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[2026] ZAWCHC 420
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Vumatel (Pty) Ltd v City of Cape Town (15671/2022) [2026] ZAWCHC 420 (30 July 2026)
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IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN CAPE
DIVISION, CAPE TOWN)
JUDGMENT
Not
Reportable
Case
No:
15671/2022
In the matter between:
VUMATEL
(PTY) LTD
Excipient
and
CITY
OF CAPE TOWN
Respondent
In
re:
SHANTAL
THERESA COZETT
Plaintiff
and
CITY
OF CAPE TOWN
First
Defendant
VUMA
IT (PTY) LTD
Second
Defendant
KWCE
TELECOMS CC
Third
Defendant
LAST
MILE TELECOMMUNICATION (PTY) LTD
Fourth
Defendant
and
VUMATEL
(PTY) LTD
First
Third Party
KWCE
TELECOMS CC
Second
Third Party
LAST
MILE TELECOMMUNICATION (PTY) LTD
Third
Third Party
Neutral
citation
:
Vumatel
(Pty) Ltd v City of Cape Town
Case No
15671/2022 [2025] ZAWCHC (29-07-2026)
Coram
:
MAPOMA,
AJ
Heard
:
23 April 2026
Judgment
:
30 July 2026
Summary
:
Exception
–
third party taking
exception on the defendant’s particulars of claim as vague and
embarrassing and disclose no cause of action-
whether the defendant’s
pleadings are contradictory - whether excipient is embarrassed from
pleading and prejudiced thereby
– interpretation of contract -
when extrinsic evidence can be invoked.
ORDER
1.
The exception in respect of the first
defendant’s particulars of claim against the third parties is
allowed.
2.
Leave is granted to the first defendant to
amend its particulars of claim against the third parties.
3.
The first defendant is ordered to pay costs
of the first third-party, such cost to include counsel’s costs
on High Court scale
B
JUDGMENT
MAPOMA, AJ
[1]
This is an exception taken by the first
third-party, Vumatel (Pty) Ltd (“Vumatel”, or “the
excipient”) against
the particulars of claim of City of Cape
Town (“the City”) who is the first defendant in the main
action. The exception
is based on two grounds,
firstly
that same is vague and embarrassing in
the context of the provisions of rule 23(1) of the Uniform Rules of
Court, and
secondly
that it fails to disclose a valid course of action.
[2]
The exception is resisted by the City,
primarily on the basis that the cause of complaint is misconceived in
that the excipient’s
contention is founded on a question of
fact, and that as such, the correctness of the contention falls to be
determined by evidence
at trial. In short, the City contends that
this is not an issue to be resolved by exception.
The Facts
[3]
This matter originates from the main civil
action that was instituted on 19 September 2022 by Ms
Cozett
(“the Plaintiff”) against the City and
other defendants, claiming damages for bodily injuries she allegedly
sustained
as a result of tripping on a pavement at Mitchells Plain.
In the main action the City is the first defendant.
[4]
The incident that triggered the cause of
action allegedly occurred during the construction project that was
implemented by the third
parties, the City’s service providers
who were conducting fibre installation for municipal
telecommunications services.
[5]
Upon receipt of summons, the City in turn
instituted the third-party proceedings in terms of Rule 13 of the
Uniform Rules of Court,
seeking to be indemnified by the third
parties, including Vumatel. The City’s third-party
indemnification claim is premised
on the wayleave permit that the
City issued to the third parties on 24 June 2002, before the
execution of the project. The City
claims that in terms of the
wayleave permit, the third parties agreed to indemnify it against any
claims arising from the works
that were conducted by the third
parties.
[6]
According to the wayleave permit, which is
attached to the City’s plea, the construction in question is
reflected as the “Installation
of VUMA ducts”. The permit
identifies VUMA as the service owner and KWCE Telecoms cc as the
appointed engineers. In the relevant
excerpts of Clause 4 of the
permit, on which the City relies in seeking indemnification by the
third parties, the general conditions
of the permit state as follows”
“
4.
