IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case Number: 2024-061823
In the matter between:
HONGBO HUANG First Plaintiff
CHINA HUANG CC Second Plaintiff
HONGBO TRADING CC Third Plaintiff
and
THE MINISTER OF POLICE First Defendant
GHOST GUARD SECURITY Second Defendant
MARIUS VAN DER MERWE Third Defendant
HEINEKEN BEVERAGES Fourth Defendant
TITAN CARGO Fifth Defendant
(1) REPORTABLE: YES / NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
_15 JUNE 2026____ ________
DATE SIGNATURE
2
Summary: A declaration founded on the rei vindicatio and the actio ad exhibendum
must plead ownership with sufficient clarity to enable the defendant to know whose
ownership is asserted and on what juridical basis, a bare conclusory allegation of joint
ownership is insufficient. A declaration is further vague and embarrassing where it s
body and prayer cannot be reconciled as to the scope of goods claimed, and where
the identity of a party on whose behalf possession was allegedly taken is left
unpleaded. All three grounds of exception upheld. Application to strike out dismissed,
the impugned allegations may bear on the claim against other defendants. On costs:
what matters under Rule 67A is the complexity of the argument actually advanced; the
plaintiffs' partial success in resisting the strike -out is a further reason to decline the
elevated scale. Scale B is awarded.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Sekwakweng AJ
Introduction
[1] On 4 June 2026, I granted an order upholding the fourth defendant’s first, second
and third grounds of exception to the plaintiffs’ declaration. I dismissed the fourth
defendant’s application to strike out. I further ordered the plaintiffs to pay the
fourth defendant’s costs of the exception , including the costs of two junior
counsel. These are the reasons for that order.
[2] The proceedings had their origins in motion proceedings. In those proceedings,
the first to third applicants, who are now the plaintiffs, sought relief arising from
the alleged seizure of goods by members of the South African Police Service.
The goods included alcoholic beverages. The proceedings were initially directed
against the Minister of Police. Thereafter, other parties were joined on the basis
that they were alleged to have been involved in the removal, receipt, transport or
disposal of the goods.
disposal of the goods.
[3] The proceedings were referred to trial. The applicants became plaintiffs and the
respondents became defendants. The notice of motion and founding affidavit
stood as simple summons. The plaintiffs were required to deliver a declaration,
3
and the subsequent conduct of the matter was to be governed by the Rules
applicable to trial proceedings.
[4] On 29 May 2025, the plaintiffs delivered their declaration. The fourth defendant,
Heineken Beverages, thereafter, delivered a notice in terms of Rule 23, calling
upon the plaintiffs to remove certain causes of complaint. The complaints raised
by the fourth defendant may be summarised as follows. First, the declaration did
not clearly plead the basis upon which the first to third plaintiffs alleged ownership
of the goods. Secondly, the declaration did not clearly identify the scope of the
goods claimed from the fourth defendant. Thirdly, the declaration referred to the
second defendant’s “client” without identifying that client. The plaintiffs did not
remove the causes of complaint. The fourth defendant then delivered an
exception to the declaration, together with an application to strike out certain
paragraphs of the declaration.
The legal principles
[5] The exception was taken on the ground that the declaration is vague and
embarrassing. The purpose of pleadings is to define the issues between the
parties with reasonable clarity. A party must know the case it is required to meet.
A pleading must therefore contain the material facts upon which the pleader
relies, pleaded with sufficient particularity to enable the opposing party to answer.
As Heher J observed in Jowell v Bramwell-Jones and Others1, it is the function
of a pleading to enable the opposite party to know with reasonable precision the
case that must be met, so as to be prepared for trial. That principle was affirmed
on appeal at the SCA in Jowell v Bramwell Jones and Others.2
[6] Rule 18(4) requires every pleading to contain a clear and concise statement of
the material facts upon which the pleader relies for the claim, defence or answer,
with sufficient particularity to enable the opposite party to reply thereto. The
requirement is not a matter of form only. It gives content to fairness in a pleading.
requirement is not a matter of form only. It gives content to fairness in a pleading.
A party should not be required to guess the case it has to meet. The object of
1 Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 899E–F, 902F–G and 902I–903A.
2 Jowell v Bramwell-Jones and Others (543/97) [2000] ZASCA 16; 2000 (3) SA 274 (SCA); [2000] 2 All SA 161 (A)
(28 March 2000).
