REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO.: 2022-025434
In the matter between:
ABSA BANK LIMITED EXIPIENT / PLAINTIFF
and
EAST COMPANY AUTO SALES CC FIRST RESPONDENT / DEFENDANT
RIAAN NICOLAAS VILJOEN SECOND RESPONDENT / DEFENDANT
CORNE BRITS THIRD RESPONDENT / DEFENDANT
JUDGMENT:
Van der Schyff J
[1] This is an exception raised by the plaintiff against the second defendant 's
conditional counterclaim. The parties are referred to as in the action.
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 23 February 2026 E van der Schyff
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[2] The plaintiff raised an exception on the ground that the counterclaim is vague and
embarrassing. In four instances , the plaintiff avers that non-compliance with Rule
18 caused the embarrassment. Counsel for the second defendant submitted that
reliance on non-compliance with Rule 18 in an exception is misplaced, since Rule
18(12) provides that a pleading that does not comply with the provisions of the rule
is an irregular step . The opposite party shall be entitled to act in accordance with
Rule 30.
[3] The core question is whether the conduct complained of, while categorised as an
irregularity under Rule 30, also renders the counterclaim vague and embarrassing.
If the Plaintiff is unable to plead to the counterclaim and suffers serious prejudice
as a result, the exception must succeed. It is irrelevant that the plaintiff could have
invoked Rule 18(12); the availability of one procedural remedy does not exclude
another where the pleading is fundamentally defective.
The parties' averments and submissions
[4] The plaintiff's cause of action against the first defendant is premised on the first
defendant's breach of the terms of an overdraft agreement concluded on 2 October
2013 and a loan agreement concluded on 23 May 2019. The first defendant was
represented by the third defendant at the time the agreements were concluded.
[5] The plaintiff 's cause of action against the second defendant is based on a
suretyship entered into on 6 September 2005. The second defendant bound
himself as surety and co -principal debtor with the first defendant in favour of the
plaintiff for due payments of all amounts owed to the plaintiff , together with interest
and costs.
[6] The second defendant pleads that he was a member of the first defendant until 30
May 2007 . He sold his membership interest in the first defendant to the third
defendant on or about 30 May 2007. As part of the agreement concluded between
defendant on or about 30 May 2007. As part of the agreement concluded between
the first and third defendants , the third defendant undertook to do all things and
sign all documents necessary to release the second defendant as surety from all of
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the first defendant's obligations. The third defendant also agreed to step in on
behalf of the second defendant to take all necessary steps to prevent any action
against the second defendant, including prompt payment of any claim against the
second defendant, as surety or co -principal debtor, with the first defendant in the
event that he had not been released as surety. Upon the sale of the second
defendant's membership interest in the first defendant-
"…the third and/or second defendant attended upon the plaintiff for the
release of the second defendant as surety and co-principal debtor from the
obligations of the first defendant to the plaintiff . Pursuant to such
endeavours and the internal process es and documentation of the plaintiff
(which the second defendant will seek discovery of) the second defendant
was released by the plaintiff during May/June 2007 from any surety and
co-principal debtor relationship for the debts of the first defendant to the
plaintiff in terms of which the plai ntiff confirmed through its duly authorized
representatives at the said time that the second defendant was no longer
bound as a surety and co -principal debtor. The aforesaid was further
conveyed through ( sic) the representation of the authorized
representatives of the plaintiff…
The second defendant , on a further occasion during June 2007,
telephonically contacted the representatives of the plaintiff to confirm his
release as a surety and co -principal debtor for the obligations of the first
defendant to the plaintiff, as had been confirmed before, and this was
again confirmed."
[7] The second defendant then filed a conditional counterclaim to be considered in the
event that the court finds that the second defendant is liable to the plaintiff in the
amounts set out in the plaintiff 's particulars of claim in the amounts of R
467 421.00 (Claim A) and R21 112.43 (Claim B), respectively.
[8] In its particulars of claim , the second defendant pleads that pursuant to the
[8] In its particulars of claim , the second defendant pleads that pursuant to the
business relationship and facilities granted in terms thereof by the plaintiff to the
second defendant, a duty of care not to misrepresent any facts surrounding the
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alleged banking facilities and more specifically the extent, operation, and existence
of any security attached thereto, arose.
[9] With reference to the steps set out in the plea, the second defendant avers that
both he and the third defendant took steps together with the plaintiff in respect of
obtaining the release of the second defendant as aforesaid and obtained the
purported release, and was advised of same by the plaintiff not only at the time of
the sale but also again during June 2007. This, the second defendant avers,
constituted a representation that he had been released from his suretyship for the
first defendant 's obligations to the plaintiff. This representation was made in
circumstances where the second defendant was not released from the suretyship ,
which remained operative, binding, and valid on the second respondent. The
plaintiff breached its duty of care toward the second defendant and was negligent
in several aspects , among others, because the plaintiff failed and/or neglected to
make all the necessary investigations and enquiries in terms of making the said
representation to the first, second and/or thir d respondents; the plaintiff did not
take reasonable care in establishing the correctness of the representation or make
proper enquiries as to the correctness thereof; the plaintiff did not have proper
'checks and balance s" control mechanisms and procedures in place to establish
and confirm the accuracy of the representation, the plaintiff did not have proper
procedures in place to and did not ensure that its agents and/or employees were
adequately trained in respect of making the representation.
[10] As a consequence , the second defendant conducted his affairs without regard to
the suretyship as a result of which he suffered loss or damages "in the amount of
the Judgment granted by the Court in circumstances where he believed and
understood that he had been released from the said suretyship and where the
understood that he had been released from the said suretyship and where the
second defendant needs to be placed put (sic) into the position he was in before
the misrepresentation and the Judgment."
