REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
{GAUTENG DIVISION, PRETORIA)
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
3 February 2026
DATE SIGNATURE
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CASE NO: 33942/2022
In the matter between:
CLINTON LUKE ZAVERDINO Plaintiff /Respondent
and
FIRST NATIONAL BANK
(A Division of First National Bank Ltd) Excipient/Defendant
JUDGMENT
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(The matter was heard in open court and judgment was reserved. The judgment
was uploaded onto the electronic file of the matter on Caselines and the date of
uploading of the judgment onto CaseLines is deemed to be the date of the
judgment).
BEFORE: HOLLAND-MUTER J:
[1] Rule 23 of the Uniform Rules of Court provides for a mechanism to dispose
of a case or a portion thereof in an expeditious manner, or to protect a party
against an embarrassment which is so serious as to merit the costs even of an
exception. An exception provides a useful mechanism for weeding out cases
without legal merit. Thus, an exception founded upon the contention that a
summons discloses no cause of action, or that a plea lacks averments necessary
to sustain a defence, or regarded to contain a decision on the point of law which
will dispose of the case in whole or in part, and avoid leading unnecessary
evidence at the trial. If it does not have that effect the exception should not be
entertained. Erasmus, Superior Court Practice Vol 2 D1 Rule 23-5.
[2] In Merb (Pty} Ltd v Matthews GJ case No 2020/15069 (2021 JDR 2889 GJ)
Maier-Frawley J gave a summary of some of the general principles applicable to
exceptions with reference to Makgoka J in Living Hands (pty) Ltd v Ditz 2013 (2)
SA 368 (GSJ) at 374G:
"Before I consider the exceptions, an overview of the applicable general
principles distilled from case law is necessary:
(a) In considering an exception that a pleading does not sustain a cause of action
the court will accept, as true, the a/legations pleaded by the plaintiff to assess
whether they disclose a cause of action;
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(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 a 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 exception
is not taken for that purpose, an exciplent should make out a 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.
(!) 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 unradica/ embarrassment caused by a pleading can or
should be cured by further particulars"
[3] In view of the above the court approached the exception and the pleadings
in general as stands at present.
[4] The Plaintiff (Zaverdlno) issued action against the defendant on 24June 2022.
The Defendant (First National Bank- referred to as the "Bank"), delivered a Rule
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23(1) to remove complaint but although the Plaintiff sought to amend his
particulars of claim, the proposed amendments according to the Bank failed to
cure the complaint.
[S] The Plaintiff did not respond to the objection by the Bank against the
proposed amendments. The Bank was of the view that the Plaintiff failed to cure
and/or remedy the Bank's cause of complaint and failed to pursue his proposed
amendments, resulting in that the Bank pursued its exception. The opposed
exception was heard by Collis J and on 21 May 2024 she upheld the exception,
struck the Plaintiff's particulars of claim and afforded the Plaintiff an opportunity
amend his particular of claim. The Plaintiff was burdened with a cost order on a
party-and-party-scale (Scale C). Collis J granted a court order but no judgment
setting out why the exception was upheld, can be found on Caselines. (As far as
could be established from the electronic file of the matter on Caselines).
(6] The Plaintiff filed an amended particulars of claim on 10 September 2024 but
the Bank again held the view that the amended particulars of claim was
excipiable and afforded the Plaintiff an opportunity to remove the further causes
of complaint. The Plaintiff did not respond to the notice of complaint resulting
in the exception before this court.
[7] The Bank listed eight grounds of complaints against the amended particulars
of claim. During arguments counsel for the Bank indicated that the Bank was not
proceeding with the eight ground and resulting in counsel for the Plaintiff to
move for an order dismissing the eight ground with costs. In view of what is to
follow, this will be entertained in the whole of the judgment below.
(8) Pleadings serve a number of functions, the most important are:
* to define the issues upon which the court will be called upon to adjudicate;
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* to enable the parties to prepare for trial on the issues as defined;
* to serve as a record of the respective claims; counterclaims, admissions and
defences which may be relevant in any other or future litigation between the
parties;
* to set the parameters within which the proceedings will be conducted on
evidence admitted or excluded; and
*to determine the burden of the onus of adducing evidence and the duty to to
begin.