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pleadings is to enable the parties to come to trial prepared to meet each other's
case and not to be taken by surprise.3
[7] In McKenzie v Farmers’ Co-operative Meat Industries Ltd4, the Appellate Division
described the cause of action as:
“Every fact which it would be necessary for the plaintiff to prove, if traversed, in
order to support his right to the judgment of the Court.”
[8] In Venter and Others NNO v Barritt; Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd 5, the Court stated that the basic requirement is that the
defendant must have a clear enough exposition of the plaintiff’s case to enable it
to take instructions from the client and file an adequate response to the claim in
the form of a plea.
[9] In Lockhat v Minister of the Interior6, the Court explained the nature of vagueness
and embarrassment in the following terms:
“The object of all pleadings is that a succinct statement of the grounds upon
which a claim is made or resisted shall be set forth shortly and concisely; and
where such statement is vague, it is either meaningless or capable of more than
one meaning. It is embarrassing in that it cannot be gathered from it what
ground is relied on by the pleader.”
[10] The approach in Trope v South African Reserve Bank 7 remains apposite. An
exception on the ground of vagueness and embarrassment involves a two -fold
consideration: first, whether the pleading lacks particularity to the extent that it is
vague; and second, whether the vagueness causes embarrassment of such a
nature that the excipient is prejudiced. As to prejudice, the ability of the excipient
to produce an exception-proof plea is not the only, nor indeed the most important,
3 Jowell 1998 (W) at 902B and 902I–903A.
4 McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 at 23.
5 Venter and Others NNO v Barritt; Venter and Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4) SA
639 (C).
6 Lockhat v Minister of the Interior 1960 (3) SA 765 (D) at 777.
639 (C).
6 Lockhat v Minister of the Interior 1960 (3) SA 765 (D) at 777.
7 Trope v South African Reserve Bank 1992 (3) SA 208 (T) at 210G–211E.
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test: Levitan v Newhaven Holiday Enterprises 8. The object of pleadings is to
enable the parties to come to trial prepared to meet each other's case and not to
be taken by surprise. It is therefore possible to be prejudiced even where a bare
plea of denial could technically be formulated, if the defen dant is left uncertain
which of several possible cases it is required to answer.
[11] An exception is not there to determine the truth of the plaintiffs' allegations. When
considering an exception, the court accepts as true the allegations pleaded by
the plaintiff.9. The complaints raised by the fourth defendant were directed at the
manner in which the plaintiffs had pleaded their claim against it. The enquiry here
is therefore whether the declaration states the plaintiffs' case against the fourth
defendant with sufficient clarity to allow the fourth defendant to plead.
[12] The claims pleaded against the fourth defendant appear to be founded principally
on the rei vindicatio and, in the alternative, the actio ad exhibendum. For the rei
vindicatio to succeed, the plaintiff must allege and prove ownership and that the
defendant is in possession of the property; the defendant then bears the onus of
establishing any right to continue to hold against the owner.10
[13] The actio ad exhibendum is a personal delictual remedy, available where the
defendant has wrongfully and deliberately disposed of the plaintiff's property so
that vindication has become impossible.11 For present purposes, it is sufficient to
note that ownership of the property, the identification of the property, and the
defendant's alleged possession, control or wrongful disposal of the property are
therefore material elements which the plaintiffs must ultimately establish.
The first ground of exception: ownership
[14] The first ground of exception concerns ownership. The plaintiffs allege that the
first plaintiff purchased the goods on behalf of the second and third plaintiffs. The
first plaintiff purchased the goods on behalf of the second and third plaintiffs. The
declaration then alleges that the goods were stored at premises associated with
8 Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 298G–H.
9 Living Hands (Pty) Ltd v Ditz and Others 2013 (2) SA 368 (GSJ) at 374G.
10 Chetty v Naidoo 1974 (3) SA 13 (A) at 20A–D.
11 Mlombo v Fourie 1964 (3) SA 350 (T).
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the second plaintiff. It thereafter concludes that the first to third plaintiffs are the
lawful owners of the goods.
[15] I accept the fourth defendant’s complaint that this pleading is materially unclear.
