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[1] The defendants, except to the plaintiff’s particulars of claim on the ground that
they lack averments necessary to sustain a cause of action as contemplated in
Rule 23(1) of the Uniform Rules of Court. They seek an order upholding the
exception with costs and striking out the plaintiff's particulars of claim. The
plaintiff opposes the exception on the basis that valid causes of action are
adequately set out in its particulars of claim. It seeks an order dismissing the
exception.
[2] I set out the legal principles for exceptions. I then apply the legal principles with
reference to the defendants’ grounds of exception and the plaintiff’s causes of
action as pleaded and make findings. Lastly , I rule on costs and set out the
order.
[3] The legal principles for an exception are trite. An exception is a pleading 1 in
which a party objection to a pleading. It may do so, as the defendants do, on
the basis that it fails to disclose a cause of action. Exceptions are decided on
the pleadings as they stand at the time when the exception is taken. 2 The
purpose of an exception is to oppose a pleading on which a cause of action
cannot is not disclosed to save the parties the from the burden of going through
a trial to essentially arrive at the same finding.3 The defendants bear the onus
of establishing that the pleading is excipiable.4
[4] The defendants contend that in paragraphs 5 to 10 of the particulars of claim,
the plaintiff alleges that the first defendant has statutory obligations to provide
municipal services, including electricity, but fails to identify the precise legal
1 Haarhoff v Wakefield 1955 (2) SA 425E at 426G – H and Barclays National Bank Ltd v Thompson
1989 (1) SA 547A at 556J.
2 Jugwamth v Mobile Telephone Networks (Pty) Ltd [2021] (4) ALL SA 346 SCA para. 12 at 351G – H.
3 Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627 at 630.
4 Odendaal v Van Oudtshoon 1968 (3)) SA433T at 436D – E.
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provision allegedly breached. There is no merit to this contention. The plaintiff
has specified the statutory provisions that it bases it s cause of action on in
paragraphs 5, 6 and 10 of its particulars of claim.
[5] The defendants also allege that the plaintiff has pleaded a cause of action
based on contract but failed to set out the following essential particulars: the
date and manner of conclusion of the alleged contract, the specific contractual
obligations of each party and the nature and terms of the alleged breach. There
is no merit to this ground of exception. The nature of the contract concluded
between the parties is pleaded as a written application for the supply of
electricity which the plaintiff made to th e first defendant who accepted it on
behalf of the second defendant. The date the contract was concluded is also
pleaded in paragraph 11.1 of the particulars of claim. The alleged breach by the
defendants is pleaded in paragraphs 13, 14, 15, 16, 24, 30, and 35.
[6] The defendants contend that the plaintiff further pleads that the alleged breach
resulted in financial loss due to electricity disconnection but does not specify
whether such loss arises from a contractual, statutory, or delictual obligation.
There is no merit to this ground of exception. When the particulars of claim are
read as a whole, the allege loss was caused by any of the pleaded causes of
action.
[7] The defendants further allege that in paragraphs 16 to 37 of the particulars of
claim, the plaintiff references multiple court orders and alleges that the
defendants have acted in contempt of these orders. However, rather than
seeking relief for contempt of court, the defendants further contend, the Plaintiff
instead claims delictual damages. It is not for the defendants to choose a cause
of action for the plaintiff. They have not provided any legal authority for the
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proposition that the plaintiff has no cause of action in delict for failure to comply
with court orders. This contention is also inconsistent with their alleged ground
of exception that the particulars of claim do not disclose a cause of action. It is
not the defendant’s case that the particulars of claim do not disclose a cause of
action in delict.
[8] Lastly, the defendants allege that the plaintiff failed to quantify its damages.
Therefore, there is no basis upon which to assess the reasonableness of the
plaintiff’s alleged damages for the purpose of pleading. There is no basis for
this contention. The plaintiff claims damages in the amount of R3 700 000. In
paragraph 41.3 of its particulars of claim, it has set out a breakdown of this
amount. Further damages it continues to incur are pleaded at paragraph 43.
The defendants should plead to these averments.
[9] For all the above reasons, the defendants’ exception falls to be dismissed. The
plaintiff has invited the court to consider granting costs de bonis proriis against
the defendants’ attorney but failed to make out a proper case for such an order.
The fact that the defendants are organs of state and that the excipient’s attorney
and counsel boasted about drafting the exception without more, does not justify
such an order. Other than that, no re asons were advanced as to why costs
should not follow the cause.
[10] I therefore made the following order:
Order
The defendants’ exception is dismissed with costs.