IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Unreportable
Case no: 056015/2025
In the matter between:
IVAN MARK GABRIEL Plaintiff
and
DELOITTE & TOUCHE HOLDINGS SA (PTY) LTD First Defendant
DELOITTE & TOUCHE Second Defendant
Coram: LOUW AJ
Heard: 5 May 2026
Delivered: 31 August 2026
Summary: Pleadings - Exceptions - Vague and embarrassing pleading - No
cause of action - Malicious prosecution claim - Distinction between facta
probanda and facta probantia - Rule 23(1) of Uniform Rules - Striking out -
Scandalous, vexatious and irrelevant matter - Rule 23(2) - Prejudice - Punitive
costs.
2
ORDER
1 The first, second, third, fourth, and sixth exceptions are upheld.
2 The plaintiff is afforded a period of 10 days to amend his pleadings, if
so advised.
3 That the following averments are struck from the plaintiff’s particulars
of claim:
3.1 The remainder of paragraph 11.10 after the first sentence;
3.2 The words in the first sentence from ‘who the’ to ‘the case’ in
paragraph 15;
3.3 Paragraphs 19, 20–26, 27–33 in toto;
3.4 Subparagraph 40.3.1 in toto.
4 The plaintiff shall pay the excipients’ costs on the attorney and client
scale, including the costs of senior counsel on scale C.
JUDGMENT
3
Louw AJ:
In
troduction
[1] This matter concerns an exception and an application to strike out
b
rought by the first and second defendants, Deloitte & Touche Holdings SA
(Pty) Ltd and Deloitte & Touche, against the plaintiff’s particulars of claim in
terms of Uniform Rule 23(1) and Rule 23(2) of the Uniform Rules. The
defendants contend that the plaintiff’s pleading is legally defective because it
either fails to disclose a cause of action or is so vague and embarrassing that
they are unable properly to plead thereto. In addition, they seek the striking
out of various portions of the particulars of claim on the basis that such
passages comprise legal argument, evidence, opinions, vexatious material and
irrelevant matter.
Factual background
[2] The plaintiff, Mr Ivan Mark Gabriel (“the plaintiff”), instituted action
proceedings against Deloitte & Touche Holdings SA (Pty) Ltd, cited as the
first defendant, and Deloitte & Touche, cited as the second defendant
(collectively, “the Deloitte defendants”). The plaintiff seeks damages arising
from the alleged malicious institution or instigation of criminal proceedings
against him amounting to approximately R38 million. The criminal
proceedings ultimately terminated in the plaintiff’s favour when he was
acquitted on 26 April 2022 following the upholding of an application in terms
of section 174 of the Criminal Procedure Act 51 of 1977.
4
[3] F ollowing service of the plaintiff’s particulars of claim dated 18 April
20
25, the Deloitte defendants delivered a notice in terms of Rule 23(1) and
(2) dated 26 May 2024 identifying alleged defects in the pleading on the basis
that certain averments are scandalous, vexatious, or irrelevant affording the
plaintiff fifteen days within which to remove the alleged causes of complaint.
The plaintiff failed or refused to remedy the identified defects and objected to
the notice in terms of Rule 23(1) and (2) on the grounds that the
aforementioned notice amounts to irregular steps. The Deloitte defendants
proceeded with their exception and application to strike out various passages
contained in the particulars of claim on 24 June 2025. They persisted with five
of six exceptions originally noted.
[4] On 28 April 2026, shortly before the matter was heard, the plaintiff
delivered a notice of intention to amend his particulars of claim in various
respects. The proposed amendments include the insertion and deletion of
certain words, the introduction of various new paragraphs, and the deletion of
a number of existing paragraphs. However, few, if any, of the proposed
amendments are directed at the grounds of complaint advanced by the Deloitte
defendants in their exceptions and striking-out application. The amendments
do not materially address, let alone cure, the defects upon which these
proceedings are founded.
[5] The issue before this Court is confined to the legal sufficiency and form
of the plaintiff’s particulars of claim. This Court is not concerned, at this stage,
with the merits of the plaintiff’s allegations that the Deloitte defendants
maliciously instituted or instigated criminal proceedings against him, nor with
whether the defendants are ultimately liable for any damages claimed.
5
Arguments before court
[
6] Mr Dyke on behalf of the Deloitte defendants, relied upon Rule 23(1),
which permits a party to take exception to a pleading on the basis that it does
not disclose a cause of action or is vague and embarrassing, provided that the
opposing party has first been afforded an opportunity to remove the cause of
complaint. The Deloitte defendants also relied upon Rule 23(2), which
permits an application to strike out matter from a pleading where such matter
is scandalous, vexatious or irrelevant and where prejudice would be
occasioned if it were allowed to remain. The striking-out application was
directed at passages alleged to contain legal argument, evidentiary matter,
opinions and irrelevant allegations.
