About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
You are here:
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 894
|
Noteup
|
LawCite
Amberview Body Corporate v Mukondeleli (2025/126677) [2026] ZAGPJHC 894 (7 August 2026)
Download original files
PDF format
RTF format
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION,
JOHANNESBURG)
Case
Number: 2025-126677
(1)
REPORTABLE: NO
(2)
OF INTREST TO OTHER JUDGES: NO
(3)
REVISED: NO
AMBERVIEW
BODY CORPORATE
Plaintiff/Respondent
and
ELEKANYANI
MUKONDELELI
Defendant
/
Excipient
JUDGMENT
INTRODUCTION
1
This
is an exception purportedly brought in terms of rule 23(1) of the
Rules of Court.
[1]
2
The
excipient, who is the defendant in the main action, is defending a
claim for payment of R34,036.02 based on an Acknowledgement
of Debt
(“AOD”) signed on 7 May 2025. In the purported exception,
the defendant complains that the particulars of claim
are vague and
embarrassing, alternatively fail to disclose a cause of action.
3
In the
Rule 23(1) notice, the defendant
“
calls
upon the plaintiff, within 10 days of receipt of this notice, to
remove the cause of complaint by delivering amended particulars
of
claim. Failing compliance, the defendant will
accept
the particulars of claim and apply for an order striking them out,
with costs”
.
4
At
the commencement of the hearing, I sought clarity from the
excipient’s counsel, Mr Mekwa on what precisely was meant with
the statement in the notice that should the plaintiff fail to remove
the cause of complaint, the defendant will accept the particulars
of
claim and apply for an order striking them out, with costs. The
response I received was that the word “accept” is
an
error and should have been “except”. So, before the court
was an exception together with an application to strike
out.
[2]
5
The
founding affidavit in the application to strike out lists three
“grounds of exception”. These grounds are –
5.1
First a failure to disclose a cause of
action (unlawful levying of legal costs).
5.2
Secondly, that the pleaded cause of action
relies on an unenforceable and unlawful contract, to wit, the AOD.
5.3
Thirdly,
the particulars of claim are vague and embarrassing – inability
to plead.
[3]
6
However,
the defendant filed a Notice of Motion that incorporates the
exception and an application to strike out. The approach adopted
by
the defendant is confused.
7
Rule 23(1)
deals with exceptions where the pleading is vague and embarrassing or
lacks averments which are necessary to sustain
an action or defence,
as the case may be. Where the contemplated exception is on the basis
that the pleading is vague and embarrassing,
the party delivering a
pleading is afforded an opportunity to remove the cause of complaint
and if it fails to do so, a notice
of exception is then delivered
against those impugned particulars of claim.
8
Applications to strike out are dealt with
under a separate rule, namely, Rule 23(2). In that rule, where any
pleading contains averments
which are scandalous, vexatious or
irrelevant, the opposing party may apply for a striking out of the
aforesaid matter, provided
that the party delivering the pleading may
be afforded an opportunity to remove the cause of compliant within 15
days of delivery
of the notice of intention to strike out.
9
Rule 23(2)
provides for prescribed instances where an application to strike out
an averment in a pleading may be brought. These
are where pleadings
contain averments which are scandalous, vexatious or irrelevant.
10
The Rules
do not contemplate an application to strike out pleadings that are
contended to be vague and embarrassing or fail to plead
averments to
sustain a cause of action. For that complaint, a Notice of Exception
as contemplated in Rule 23(1) is the prescribed
procedure.
11
When I
raised the fact that the Court does not have the power to strike out
pleadings on the basis that they may be vague and embarrassing
and/or
may fail to plead sufficient facts to sustain a cause of action,
counsel elected to abandon the application to strike out.
12
In any
event, there were other problems with the application to strike out.
13
The
application to strike out is supported by one paragraph in the
founding affidavit,
[4]
which
states as follows:
“
In
the alternative, and should the Honourable Court find that any
portion of the claim is not excipiable in its entirety, I apply
for
the offending paragraphs relating to ‘legal costs’ and
the enforcement of the unlawful AOD to be struck out as
vexatious and
prejudicial.”
14
The
affidavit does not identify the offending paragraphs. When I
considered the grounds of exception in the founding affidavit,
the
complaint appeared to be against certain provisions of the AOD and
not necessarily certain paragraphs in the particulars of
claim.
15
It is
clear to me, therefore, that the defendant has conflated the
application of the Rules relating to exceptions and strike outs.
Firstly, there is notice of exception as contemplated in Rule
23(1)(a). Instead, the defendant brought an application for strike
out under a notice of motion and a supporting affidavit.
