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IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
KABELO MALAO
K MALAO INC.
and
CATHY MOTAKE
CORAM: HENDRICKS JP
Heard: 22 May 2026
Case No: 2169/2025
1st Excipient/Defendant
2nd Excipient/Defendant
Respondent/Plaintiff
Delivered: This judgment was handed down electronically, circulated to
the parties' representatives via email, uploaded to Caselines , and
released to SAFLII. The date and time for the handing down of the
judgment are set for 1 0h00 on 01 July 2026.
Summary: Exception based on the particulars of the claim allegedly being
vague and embarrassing and does not disclose any cause of action -
whether particulars of claim are excipiable on this basis - principles
restated - particulars of claim not excipiable and can be pleaded thereto.
[1] The parties are referred to as on the summons to avoid any
confusion. The plaintiff, Ms. Cathy Motake, issued summons out of
this court claiming payment in the amount of R995 990.00 plus
interest, for professional services rendered as an Occupational
Therapist (OT) to the defendants, in terms of an oral agreement
since 2014, on a no-win-no-fee basis. The plaintiff would render
professional services to the defendants and assess the clients of the
defendants for medico-legal purposes, which entailed consultation
assessments; preparation and promotion of written medico-legal
reports; the preparation, production and signing of joint minutes;
preparation and appearance at courts to testify on the medico-legal
reports and joint minutes, if necessary.
[2] Bulk referrals of clients for assessments which have been involved
in motor vehicle road accidents and which sustained related injuries,
were made by the defendants to the plaintiff. Payments would be
made as and when the Road Accident Fund (RAF) made payments,
after disposal of the matters and/or upon payments received, based
on invoices submitted. Some payments were indeed made and set
offs were made against invoices rendered. As and when bulk
payments were made, the plaintiff would set-off these amounts
against the oldest debt, without any specific directive from the
defendants, which invoice(s) were paid. The plaintiff alleges that not
all the invoices were paid.
[3] On 14 March 2023 the plaintiff terminated the agreement in writing,
alleging that the defendants are indebted to her in the
aforementioned amount. She further alleges that the invoices are
due and payable after the termination of the agreement. In response
to the termination of the agreement, the defendants made a written
commitment to pay the plaintiff's outstanding invoices, which they
failed to honour. A spreadsheet of a reconciliation statement is
attached to the particulars of claim of the summons, amounting to
R995 990.00. A notice was served on the plaintiff by the defendants
that her particulars of claim are vague and embarrassing and lack
averments necessary to sustain a cause of action and are therefore
excipiable. The defendants, as excipients, contend that there is a
lack of necessary factual averments to sustain a claim for a
liquidated debt; and because of the global, conclusory figures for
damages without pleading the material facts of the underlying
individual transactions, invoices, and payments, it is excipiable.
[4] It is trite that an exception is concerned with the legal sufficiency of
a pleading, not with the truth of the allegations contained therein.
For purposes of exception, a court must accept the pleaded facts as
correct and determine whether, on every reasonable interpretation,
the pleading fails to disclose a cause of action. The onus rests on
the excipient to prove that the pleading (particulars of claim) does
not disclose any action.
[5] In terms of Trope v South African Reserve Bank and Another1, a
plaintiff is required to plead the material facts on which the claim
rests with sufficient particularity to enable the defendant reasonably
to understand the case he/she/it has to meet and to plead thereto.
The onus rests on the excipient to show that, on any reasonable
reading, no cause of action is disclosed.
1 1993 (3) SA 264 (A).
[6] The purpose of an exception is to weed out pleadings that are bad
in law so as to avoid unnecessary evidence and the expense of a
trial where no sustainable claim or defence exists. In Jowell v
Bramwell-Jones and Others2 it is stated that the parties are bound
by the pleadings. The court may not wander beyond the four corners
of the pleaded case or decide issues not raised, lest it descend into
speculation and adjudicate on matters not properly placed in
dispute. An exception is thus not a vehicle to test the probabilities,
to resolve factual disputes, or to re-cast a party's case3.
[7] Rule 18( 4 )4 requires every pleading to contain "a clear and concise
statement of the material facts,, upon which the pleader relies, with
sufficient particularity to enable the opposite party to reply. It does
not demand evidential detail or argument. A cause of action
comprises every fact which would be necessary for the plaintiff to
prove, if traversed, in order to support the right to judgment; it does
not include every piece of evidence required to prove each fact. The
distinction is between the essential facta probanda, which must be
pleaded, and the facta probantia, which are matters for proof at trial.