General
a)
……………
..;
b)
……………
..;
c)
On acceptance of this, the Permit Holder or
its workers indemnifies Council for any third-party claim which may
result directly
or indirectly from the construction related
activities of this works.
d)
The Permit Holder / Service Owner will be
responsible for the maintenance of his infrastructure in the public
road reserve and any
third-party claim that may result from the
presence of such infrastructure.”
[7]
In the plaintiff’s particulars of
claim, where the City is cited as the first defendant, the second
defendant is Vuma IT (Pty)
Ltd (“Vuma IT”). The third and
fourth defendants, who are not in contention for the purposes of
these proceedings,
are
KWCE Telecoms cc
and
Last Mile
Telecommunication (Pty) Ltd respectively. Notably, in its third-party
claim, the City cited Vumatel instead of Vuma IT
as the first third
party. Nowhere is Vuma IT cited as the third party.
[8]
Aggrieved by the third-party notice seeking
indemnification against it, Vumatel took exception in terms of Rule
23(1) against the
City’s particulars of claim on two grounds.
Exception
[9]
The first ground of exception by Vumatel is
that the City’s third party particulars of claim are vague and
embarrassing, in
that in its plea to the plaintiff's particular
claim, the City admitted that the second defendant, that is Vuma IT
(Pty) Ltd, with
the third and fourth defendants were the parties that
were conducting the installation work in terms of the wayleave permit
that
was granted by the City at the project in question, yet in its
third-party particulars of claim, the City claimed that Vumatel,
(and
not Vuma IT), and the third and fourth defendants in the main action,
were the parties that were conducting the installation
in terms of
the City’s wayleave permit, whereas Vumatel is not listed in
the wayleave permit, but Vuma IT is.
[10]
On this basis, Vumatel contends that the
City’s allegations as pleaded in its particulars of claim is
contradictory to what
is contained in the wayleave permit that the
City relies on. Vumatel contends that it is vague and embarrassing
for the City to
plead that Vumatel conducted the fibre installation
work in question in terms of the permit, when Vumatel is not listed
as a party
who conducted the installation work. In the wayleave
permit, the listed service owner is VUMA.
[11]
The second ground of exception is that the
City's particulars of claim disclose no cause of action, in that the
contract of indemnification
in the form of wayleave permit, upon
which the City relies is remised on clause 4(c) and 4(d) of the
permit conditions,
ex facie
excludes Vumatel as a party to the contractual indemnification. The
permit only refers to VUMA and KWCE Telecoms cc as service
owner and
appointed engineer respectively. As such, so goes the contention, the
pleadings lack the necessary averments to sustain
the action against
Vumatel.
City’s
contentions
[12]
In resisting the exception, the City
contends that its claim against Vumatel rests on the allegation that
Vumatel is the entity
referred to in the wayleave approval permit as
VUMA, the service owner and as such, is bound by the
indemnifications. This contention
is buttressed with the submission
that the question of whether VUMA mentioned in the wayleave permit
refers to Vumatel is a question
of fact that requires evidence and
cannot be determined on exception.
[13]
The City’s further contention is that
the pleading is not contradictory in that the City’s factual
allegation is that
VUMA is Vumatel, It is argued that the dispute of
factual allegations should be traversed in the plea and is not a
matter to be
dealt with by exception.
Issues
[14]
In light of the above two issues for
determination by the Court are:
a)
whether the City’s particulars of
claim are vague and embarrassing on the contended basis, so much so
that the defendant is
prejudiced from pleading; and,
b)
whether the pleadings as they are, disclose
no cause of action.
[15]
As things are, it seems to me that both
grounds of exception turn on one and the same issue by the excipient,
namely, that Vumatel
is not VUMA that is in the permit. Thus, if the
answer to any of the above two grounds is in the affirmative, it
follows that the
exception should succeed.
Applicable legal
principles
[16]
The
object of an exception is to dispose of the case or portion thereof
in an expeditious manner or to protect a party against an
embarrassment which is so serious as to merit costs even of an
exception.
[1]
[17]
Rule 23(1) of
the Uniform Rules of Court provides as follows:
“
23
Exceptions and applications to strike out
(1)
Where any
pleading is vague and embarrassing
,
or
lacks
averments which are necessary to sustain an action or defence
,
as the case may be, the opposing party may, within the period allowed
for filing any subsequent pleading, deliver an exception
thereto and
may apply to the registrar to set it down for hearing within 15 days
after the delivery of such exception…………”
(Own emphasis)
[18]
I
n
Luke
M Tembani and Others v President of the Republic of South Africa and
Another,
[2]
the
Supreme Court of Appeal set out with the relevant legal authorities
the general principles applicable to the adjudication of
exceptions.