16
Secondly,
the grounds on which the particulars of claim are impugned for being
vexatious and prejudicial are simply not pleaded
in the application
to strike out. As highlighted above, the application to strike out
contains one paragraph under the header of
“Application to
strike out” and simply pleads a conclusion without pleading any
substantiation. The court is asked
to speculate on the precise basis
on which the particulars may be vexatious and prejudicial to the
defendant.
17
As
mentioned above, the application to strike out was abandoned. What
was left was the exception. I decided to “accept”
the
notice of motion at CL010-1 to be a notice of exception as
contemplated in Rule 23(1)(b) and proceed to hear the argument on
the
exception.
GROUNDS OF EXCEPTION
18
The
grounds of exception as pleaded in the Rule 23(1) notice and
elucidated on by counsel at the hearing are threefold.
18.1
First, the computation of the quantum of
the claim has not been specified so that the defendant could know
what the components of
the amount claimed are.
18.2
The
AOD is unenforceable because it was concluded on 7 May 2025, yet it
contains a clause 3.1.1
[5]
which
puts an obligation on the debtor to make a once-off payment in the
amount of R3 521,43 on or before 1 May 2025.
18.3
Thirdly, the contract on which the claim is
based, the AOD, contains a clause 11.2 which states that no variation
of the agreement
shall be binding unless recorded in writing and
signed by the parties.
First ground of
exception
19
On
the first argued ground of exception, the submission made was that
the particulars of claim are excipiable because the plaintiff
claims
is for “legal costs” and “monitoring fees”
which it has unilaterally included under the defendant’s
levy
account.
[6]
The complaint is
that the mixing up of legal costs and monitoring fees under the
levies makes it possible for the defendant to
know how the amount
claimed was arrived at and to plead to the quantum of the claim.
20
In
my view, however, the complaint loses sight of the fact that the
plaintiff’s claim is based on a liquid document.
[7]
Secondly, in the AOD, the defendant has undertaken to pay the
identified and defined indebted amount on the terms set out
therein.
[8]
There is no dispute
that the defendant signed the acknowledgement of debt. Even if that
was a point of contention, that can never
be decided at the exception
stage.
21
Thirdly,
the AOD is for an ascertained amount of money of R37,326.76.
[9]
In paragraph 8.2 of the particulars of claim,
[10]
the plaintiff specifically pleads that
“
the
following table evidencing the calculation of the claim amount herein
is given”
and
sets out the indebted amount as per the acknowledgement of debt
(R37,326.76), less payments received (R3,290.74) and allocated
towards the indebted amount; and the total amount due (R34,036.02).
22
The
complaint that the particulars of claim do not set out the
specificity on the computation of the quantum is without merit.
Whether the amount due is made up of “
legal
fees”
and/or
“
monitoring
fees”
is a matter that can be
taken up in the defence to be pleaded in due course and cannot render
the particulars of claim excipiable.
Second ground of
exception
23
On the
second ground of exception that relates to the unlawfulness of the
AOD on the basis that it contains an obligation on the
debtor to pay
the first instalment on a date that precedes the date of the signing
of the agreement, counsel made the submission
that this obligation
was impossible to perform and therefore rendered the whole
acknowledgement of debt unenforceable.
24
I disagree
with this submission. Quite apart from the fact that the AOD was not
formulated in suspensive terms and that there remained
further
instalments due from the defendant after 1 May 2025, the defendant
can plead the defence of impossibility of performance,
if so advised.
There is no basis for a court, at the stage of an exception, to
declare that the entire AOD is unenforceable because
of a singular
obligation which does not, on the terms of the AOD, collapse the
agreement.
Third ground of
exception
25
The third
ground of exception was based on a complaint that clause 11.2 of the
AOD does not permit a variation of the agreement
which is not reduced
to a written document and signed by the parties. The argument was
that the parties should have signed a written
variation of the AOD to
provide for the date of the first instalment to be after the date of
signature of 7 May 2025. Given that
there was no such variation, and
that there is a clause that creates a performance of an obligation on
a date before the signing
of the agreement, the entire AOD was “not
lawfully executed”, counsel submitted.
26
I
struggled to understand this submission. I, however, raised with
counsel that, if there is any merit to the point, could that
point
not possibly be a defence raised in a plea to be filed by the
defendant in due course. Counsel accepted that in principle
a
pleading along those lines remained possible.
27
The
fundamental problem with this ground of exception is that it is hard
to follow because it suggests that the entire AOD is unenforceable
because the date of 1 May 2025 was not amended when the parties
signed the agreement on 7 May 2025.