Anything less than the former leaves a claim without a legal
foundation; anything more tends to obscure the real issues rather
than clarify them.
[8] An exception based on vagueness and embarrassment of a
pleading will only be upheld if the excipient shows that the defective
pleading causes serious prejudice to the ability to plead. Pleadings
2 1998 (1) SA 836 (W).
3 Masakhane Mining Supply and Construction CC tla Mashakhane Megawell Services vs FPM Business
Solutions (Pty) Ltd tla FPM Security Services (2025) ZANWHC 190.
4 Rule 18 (4) of the Uniform Rules of Court.
must state facts rather than bare conclusions, but exceptions are not
intended to resolve factual disputes. Only the material or essential
facts on which the cause of action is based, need to be pleaded.
Supportive evidential detail should ordinarily be left for trial, as its
inclusion may burden and confuse the issues. Pleadings must
define with precision the issues that fall for adjudication, so that the
parties and the court can engage on clearly delineated grounds the
issues to be decided. The burden is therefore on an excipient.
Unless the pleading is bad in law on every reasonable construction,
the exception must fail5.
[9] In Doyle v Fleet Motors (Pty) Ltcf, the Appellate Division confirmed
that for purposes of an exception, the question is not whether the
claim is likely to succeed but whether, accepting the allegations as
true, they disclose a legally sustainable cause of action. In
Masakhane Mining Supply and Construction CC tla Mashakhane
Megawe/1 Services7, the court upheld the defendant's first ground of
exception (failure to annex annexures "A" and "B" to the particulars
of claim) and granted the plaintiff leave to amend. The court found
that the annexures were "integral and relevant documents that are
necessary in establishing a cause of action", and that their absence
rendered the particulars of claim "vague and embarrassing".
[1 O] For an exception to be upheld, it must be shown that on every
reasonable interpretation of the pleading, no cause of action is
disclosed. A court must accept the pleaded facts as true and resist
5 Estabiz (Pyu) Ltd v Starflash (Pty) Ltd (Appeal) (CIV APP MG32/24 ) ZANWHC 108 (26 June 2025).
6 1971 (3) SA 760 (A).
7 [2025] ZANWHC 190.
the temptation to dispose of disputes at the threshold where a
reasonably arguable, legally sustainable case can be discerned.
Minor ambiguities, imperfections of drafting or a lack of evidential
detail do not amount to vagueness and embarrassment going to the
root of the cause of action or resulting in serious prejudice. Where a
party requires greater particularity for purposes of trial preparation,
the Uniform Rules of Court make provision for further particulars and
discovery.
[11] In conclusion, I am of the view that the defendants have failed to
establish that the plaintiff's particulars of claim, when read
holistically and construed in a sensible and benevolent manner, do
not disclose a cause of action or are so vague and embarrassing as
to occasion serious prejudice. The exceptions they advance are
aimed not at the legal sufficiency of the pleading, but at the level of
factual detail and evidential substantiation, issues which fall to be
determined at trial rather than on exception. In substance, the
exceptions seem to deploy Rule 23 of the Uniform Rules of Court,
as a vehicle to challenge the factual merits and anticipated proof of
the plaintiff's case, rather than to demonstrate an absence of a
sustainable cause of action or true prejudice arising from
vagueness. The exceptions, can therefore not be sustained and
must be dismissed.
[12] Insofar as costs are concerned, it should follow the result and be·
awarded in favour of the successful litigant, the plaintiff, Ms. Cathy
Motake. Mr. Hlapolosa, the legal representative acting for and on
behalf of Ms. Cathy Motake (the plaintiff), prayed that costs be
awarded on a punitive scale as between attorney-and-client, as the
exceptions raised falls within the 'ambits of frivolousness, vexation,
malice and delays'. I am holding a different view. I am of the view
that it would be just, fair and appropriate to award costs on a party
and-party basis, on Scale B, to be taxed.
Order
[13] Consequently, the following order is made:
(i) The exceptions are dismissed.
(ii) The defendants are ordered jointly and severally, the one
paying the other to be absolved, to pay the costs of the
exception proceedings, on Scale B, to be taxed.
(iii) The defendants are directed to deliver their plea within ten (10)
days from the date of this order.
RD HE ft CKS
JUDGE PRESIDENT
NORTH WEST DIVISION, MAHIKENG
APPEARANCES
For the Plaintiff: Adv. Riley
Instructed by: RS Tau Attorneys, Mahikeng
For the Defendants: Mr. Hlapolosa
Instructed by: Lerato Moeketsi Attorneys, Mahikeng