-indemnification
by the insurer; and the amount of the alleged loss.
[20] Jn Doyle v Fleet Motors (Pty) Ltd 1971 (3) SA 760 (A) the Appellate
Division confirmed that, for purposes of an exception, the question is not
whether the claim is likely to succeed but whether, accepting the
allegations as true, they disclose a legally sustainab le cause of action.
[21] This approach was recently echoed in Masakhane Mining Supply and
Construction CC t/a Masakhane Megawatt Services, where the court held
that even where a pleaded case may ultimately prove weak, it will survive
an exception if the essential elements of a cause of action are present.
[22] The present inquiry focuses on the legal sufficiency of the pleaded case,
rather than its evidential strength. At the appropriate time, the trial court
must determine whether the First Defendant acted negligently or breached
its mandate , whether the insurer's position was justified, and whether the
amount of loss can be proven. These are all issues that should be resolved
based on the evidence, rather than at the exception stage.
[23] Read sensibly, and as a whole, the amended particulars of claim clearly
admit of evidence which, if led and accepted, would support the Plaintiff 's
claim in contract. The first exception therefore , cannot be upheld.
Section 63 of the Close Corporations Act
[24] The Second Defendant contends that section 63 of the Act finds no
application because the Plaintiff knew, or ought to have known, that he was
dealing with a close corporation. This argument misconceives the nature of
an exception.
[25] The Plaintiff pleads that the First Defendant conducted business without
using the required "CC" suffix, and that the Second Defendant knowingly
allowed or permitted this omission. If we accept these claims as true,
Section 63 clearly states that personal liability can arise when the name of
a close corporation is used without the necessary abbreviation, leading to
confusion for a third party, as long as a member authorised or allowed this
om1ss10n.
[26] In Bophuthatswana National Bank Ltd v Killarney Auto Centre (Pty) Ltd
1999 (1) SA 307 (B) the Court stressed that a pleading must be read as a
whole and in a common-sense way, avoiding an overly technical approach
and if, on a fair reading, the essential averments necessary to sustain the
cause of action are present, the exception must fail.
[27] Whether those allegations can ultimately be proved is a matter for trial. At
this stage, the claim against the Second Defendant is legally sustainable.
Second exception: alleged vagueness and embarrassment
[28] The second exception substantially reprises the complaints advanced under
the first, recast as allegations of vagueness and embarrassment.
[29] Read as a whole and construed sensibly, the amended particulars of claim
set out a coherent and intelligible case, sufficient to inform the Defendants
of the issues they are required to meet.
[30] In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA 2006 (1) SA 461 (SCA) para 3, the Supreme Court of Appeal
reaffirmed that an exception must show that on every reasonable
interpretation of the pleading no cause of action or defence is disclosed;
the Court must accept the pleaded facts as true and resist the temptation to
dispose of disputes at the threshold where a reasonably arguable, legally
sustainable case can be discerned.
[31] The same disciplined approach is evident in Estabiz (Pty) Ltd v Starflash
(Pty) Ltd, (CIV APP MG32/24) [2025] ZANWHC 108 where the Court
emphasised that exceptions are not to be deployed as tactical devices to
secure premature pronouncements on the merits.
[32] Minor ambiguities, imperfections of drafting or a lack of evidential detail
do not amount to vagueness and embarrassment going to the root of the
cause of action or resulting in serious prejudice. Where a party requires
greater particularity for purposes of trial preparation , the Uniform Rules
make provision for further particulars and discovery; exceptions are not
intended to serve as occasions for word-games or to police technical
compliance with Rule 18 in the absence of real prejudice
[33] In Burger N. 0 v Nel and Others (1744/2024) [2024] ZANWHC 217 the
court argued that the lack of detail may justify a request for particulars , but
does not, without more, render a pleading excipiable if the essential
averments of a cause of action are present.
Conclusion
[34] It is my conclusion that the Defendants have failed to establish that the
Plaintiff's amended particulars of claim, when read holistically and
construed in a sensible and benevolent manner, do not disclose a cause of
action or are so vague and embarrassing as to occasion serious prejudice.
The exceptions they advance are aimed not at the legal sufficiency of the
pleading, but at the level of factual detail and evidential substantiation,
issues which fall to be determined at trial rather than on exception. In
substance , the excipients seek to deploy Rule 23 as a vehicle to challenge
the factual merits and anticipated proof of the Plaintiff' s case, rather than
to demonstrate an absence of a sustainable cause of action or true prejudice
arising from vagueness, which is contrary to the authorities cited above.
[35] It follows that the exceptions cannot be sustained and must be dismissed.
Order:
Jn the result, I make the following order
I . The first and second exceptions are dismissed.
2. The Defendants are ordered, jointly and severally, the one paying the
other to be absolved, to pay the costs of the exception proceedings ,
such costs to include the costs of counsel where so employed.
3. The Defendants are directed to deliver their plea within ten(] 0) days
of the date of this order.
Tsautse AJ
Judg e of the 1-Jigh Court
Counsel for Applicant : N MARSHALL
c/o LABUSCHAGNE ATTORNEYS
19 CONSTANTIA DRIVE
RIVIERA PARK
MAHIKENG
REF:0698
Counsel for Respondent : A B ROSSOUW SC
c/o VAN ROOYEN TLHAPI WESSELS INC
09 PROCTOR AVENUE
MAHIKENG
REF: PAU14/0008/SAS