These are summarized below:
a)
Exception
provides a useful mechanism to weed out cases without legal merit.
While it is so, it is nonetheless necessary that they
be dealt with
sensibly.
[3]
b)
It
is where pleadings are so vague that it is impossible to determine
the nature of the claim, or where pleadings are bad
in law that their
contents do not support a discernible and legally recognised cause of
action, that exception is competent.
[4]
c)
The
onus rests on an excipient, who must establish that on every
interpretation that can reasonably be attached to it, the pleading
is
excipiable.
[5]
d)
The
test for exception is whether on all possible readings of the fact no
cause of action may be made out; it being for the excipient
to
satisfy the court that the conclusion of law for which the plaintiff
contends cannot be supported on every interpretation that
can be put
upon the facts.
[6]
Are
the pleadings vague and embarrassing?
[19]
The
basic requirement for the particulars of claim is that the defendant
must have a clear exposition of the plaintiff’s case
to enable
it to appreciate the case it has to meet and file adequate response
in its plea.
[7]
[20]
The
summons is vague and embarrassing if there is inconsistency amounting
to contradiction between the summons and the documents
relied upon as
the basis of the claim.
[8]
In its particulars of claim, the City claims indemnification against
Vumatel, placing reliance of the wayleave permit, yet the
same
document exculpates Vumatel, because the latter is not listed as one
the service providers that performed the works.
[21]
In this case, the question turns on whether
the City is contradicting itself when it states in its plea to the
plaintiff’s
case, which is incorporated in the third-party
notice to Vumatel, that Vuma IT was the service owner who was
conducting the installation,
yet on its third-party particulars of
claim it states that Vumatel was the party that provided the same
service.
[22]
The City contends that there is no
contradiction, in that the City’s pleaded case is that Vumatel
was conducting fibre installation
work at Beacon Valley in terms of
the wayleave permit. In my view, on the pleadings as they are, this
contention cannot be sustained.
The City pleaded that the second
defendant (Vuma IT) was the party who was conducting the fibre
installation, and in so pleading,
it relied on the wayleave permit
that lists Vuma IT as the service owner. Nowhere does the name of
Vumatel come into play.
[23]
It is hardly disputable that Vuma IT
(Pty) Ltd and Vumatel (Pty) Ltd are objectively speaking, two
distinct incorporated entities
or persons. In my view, if in its
admission in one set of pleadings the City avers that Vuma IT is the
party who performed the
service that attracts indemnity, yet in the
third party the City claims against a different party in the person
of Vumatel relying
on the same cause of action, there is
inconsistency amounting to contradiction. These contradictions are
irreconcilable.
[24]
Further, the fact that it has not been
pleaded that it is Vuma IT, alternatively Vumatel or vice versa, who
rendered the service
fortifies the contradiction and has an effect of
destroying the cause of action against one party if the other is
identified as
the responsible party. On the pleadings as they are, it
is inconceivable that both parties rendered the same service. In
circumstance,
my view is that the inconsistency and contradiction
referred to above renders City’s pleadings vague and
embarrassing.
[25]
The
above is not enough for the exception to succeed. An exception that
is grounded on the averment that summons is vague and embarrassing
requires a two-fold consideration. The first enquiry is whether the
pleadings are vague, and the second is whether the vagueness
leads to
embarrassment that causes prejudice to the other party.
[9]
Prejudice arises where the excipient cannot plead or properly prepare
for trial.
[10]
[26]
In this case, the excipient contends that
it is prejudiced in that it cannot plead on the face of contradiction
that leaves it with
a dilemma to guess which meaning to ascribe to
the two contradictions and which to remove. To be practical in this
case, one can
imagine that the question is which whether to plead
assuming that it is VUMA IT who indemnified the City or it is Vumatel
who appears
nowhere in the list of the service providers that the
City admitted were installing the duct.
