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[2026] ZAGPPHC 539
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No 1 Online Solutions (Pty) Ltd v Heavyweight Capital Carriers (Pty) Ltd and Another (2025-051490) [2026] ZAGPPHC 539 (29 May 2026)
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REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 2025-051490
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: YES
DATE: 29 MAY 2026
SIGNATURE OF JUDGE:
In
the matter between:
NO
1 ONLINE SOLUTIONS (PTY) LTD
Plaintiff
and
HEAVYWEIGHT
CAPITAL CARRIERS (PTY) LTD
1
st
Defendant
ANDRE
HUMAN
2
nd
Defendant
JUDGMENT
D van den Bogert AJ
[1]
The first and second defendants, as the
excipients, take exception to the plaintiff’s amended
particulars of claim. The defendants
contend that the amended
particulars of claim, dated 11 July 2025, do not disclose a cause of
action, alternatively that it is
vague and embarrassing.
[2]
During argument, at the hearing of this
exception, counsel for the defendants made the proper concession that
the amended particulars
of claim do, in fact, disclose a cause of
action. There can be no doubt that it does disclose a cause of
action. The exception
therefore hinges on the notion that the amended
pleading is vague and embarrassing.
[3]
The principles applicable to the
adjudication of exceptions are established. These requirements are
not necessary to be rehearsed.
In short, however, the general test in
an exception taken on the basis that the pleading is vague and
embarrassing are set out
in the case of
Trope
v South African Reserve Bank
1992 (3)
SA 208
(T), quoted by the defendants themselves, where the court says
at page 211 A – E:
“
An
exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such
a nature
that the excipient is prejudiced (Quinlan v MacGregor
1960 (4) SA 383
(D) at 393 E – H). As to whether there is prejudice, the
ability of the excipient to produce an exception-proof plea is not
the only, nor indeed the most important, test – see the remarks
of Conradie J in Levitan v Newhaven Holiday Enterprises CC
1991 (2)
SA 297
(C) at 298 G – H. If that were the only test, the object
of pleadings to enable parties to come to trial prepared to meet
each
others case and not to be taken by surprise may be well defeated.
Thus, it may be
possible to plead to particulars of claim which can be read in any
one of a number of ways by simply denying the
allegations made;
likewise to a pleading which leaves one guessing as to its actual
meaning. Yet, there can be no doubt that such
a pleading is
excipiable as being vague and embarrassing – see Parow Lands
(Pty) Ltd v Scheider
1952 (1) SA 150
(SWA) at 152 F – G and the
authorities there cited.
It
follows that averments in the pleading which are contradictory and
which are not pleaded in the alternative are patently vague
and
embarrassing; one can be left guessing as to the actual meaning (if
any) conveyed by the pleading.
”
[4]
To found a proper exception, the pleading
must therefore leave one guessing as to its actual meaning. The
excipient must establish
that the particulars of claim are so vague
that it causes embarrassment. Embarrassment that it makes it
impossible to formulate
a plea in defence, because if the defendant
knows what case it has to meet, there is no prejudice.
[5]
This ought to be read with the case of
Absa
Bank Ltd v Boksburg Transitional Local Council (Government of the
Republic of South Africa, third party)
1997 (2) SA 415
(W) at p422 B - D:
“…
it
seems to me that the third party can fairly be expected to plead to
the third party notice as it stands at the moment. It can
respond
adequately even if a hypothetical outsider happens to be relatively
disadvantaged. It may be that, as the exception claims,
the third
party is unable to establish “precisely” what case it is
called upon to meet. But it knows “adequately”
what the
plaintiff’s case is. It can understand the plaintiff’s
case, and it is able to take instructions from the
client and to
record a meaningful response to it.
”
[6]
It is threshold to convince a court that a
pleading is excipiable, because it is vague and embarrassing is
therefore high. If a
defendant knows adequately (not with exact
precision) what case it must meet, it must plead. This brings me to
the particulars
of claim and the defendants’ objection.
[7]
The plaintiff pleads inter alia the
following:
7.1.
that on 20 February 2024 and at Pretoria,
the first defendant represented by the second defendant, in his
capacity as director,
entered into a written agreement with the
plaintiff, who was represented by a Mr Bester. In terms of that
agreement the plaintiff
rendered services to the first defendant at
its special instance and request.
7.2.
a copy of the credit application form
incorporating the terms and conditions of the trade between the
parties, being the written
agreement, is then attached as “B1”
to “B9” to the particulars. The plaintiff in its pleading
requests
that the terms and conditions of “B1” to “B9
”
be read as if specifically incorporated in the
particulars.