If the first plaintiff purchased the goods on behalf of the second and third plaintiffs,
the natural implication may be that the first plaintiff acted as representative for
the second and third plaintiffs. If that is the intended case, the declaration does
not explain why the first plaintiff also claims ownership of the goods. If the
intended case is that all three plaintiffs are co -owners, then the facts giving rise
to such co-ownership must be pleaded. If the second and third plaintiffs alone
acquired ownership because the first plaintiff purchased the goods on their
behalf, then that must also be made clear.
[16] The declaration does not plead to a partnership, a co -ownership agreement, a
transfer of ownership, a cession or any other juridical basis from which ownership
by all three plaintiffs can be understood. The allegation that the goods were
stored at premises associated with the second plaintiff does not cure the defect.
Storage may be relevant to possession or control. It does not, without more,
establish ownership.
[17] Ownership is central to a vindicatory claim. It is also material to the alternative
claim for payment of the value of the goods, because that alternative claim is
premised upon the plaintiffs’ proprietary entitlement to the goods. The fourth
defendant is entitled to know whether the first plaintiff claims as owner, whether
the second and third plaintiffs claim as owners, or whether all three plaintiffs claim
as co-owners. It is also entitled to know the legal basis on which that ownership
is alleged.
[18] In the absence of that clarity, the fourth defendant cannot properly plead. It
cannot decide whether to place ownership in issue, whether to raise a locus
standi defence against one or more plaintiffs, or whether to meet a case based
standi defence against one or more plaintiffs, or whether to meet a case based
on co-ownership, separate ownership or some other proprietary basis.
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[19] The first ground of exception was accordingly upheld.
The second ground of exception: the scope of the goods claimed
[20] The second ground of exception concerns the scope of the claim against the
fourth defendant. The body of the declaration refers broadly to the seized
Savanna Ciders. Those allegations appear to include both pallets of cases of
500ml bottles of Savanna Dry Cider and pallets of cases of 330ml bottles of
Savanna Dry Cider. The prayer against the fourth defendant, however, appears
to be confined to 1750 cases of 330ml bottles of Savanna Dry Cider, alternatively
payment of R 523 250.
[21] The fourth defendant is entitled to know whether the case against it is confined
to the 1750 cases of 330ml Savanna Dry Cider, or whether the plaintiffs seek to
hold it liable in relation to the broader category of seized Savanna Ciders referred
to in the body of the declaration. That uncertainty is material. It affects the subject
matter of the claim, the number and type of goods claimed, the alternative
monetary claim, and the facts relating to possession, control, disposal and value
of the goods.
[22] The body of a pleading and the prayer need not always use identical language,
but they must be reconcilable. Where the body of the pleading suggests one case
and the prayer suggests another, the defendant is placed in the position of having
to speculate about the case it must answer. That is precisely the prejudice which
the rules of pleading are designed to avoid.12
[23] The uncertainty in this matter concerns the identity and value of the goods
claimed from the fourth defendant. It is therefore both material and prejudicial.
[24] The second ground of exception is accordingly upheld.
The third ground of exception: the unidentified client
12 Jowell v Bramwell-Jones and Others.
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[25] The third ground of exception concerns the allegation that the third defendant
took possession of the goods on behalf of the second defendant and the second
defendant’s “client”. The “client” is not identified in the declaration.
[26] If the client is intended to be the fourth defendant, the pleading should say so. If
the client is another party, that party’s identity and role should be pleaded. The
point is material because possession and control of the goods are central to the
claims advanced. The plaintiffs’ case concerns the removal, release, receipt,
possession, control and alleged disposal of goods. In that setting, the identity of
a person on whose behalf possession was allegedly taken is not peripheral.
[27] The fourth defendant cannot properly plead to allegations of receipt, possession,
control, disposal, wrongfulness or negligence while the party on whose behalf
possession was allegedly taken remains unidentified. The omission is also
related to the broader difficulty in the declaration: the pleading does not clearly
identify who owned the goods, which goods are claimed from the fourth
defendant, and the precise route by which the goods allegedly came into the
fourth defendant’s possession or control.
[28] I therefore upheld the third ground of exception.
The application to strike out
[29] The fourth defendant also sought to strike out certain paragraphs of the
declaration. The application was directed at allegations said to be irrelevant to
the claim against the fourth defendant, including allegations concerning the
absence of a warrant and alleged unlawful police conduct, and at allegations said
to be repetitive.