[11] The first ground of exception raised concerns a document referred to by the
second defendant in the counterclaim that was not attached to it . The second
defendant subsequently amended its counterclaim , removing any reference to
documentation. As such , this ground, as it is phrased relating to the second
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defendant's reliance on an unattached document to provide evidence of
misrepresentation, is moot.
[12] The second ground of the exception concerns the second defendant's reference to
steps taken with the second defendant , third defendant and the plaintiff to release
the second defendant as surety at the time of the sale of his membership interest
in the first defendant and again in June 2007, without stating with particularity as to
what steps were taken, and no proof of such steps are attached to the
counterclaim. The plaintiff also takes issue therewith that the second defendant
failed to state with any particularity or sufficient particularity the exact date , time,
and manner, and who allegedly represented the plaintiff when the plaintiff allegedly
released the second defendant as surety and co-principal debtor.
[13] The third ground of exception relates to the plaintiff's alleged false representations
and negligence. The plaintiff avers that the second defendant failed to state with
sufficient particularity the exact date, time , and/or manner , and who allegedly
represented the plaintiff when the alleged false representation was made.
[14] The fourth ground of exception is that the second defendant avers that he suffered
patrimonial loss and or damages but fails to quantify the damages suffered by the
alleged misrepresentations. The plaintiff submits that the second defendant cannot
rely on the plaintiff 's claims in the plaintiff 's cause of action to substantiate its own
claim. I deem it necessary to deal with this ground immediately. The nature of the
claim, as a conditional counterclaim , informs the quantification of the alleged
damages that stand to be suffered by the second defendant if the plaintiff
succeeds in its claim. I am therefore of the view that the counterclaim is sufficiently
quantified and that there is no merit in this ground of exception.
[15] The final ground of exception is that the counterclaim is self-contradictory and
[15] The final ground of exception is that the counterclaim is self-contradictory and
instituted against the wrong party. The plaintiff explains that, in paragraph 17 of the
counterclaim, the second defendant avers that the third defendant "had to do all
things necessary to obtain the release of the second defendant as surety ". The
plaintiff cannot plead to the averment that the third defendant had an obligation to
release the second defendant as surety.
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[16] In making submissions regarding the second and third grounds of exception,
counsel for the second defendant submitted that it is trite that evidence should not
form part of pleadings. In addition, counsel submitted that the plaintiff failed to
demonstrate any prejudice if the exception is not upheld. Regarding the final
ground of exception, that paragraph 17 of the counterclaim is self -contradictory,
counsel for the second defendant submitted that this complaint ignores that the
averments are extended to include reference to the plaintiff , and advice provided
by the plaintiff as well.
Discussion
[17] In dealing with the remainder of the grounds of exception, it is necessary to
emphasise the well -known principles that an overly technical approach should be
avoided when exceptions are considered, and that pleadings must be read as a
whole when an exception is considered. 1 When an exception is raised that a
pleading is vague and embarrassing, a two-fold consideration is required:2
"(i) whether the pleading lacks particularity to the extent that it is vague;
and (ii) whether the vagueness causes embarrassment of such a nature
that the excipient is prejudiced in the sense that he/she cannot plead or
properly prepare for trial."
[18] While the second defendant is correct that a defendant is not required to plead the
evidence, or facta probantia , the flip side is that the facta probanda must be
pleaded. Rule 18(6) explicitly states that a party who relies on a contract shall state
whether the contract is written or oral, and when, where, and by whom it was
concluded. In this matter , the plaintiff is expected to answer a claim that an
undertaking was given at an unspecified time by an unidentified employee of the
plaintiff, stating that the second defendant's suretyship would be terminated. The
date and location of the undertaking, and the identities of the alleged role -players,
1 Living Hands (Pty) Ltd v Ditz 2013 (2) SA 368 9GSJ) at 374G.
1 Living Hands (Pty) Ltd v Ditz 2013 (2) SA 368 9GSJ) at 374G.
2 Merb (Pty) Ltd v Matthews (2020/15069) [2021] ZAGPJHC 693 (16 November 2021) at para
[13]. Footnotes omitted.
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are not disclosed. Neither are the steps that the plaintiff 's representative allegedly
undertook stated. These voids in the counterclaim render it vague and
embarrassing. The plaintiff cannot be expected to formulate a plea and prepare
properly for trial. It will be embar rassed in conducting th e trial since it cannot
prepare to answer the second defendant 's counterclaim due to the counterclaim
being too vague.
[19] As for the ground of exception that the second defendant 's counterclaim is self -
contradictory, I find no merit in the ground. The paragraph referred to must not be
read in isolation but in the context of the counterclaim as a whole.
[20] Since the exception in its entirety revolves around the issue of the counterclaim
being vague and embarrassing, this court is not called upon to pronounce on the
question as to whether a general duty of care exists between a bank and a surety .
The issue thus falls outside the exception under consideration.
ORDER
In the result, the following order is granted:
1. The plaintiff's exception is upheld.
2. The second defendant is granted the opportunity to file an amended
counterclaim within 20 (twenty) days of this order, failing which the second
defendant's counterclaim will be regarded to be dismissed.
3. The second defendant is to pay the costs of the exception.
______________________
E van der Schyff
Judge of the High Court
Delivered: This judgment is handed down electronically by uploading it to the electronic file of
this matter on CaseLines. In the event that there is a discrepancy between the date the
judgment is signed and the date it is uploaded to CaseLines, the date the judgment is
uploaded to CaseLines is deemed to be the date that the judgment is handed down.
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For the excipient: Adv. J Minnaar
Instructed by: Hammond Pole Majola Inc.
For the second respondent: Adv. H West
Instructed by: Gishen Gilchrist Inc.
Date of the hearing: 18 February 2026
Date of judgment: 23 February 2026