JUDGMENT
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1
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : 039358/2025
DATE : 07 -05 -2026
In the matter between
DISCOVERY INSURE LTD Applicant 10
and
MANDISA CHARLENE THEKO -KHITSANE Respondent
J U D G M E N T
GREYLING , J:
In the matter of Discovery as plaintiff and Ms Khitsane 20
as the defendant, I have heard an application based on Rule
23 (1) concerning an exception that was raised against the
Particulars of Claim. The exception is framed as
follows, paragraph 1 of the exception under the heading:
"Lack of averments necessary to sustain
action.”
It is stated as follows:
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE : NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED : YES
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“1. Lack of Averments Necessary to
Sustain Action
1.1 The plaintiff's Particulars of Claim
purport to found a cause of action based
on an alleged breach of an agreement
(being the maternity agreement ’D2’ read
with the acknowledgement of debt, ‘D3 ’)
between the Plaintiff and the Defendant :
1.2 The Plaintiff has failed to plead any
specific averments identifying : 10
a) the material terms of the agreement
allegedly breached ;
b) the n ature and extent of the alleged
breach by the Defendant; and
c) how such the alleged breach caused
the Plaintiff's claim to damages or
entitlement to relief.”
1.3 In the absence of such averments, the
Plaintiff ’s Particulars of Claim fail to disclose a
caus e of action , as the Plaintiff has not 20
established a legally cognisable basis for the relief
sought.
2. "Too vague and embarrassing:
2.1 The Plaintiff's Particulars of Claim are
vague and embarrassing in that they
JUDGMENT
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fail to provide sufficient particular it y
to enable the Defendant to
reasonably understand the case it is
required to meet.
2.2 The lack or specific allegations
regarding the terms of the
agreement and the alleged breach
thereof prejudices the Defendant in
preparing a proper defence.”
3. "The conclusion: 10
3.1 By reason of the
aforementioned the Plaintiff's
Particulars of Claim are defective in
that they :
a) failed to disclose a c au se of action
and/or vague and embarrassing
thereby prejudicing the Defendant.”
WHEREFORE the Defendant prays for an
order:
1. Upholding the exception and 20
striking out the Plaintiff’s
Particulars of Claim. "
2. Ordering the Plaintiff to pay the
costs of this exception including the
costs of counsel .
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3. Granting such further and/or
alternative relief as the court may
deem fit. ”
There is a marked difference between striking out the
Particulars of Claim and dismissing of an action.
Striking out a claim always means that the plaintiff is
entitled to file a further Particulars of Claim whilst dismissing
the action means that the list between the parties has been
finalised. 10
Be that as it may, the court, through reading of the
Plaintiff's Particulars of Claim , understand s same and can by
no reason be vague and embarrassing.
I referred counsel for the excipient to Rademeyer v
Ferreira 2025 (2) SA 2 (CC) 25 October 2024, paragraph
68 , where the Constitutional Court stated:
"It is necessary to restate some well -
established legal principles. First, it
bears emphasis that a debt is the
correlative of a right of action, when one 20
is extinguished, so, too, is the other. It is
important to draw a clear distinction
between the contractual remedies of
specific performance and cancellation and
concomitant damages. In the case of the