7.3.
the plaintiff pleads that the terms of the
agreement include the following:
7.3.1.
the first defendant would from time to time
engage the services of the plaintiff. The plaintiff would render
freight and delivery
services to the first defendant upon the terms
and conditions as agreed upon between the parties.
(
this is one of the
grounds that the defendant says makes the pleading vague, because it
alleges that such terms and conditions are
not pleaded
).
7.3.2.
the services include but are not limited to
the transportation of goods by the plaintiff at the first defendant’s
request,
from locations nominated by it to destinations specified by
it, in accordance with instructions issued by the first defendant to
the plaintiff.
7.3.3.
each instance of a service rendered is then
recorded in a tax invoice accompanied by a delivery note signed or
stamped by the first
defendant or its agents.
7.3.4.
payment in respect of services rendered by
the plaintiff to the first defendant must be made within 30 days
after statement.
7.3.5.
the interest rate on unpaid amounts shall
be the maximum interest rate allowed in terms of the Usury Act, 1968.
7.3.6.
the chosen
domicilium
of the first defendant is pleaded.
7.3.7.
it is pleaded that the amounts reflected on
the monthly statements issued by the plaintiff would be deemed to be
correct, unless
objected to in writing within 7 days of the issuing
of the statement.
[8]
The terms as set out in paragraphs 7.3.4 to
7.3.7 above, as pleaded, make specific reference to clauses in the
agreement. Paragraphs
7.3.1 to 7.3.3 do not refer to specific clauses
in the written agreement. According to the defendants, this is also
problematic.
When I asked counsel for the defendants whether those
paragraphs conflict with the terms of the written agreement, he said
that
they did not. As such, in my view, that objection is of no
consequence.
[9]
It is then pleaded that the plaintiff
complied with the agreement and the defendant breached the agreement
in that it failed to
pay for the services rendered. As proof of the
outstanding balance due, the plaintiff attaches unpaid invoices and
delivery notes
as annexures “D1” up to “D948”.
[10]
I quote the relevant parts of the
exception:
“
3
The plaintiff then in paragraph 8 of its particulars of claim pleads
the alleged
terms of the agreement.
4
In paragraph 8.1, the plaintiff pleads that the first defendant would
from
time to time engage the services of the plaintiff which would
render the services upon the terms and conditions as initially agreed
upon between the parties.
5
Just as the plaintiff failed to plead the terms of the initial
agreement
as referred to in paragraph 8.1, so did the plaintiff
failed to plead all of the essentialia, nor does the alleged written
agreement
contain such essentialia to substantiate a valid and
enforceable agreement.
6
The plaintiff inter alia failed to plead the scope of services and/or
rates,
and the charges agreed upon and the written agreement relied
upon by the plaintiff is salient in this respect.
7
It is submitted that an agreement that does not meet or contain the
minimum
essential elements are invalid and unenforceable, rendering
the plaintiff’s particulars of claim excipiable in that it does
not disclose a cause of action.
8
Further the written agreement relied upon by the plaintiff only
contains
the alleged terms as pleaded in paragraphs 8.2 to 8.6 of the
plaintiff’s particulars of claim.
9
The terms of the written agreement relied upon by the plaintiff does
not
support the allegations as pleaded in paragraph 8.1 of its
particulars of claim in the event rendering the particulars of claim
excipiable in that it is vague and/or embarrassing and/or that it
does not disclose a cause of action.
”
[11]
The second defendant is a surety. Nothing
turns on that.
[12]
As indicated, the notion that the
particulars of claim do not disclose a cause of action has been
disposed of. It is rather difficult
to discern from the exception
what exactly in the plaintiff’s pleading, read with the
agreement and the breakdown of the
outstanding debt, attached to it,
would be difficult to plead to.
[13]
All that paragraph 8.1 says is that the
first defendant would from time to time engage the services of the
plaintiff who would render
freight and delivery services. There can
surely be no objection to pleading what the nature of the services to
be rendered by the
plaintiff to the first defendant would be. I
therefore must assume that that part of the subparagraph is not
objected to. It was
argued, however, that the second part of the
sentence of 8.1 is vague. This is where the plaintiff pleads that the
services would
be rendered to the first defendant upon the terms and
conditions as agreed between the parties.
[14]
How that causes confusion, escapes the
mind. In paragraph 7 of the particulars of claim it is pleaded that
the credit application
form incorporates the terms and conditions of
the trade between the parties. It says that it is attached to the
particulars of
claim as “B1” to “B9” and the
plaintiff claims that the terms and conditions thereof should be read
as
if specifically incorporated. It is therefore plainly wrong for
the defendants to claim that one is left to guess as to what the
terms and conditions are. It has been pleaded.