28
But, there
may very well be a reason why the parties did not amend clause 3.1.1
of the AOD to provide for another date for the payment
of the first
instalment. In the absence of that factual evidence, there is no
basis for a court to declare that the agreement was
“not
lawfully executed” or is unenforceable.
CONCLUSION
29
One
of the applicable considerations on exception enquires was expressed
in
Trope
v South African Reserve Ban
k
[11]
to
be that it is of course a basic principle that particulars of claim
should be so phrased that a defendant may fairly and reasonably
be
required to plead thereto. This must be seen against the background
of the further requirement that the object of pleadings
is to enable
each side to come to trial prepared to meet the case of the other and
not be taken by surprise. Pleadings must
therefore be lucid and
logical and in an intelligible form: the cause of action or defence
must appear clearly from the factual
allegations made.
30
The
exception that a pleading is vague and embarrassing is intended to
cover the case where, although a cause of action appears
in the
summons there is some defect or incompleteness in the manner in which
it is set out, which results in embarrassment to the
defendant.
[12]
31
An
exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not its legal validity.
[13]
32
There is
nothing contradictory or vague about the plaintiff’s
particulars of claim or the formulation of the cause of action.
The
defendant is able to plead to the claim.
33
There is
no merit to any of the grounds of exception raised by the defendant.
COSTS
34
The
excipient sought costs on the attorney and client scale in terms of
clause 13.1 of the AOD if she is successful in the exception.
She
clearly must fail because none of her exceptions can be upheld.
35
The
respondent, plaintiff in the action, asks for costs on the attorney
and client scale, also relying on clause 13.1 of the AOD.
I am
inclined to enforce the terms of the AOD and grant costs in favour of
the plaintiff, the respondent in the exception.
36
Clause
13.1 of the AOD states that should the creditor be compelled to
enforce the terms of the agreement and/or institute legal
proceedings
against the debtor, the debtor in such event agrees to pay all legal
costs incurred by the creditor in respect of such
legal proceedings
and such costs shall be paid on the scale as between attorney and own
client and shall include sheriff’s
charges, advocates fees,
telephone calls, letters, consultations, time spent considering
agreements and merits, perusal and consideration
of ancillary
documents, meetings, collection commission, the preparation of this
agreement, valuation costs and the like.
37
The clause
provides for a wide range of costs. For this exception, the plaintiff
shall be granted costs on the attorney and own
client scale,
including advocates fees.
38
In the
circumstances, the following order is made:
38.1
The
defendant’s exception is dismissed.
38.2
The
defendant is ordered to pay the plaintiff’s costs of the
exception and the application to strike out on the attorney and
own
client scale, including the costs of counsel where so employed.
BL MANENTSA
ACTING JUDGE OF THE
HIGH COURT
JOHANNESBURG
Appearance
For
the Excipient/Defendant:
Mr Mekwa (Attorney)
Instructed
by:
Nkhumeleni Attorneys Inc
[email protected]
For
the Respondent/Plaintiff:
Mr Budenhorst
Instructed
by:
Heerschop Pienaar Attorneys
[email protected]
[1]
CL007-1
to 007-3.
[2]
CL010-1
to 010-4.
[3]
CL010-6
to 010-8 paras 3 – 11.
[4]
CL010-8
para 12.
[5]
CL004-17
para 3.1.1 of annexure “A” of the particulars of claim.
[6]
Notice
in terms of Rule 23(1) CL001-7 para 1.
[7]
Erasmus
Superior Courts Practice 2
nd
Ed Vol 2 (Service 26, 2025) p D1 Rule 8-5 and cases mentioned in fn
2.
[8]
CL004-15
para 2.2 of annexure “A” of the particulars of claim.
[9]
CL004-15
para 1.3.7 of annexure “A” of the particulars of claim.
See Also Erasmus, supra, p D1 Rule 8-6.
[10]
CL004-10.
[11]
Trope
v South African Reserve Bank
1992 (3) SA 208
(T) at 210H – 211E
[12]
Wapejo
Shipping Company Ltd, Liquidators v Lurie Bros
1924
AD 69
at 74;
Scheepers
v Krog
1925
CPD 9
at 11;
Lockhat
v Minister of Interior
1960
(3) SA 765
(D) at 777E
[13]
Trope
and others v South African Reserve Bank (supra)
at
269I;
Venter
and Others NNO v Barrett; Venter and Others NNO v Wolfsberg Arch
Investment 2 (Pty) Ltd
2008
(4) SA 639
(C) at 643I – 644A