See Herbstein & Van Winsen, The Civil Practice of the High Courts of South
Africa 5th ed vol 1 p 559-560.
[9] The Plaintiff listed eight different accounts entered into between himself and
the Bank on different dates. It is alleged that these accounts were in writing and
that the Bank is in possession of the original and copies. It is the Bank's business
to trade with individuals. When opening an account with the Bank, it is common
knowledge that the Bank uses a proforma document containing in some
instances several pages of fine print setting put the terms and conditions of a
particular account. These pro forma documents originate from the Bank's legal
division justifying the inference that the Bank is aware of all terms and conditions
applicable on various products (accounts) and ought to know what can be
pleaded or not. In this instance is seems that the Bank is over technical in its
approach regarding the particulars of claim.
[10] The Plaintiff in the particulars of claim alleges that certain terms and
conditions are applicable on the specific account but need not refer to terms not
applicable on the dispute between the parties. The Bank ought to be able to
have the whole agreement per account to compare with the averments made in
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the particulars of claim and only if impossible to determ ine the exact terms and
conditions of each individual account raise the objection that it is unable to plead
on the particulars of claim. It is only when the particulars of claim are of such
nature that the Bank is unable to plead thereto that an exception should be
entertained. See Lockhat v Minister of the Interior 1960 (3) SA 765 (D) at 777E.
[11] When reading the particulars of claim it is clear that the plaintiff sets out
the reference to each account in such way that it is clear what the terms of the
different agreement are and what obligations rests upon each participant of the
agreement. The court also accepts that the averments made are true (as set out
above case law) that the Bank can plead to each averred account without any
further facta probantia . The alleged facta probanda are sufficient to enable the
Bank to plead thereto. The main issue on the accounts is the failure by the Bank
to deliver the IT3(b) certificates timeously to enable the plaintiff to submit such
to the Suth African Revenue Services (SARS) which according to the plaintiff is
one of the causes of the damages claim he pursues against the Bank.
[12) The various contracts are properly identified; the accounts created as a
result of the contracts are adequately particularised, the terms on which the
plaintiff relies have been pleaded and the breaches by the Bank alleged. The
court is satisfied that the averments in the particulars of claim are sufficient to
to conclude that if proven, in all probabilities be sufficient to establish a cause of
action.
[13] It is only when the particulars discloses no cause of action that the court will
uphold an exception. See Gallager Group Ltd and Another v 10 Tech
Manufacturing (Pty) Ltd 2014 (2) SA 157 in [par 19) held that the excipient has
to persuade the court upon every interpretation which pleading in question and
in particular that the facts relied upon do not disclose any cause of action to
in particular that the facts relied upon do not disclose any cause of action to
succeed with the exception. Also see Erasmus, Superior Court Practice at Bl-
1!J1.
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[14] It is only when the particulars of claim are vague, meaningless or capable of
than one meaning that an exception should be upheld. The court fails to find
that the particulars of claim as amended is embarrassing or vague and that it is
not possible for the Bank to plead upon. The Bank may make an application for
further particulars if necessary to plead but the court will not as a rule strike out
paragraphs as vague and embarrassing. The court is of the view that the
exception is rather technical and that the Bank has not made a case for the relief
sought. The exception is dismissed.
COSTS:
[15) The award of costs of exception lies within the discretion of the court
although in the absence of peculiar features, costs will normally follow success.
The court mat deviate from the ordinary rule if there are peculiar features to
differ and not award costs on success. See Herstain & Van Winsen supra p 648.
Having read all the papers and in particular the framed exception, the court is of
the view that there is no reason to deviate from the normal rule.
ORDER:
The exception is dismissed with costs to be paid by the Excipient (Bank) on a
party-and-party Scale B within the discretion of the Taxing Master.
1:!0JJ.AND-MUTER J
Y/Q/d02h
Judge of the Pretoria High Court
Matter was heard in open court on 3 November 2025
Judgment was delivered by uploading thereof onto the electronic file of the
matter in Caselines. ry 2026.
Appearances:
Excipient: Adv N Konstantinides SC
Respondent: Adv J Moller
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