[15]
It is also wrong, as the second exception
claims, that there is a reference in the amended particulars of claim
to “
terms and conditions as
initially
agreed upon
”
. The amended
particulars of claim do not have the word “
initially
”
in paragraph 8.1. That is a copy and paste
exercise carried over from the first exception.
[16]
Although it does not appear from the
exception itself, counsel for the excipient argued that the standard
terms and conditions and
more specifically clause (h) thereof
stipulates that “
All loads are
undertaken in terms of No 1 Solutions’ standard conditions of
Carriage
”
.
[17]
Because, so the argument went, the
defendants are left to guess what those conditions are, the
defendants are embarrassed to plead.
Firstly, no word of this is
mentioned in the exception itself. I could also not find this issue
raised in the heads of argument
of the excipient which were filed one
court day prior to the hearing of the exception. It is, however,
apparent that plaintiff’s
claim is not premised on the standard
conditions of carriage. This clause seems to have bearing on the
conditions relating to the
transporting or carrying of each load. It
has little, if any, to do with payment outstanding in respect of
transport and freight
services rendered.
[18]
The defendants in their heads of argument
contend that they are unable to ascertain the basis of the quantum
for the debt due. This
is so, according to the defendants, because
the agreed rates and charges in respect of the services was not
pleaded.
[19]
C1 to C7 to the particulars provides a
breakdown of how the debt is arrived at. D1 – D948 provides
every single invoice that
speaks to the breakdown in C. For example,
the load rate on D1 is R920.00 per load. This is then multiplied with
the number of
loads, and one gets to the amount due in respect of
that invoice. The suggestion that the defendants are embarrassed in
this respect
is incorrect. The defendants might be confused with a
claim for damages where a plaintiff must provide detail as to how it
arrived
at the quantum so that the defendant can assess the quantum
of damages with some ease. This is not such a case.
[20]
The simple question is whether the
defendant is embarrassed to plead.
[21]
On a proper consideration of the
plaintiff’s pleading, it knows “adequately” what
the plaintiff’s case is.
With reference to the
Boksburg
Transitional Local Council
case –
supra,
the
defendants “
…
can
understand the plaintiff’s case and it is able to take
instructions from the client and to record a meaningful response
to
it…
”
. Instead, in this
case I dare to say that a hypothetical outsider would know what case
the defendants have to meet.
[22]
In my view, the exception is ill considered
and cannot succeed. That brings me to the issue of cost. The
plaintiff urges me to grant
cost on a punitive scale. This is firstly
premised on the notion that the delivery of the exception was
earmarked to delay the
prosecution of the plaintiff’s case, and
secondly, because the agreement allows for cost on an attorney and
client scale.
There is merit in the argument that the exception was
filed for purposes of delay. This is borne out by the fact that the
defendants,
as the excipients, did not prosecute their exception. The
plaintiff had to file heads of argument, which it did already on 27
October
2025. That did not spurt the defendants, being
dominus
litis
in the exception, into motion.
[23]
Instead, this court received heads of
argument at the latest moment being the Friday before the hearing of
the exception (i.e. with
one court day notice), which is
non-compliant with this court’s directives. This is indicative
thereof that the defendants
had no intention to prosecute their
exception. The defendants knew that the exception premised on the
notion that the particulars
of claim do not disclose a cause of
action, was bad in law. This is conceded.
[24]
Premised on this alone, a punitive cost
order is warranted, because, in my view, and although I am not easily
convinced to grant
costs on a punitive scale, this court ought to
show its displeasure in an excipient failing to prosecute its own
exception.
[25]
Furthermore, the parties agreed that, in
the event of the plaintiff having to approach a court under the
agreement, as pleaded,
cost on an attorney and client scale is
warranted. This is a further reason why an attorney and client costs
order is justified.
[26]
I make the following order:
1.
The exception is refused.
2.
The first and second defendants are
directed to deliver their plea within ten (10) days from the date of
this order.
3.
The first and second defendants shall pay
the cost of the exception, jointly and severally, the one paying the
other to be absolved
on an attorney and client scale.
D VAN DEN BOGERT
ACTING JUDGE
HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION,
PRETORIA
This
Judgment was handed down electronically by circulation to the
parties’ and or parties’ representatives by email
and by
being uploaded to CaseLines. The date and time for the hand down is
deemed to be 10h00 on 29 MAY 2026.
Appearances
Counsel
for the excipient/defendants:
R de
Leeuw
Instructed
by:
Rabie Botha and
Associates Attorneys
Ref.:
FJR/JE/LF1912
Counsel
for plaintiff:
D Gana
Instructed
by:
NVDB
Attorneys
Ref:M01473/N
van den Berg
Date
of Hearing:
25 May
2026
Date
of Judgment:
29 May
2026