[30] The principles governing striking out are different from those governing an
exception. A court may strike out matter that is scandalous, vexatious or
irrelevant, provided that prejudice is shown. The remedy is directed at removing
objectionable matter from the pleading. It is not a general licence to rewrite a
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pleading or to excise material merely because it may ultimately prove
unnecessary.13 Courts approach the remedy with caution.
[31] In Lotzoff v Connel14, the Court approached the matter on the basis that the party
seeking to strike out must show that the matter objected to is of a kind which
justifies striking out and that prejudice will result if it remains. The court must be
cautious, particularly where t he impugned allegations may still bear on the
pleaded case against another party.
[32] In the present matter, the allegations concerning the absence of a warrant and
the alleged unlawfulness of the search and seizure may not advance the claim
against the fourth defendant in a direct way. However, those allegations may be
relevant to the claim against the first defendant, the Minister of Police. They may
also form part of the factual narrative explaining how the goods left the plaintiffs’
possession and came to be in the hands of other parties.
Costs
[33] The fourth defendant succeeded on each of the three grounds of exception. The
grounds were not peripheral. They went to the heart of the fourth defendant's
ability to understand the case it was required to meet. The fact that the
application to strike out was dismissed does not alter that result. The fourth
defendant is entitled to costs.
[34] The fourth defendant delivered a Rule 23 notice identifying the defects in the
declaration with precision. The plaintiffs did not remove the causes of complaint.
By the time the exception was argued, the plaintiffs had been on notice of the
specific defici encies for some months. The exception was a proper and
necessary procedural step. The fourth defendant is entitled to its costs.
[35] The fourth defendant sought costs on Scale C. The plaintiffs sought dismissal of
the exception with costs on Scale B. Under Rule 67A, a higher scale requires
13 Beinash v Wixley 1997 (3) SA 721 (SCA) at 734E–F.
14 Lotzoff v Connel 1968 (2) SA 127 (W).
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justification by reference to clearly identified features that mark the matter out as
unusually complex, important or valuable 15. What matters under the Rule is the
complexity of the argument that was actually required, not the potential
complexity of the underlying dispute.16
[36] The exception was resolved on identifiable deficiencies in the declaration
concerning ownership, the scope of goods claimed, and the identity of an
unidentified party. Those are not features that mark it out as unusually complex.
Scale C is not warranted. The matter did, however, involve several parties and
arose from a referral to trial, and the result was not entirely one -sided, the
plaintiffs succeeded in resisting the application to strike out, which is a proper
factor in the exercise of the costs discr etion.17 Weighing those considerations
together, Scale B is appropriate.
[37] As to two counsels, I am moved by the scope of the litigation. The engagement
of two counsel in a matter involving more than one defendant is not
unreasonable. The award of costs inclusive of the costs of two counsel is merited.
[38] The costs order therefore follows the substantial result in the exception.
Order
The following order was granted:
1. The fourth defendant's first, second and third grounds of exception are
upheld. The fourth defendant's application to strike out is dismissed.
2. The plaintiffs are afforded 20 days from the date of service of this order
upon their attorneys of record to deliver an amended declaration.
3. Should the plaintiffs fail to deliver an amended declaration within the
period referred to in paragraph 2, the plaintiffs' claims against the fourth
15 Mashava v Enaex Africa (Pty) Ltd and Others 2025 (1) SA 466 (GJ) at paras 16–17.
16 Mashava at para 21.
17 Fripp v Gibbon & Co 1913 AD 354 at 363.
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defendant shall be dismissed with costs, including the costs of two
counsel, on Scale B.
4. The plaintiffs shall pay the fourth defendant's costs, including the costs
of two counsel, on Scale B.
__________ ___
M D SEKWAKWENG
Acting Judge of the High Court
Pretoria
Delivered: This judgment was prepared and authored by the Judge whose name
is reflected herein and is handed down electronically by circulation to the
parties or their legal representatives by email and by uploading it to the
electronic file of this matter on CaseLines. The date for hand -down is deemed
to be the date reflected above.
Heard: 4 June 2026
Delivered: June 2026
Appearances:
Counsel for the fourth defendant / excipient: H P Van Nieuwenhuizen
and H Le Roux instructed
by Van Nieuwenhuizen,
Kotzé & Adam Attorneys
Counsel for the first to third plaintiffs / respondents: R B Mphela
Instructed by
MHP Malesa Attorneys