[27]
It has been argued on behalf of the City
that the entirety of the exception turns on a single narrow factual
contention advanced
by Vumatel that VUMA in the permit does not refer
to and cannot be identified as Vumatel. That being the case, so goes
the argument,
any uncertainty would be cleared by evidence at trial
and therefore this is not an issue that should be dealt with by
exception.
[28]
It
is indeed correct that courts are reluctant decide exceptions in
respect of fact bound issues.
[11]
However, in my view, the exception is not based on a fact bound issue
but rather based on who correct the party to sue. This is
discernible
from the pleading themselves. One cannot argue that one will clear
such contradiction by evidence on trial. Importantly,
by the time the
matter goes on trial, the excipient must have pleaded to clear and
uncontradictory pleadings.
[29]
In light of the above, I am of the view
that the City’s particulars of claim in their current form, are
vague and embarrassing,
so much so that Vumatel is prejudiced, in
that it is unable to plead as the City’s particulars of claim
are founded on contradictory
summons vis-à-vis the wayleave
permit that the claim is based on.
[30]
The second ground of exception that the
particulars of claim disclose no cause action against Vumatel is
based on the same issue
that has been dealt with above. It follows
that if the defect is cured this ground if exception will be moot. I
therefore find
no reason to deal with it. As I have found that the
pleadings are excipiable, it follows that the exception succeeds.
Costs
[31]
It is an established principle that costs
follow the results. I find no reason to deviate from this principle
in this case. The
first third-party has succeeded in its exception
and is therefore entitled to an award of costs on a party and party
scale.
Order
[32]
In the result, the following order is made:
1.
The exception in respect of the first
defendant’s particulars of claim against the third parties is
allowed.
2.
Leave is granted to the first defendant to
amend its particulars of claim against the third parties.
3.
The first defendant is ordered to pay costs
of the first third-party, such cost to include counsel’s costs
on High Court scale
B
ZL MAPOMA
ACTING
JUDGE OF THE HIGH COURT
Appearances
Counsel for the
Plaintiff
:
Adv MA Creig
Instructed by
: Sohn and Wood Attorneys,
Cape Town
Counsel for the
Respondents :
Adv HP Van Nieuwenhuizen
Instructed by
: Andrew de Vos Attorneys,
Cape Town
[1]
Herald
Gie v & Broadhead Inc v Harris NO 2025(2) SA 144 SCA at
paragraph 3
[2]
[2022]
ZASCA 70
(20
May 2022 at paragraph 14
[3]
Telematrix
(Pty) Ltd v Advertising Standards Authority SA [
2005]
ZASCA 73
;
2006
(1) SA 461
(SCA) para
3).
[4]
Cilliers
et al Hebstein and Van Wisen the Practice of the High Courts of
South Africa 5ed Vol 1 at 631; Jowel v Bramwell-Jones
and
Others
1998
(1) SA 386
(W)
at 899E-F)
[5]
Ocean
Echo Properties 327 CC and Another v Old Mutual Life Insurance
Company (South Africa) Ltd
[2018]
ZASCA 9
;
2018 (3) SA 405
(SCA) para 9.
[6]
Trusteed
for the Time Being of the Children’s Resources Centre Trust
and Others v Pioneer Food (Pty) Ltd and Others
[2012]
ZASCA 182
;
2013
(2) SA 213
(SCA);
2013
(3) BCLR 279
(SCA);
[2013]
1 All SA 648
(SCA)
para 36 ( Children’s Resource Centre Trust)
[7]
Venter
and Others NNO v Barritt; Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
2008 (4) SA 639
(C) at paragraph 15
[8]
Computer
Users Council of South Africa Property Holdings CC v City of
Johannesburg and Others
(3603/2013)
2023 ZAGP JHC824 (20 July 2023)
[9]
Shoprite
Checkers (Pty) Ltd v Premier of the Western Cape (unreported WCC
Case No 17351/2022 dated 1 December 2023 at paragraphs
[8] and [9];
[10]
Leviton
v Newhaven Holiday Enterprise CC 1991(2) SA 297 (C) 298I-J
[11]
Living
Hands (Pty) Ltd v Ditz
2013 (2) SA 368
(GSJ) at 374G