General arguments on exception principles
[7] The Deloitte defendants’ exceptions are directed at the legal sufficiency
and formulation of the plaintiff’s particulars of claim. Counsel acting for the
Deloitte defendants, submitted that the pleading fails to comply with Rules 18
and 23 in that it does not clearly and coherently set out the material facts
necessary to sustain the causes of action relied upon. He contended that the
particulars of claim contain contradictory allegations, imprecise references to
persons and entities, inadequate averments in support of the malicious
prosecution claim, uncertainty as to the basis upon which liability is attributed
to the Deloitte defendants, and insufficient particularity regarding the
plaintiff’s alleged psychological injuries. These defects, it is argued, either
result in the particulars of claim disclosing no cause of action or render the
pleading vague and embarrassing, thereby preventing the Deloitte defendants
6
from pleading meaningfully thereto. The principal submission is that, even
a
ccepting the pleaded allegations as true, the pleading does not contain the
necessary factual averments required to sustain a legally cognisable claim
against the Deloitte defendants.
[8] In support of these propositions, counsel for the Deloitte defendants
submitted in essence that the purpose of pleadings is to define clearly and
precisely the issues that must be determined by the court and the case that the
opposing party is required to meet. Reliance was placed on GCC Engineering
(Pty) Ltd and Others v Maroos and Others 1 where the Supreme Court of
Ap
peal (‘SCA’) emphasised that pleadings serve to identify the disputes
between the parties, and that a court must adjudicate only those disputes.
[9] The Deloitte defendants’ counsel further relied on Standard Bank of SA
Ltd v Snyders and Eight Similar Cases ,2 where this Division reaffirmed the
pr
inciple that pleadings must state a party’s case with precision,3 and stressed
th
at the object of pleadings is to bring the issues clearly to the attention of
both the court and the parties. He also relied on Amalgamated Footwear &
Leather Industries v Jordan & Co Ltd 4 to argue that there is a well-established
di
stinction between material facts ( facta probanda), which must be pleaded,
and the evidence by which those facts are to be proved ( facta probantia ),
which should not be pleaded. According to counsel, substantial portions of the
particulars of claim consist of evidential matter, commentary and opinion
1 2019 (2) SA 379 (SCA) at para 22, while the SCA refe rred to Molusi and Others v Voges NO and Others
2016 (3) SA 370 (CC) at para 6.
2 2005 (5) SA 610 (C).
3 While also referring to Im prefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107C-
E and Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082.
4 1948 (2) SA 891 (C).
7
rather than concise allegations of material fact, thereby rendering the pleading
d
efective. He also pointed to Trope v South African Reserve Bank and Two
Other Cases ,5 where it was held that pleadings must be formulated with
sufficient clarity and precision to enable an opposing party properly to plead.
[10] Mr Papier, counsel for the plaintiff, submitted that Rule 23 permits a
party to except to a pleading on two grounds: first, that it is vague and
embarrassing; and secondly, that it lacks the averments necessary to sustain a
cause of action. Relying on Living Hands (Pty) Ltd and Another v Ditz and
Others,6 counsel emphasised that, when considering an except i on that a
pleading discloses no cause of action, the court must accept the pleaded facts
as true and determine whether they sustain a recognised claim in law. Counsel
further submitted that the purpose of an exception is to raise a substantive
point of law capable of disposing of the matter, and not merely to exploit
technical deficiencies in a pleading. In this regard, pleadings must be read as
a whole, an overly technical approach should be avoided, and minor defects
should, where appropriate, be remedied by a request for further particulars.
[11] The plaintiff’s counsel further relied on Merb (Pty) Ltd and Others v
Matthews and Others ,7 where the court reaffirmed that an exception on the
g
round that no cause of action is disclosed can succeed only if, on every
reasonable interpretation of the pleading, no cause of action is made out.
Counsel also referred to the distinction between facta probanda and facta
probantia. As regards vagueness and embarrassment, counsel submitted, with
reference to Merb, that the excipient must establish both that the pleading is
5 1993 (3) SA 264 (A).
6 2013 (2) SA 368 (GSJ).
7 (2020/15069) [2021] ZAGPJHC 693 (16 November 2021).
8
vague, ambiguous or capable of more than one meaning, and that such
v
agueness causes prejudice by impairing the excipient’s ability to plead
properly.
[12] Counsel for the plaintiff further submitted that it is well established that
an excipient bears the onus of demonstrating that no cause of action is
disclosed on any reasonable construction of the pleading. 8 Counsel also
co
ntended that an exception based on vagueness and embarrassment cannot
succeed unless the excipient establishes serious prejudice. 9 Reliance was
fu
rther placed on Group Five Building Ltd v Government of the Republic of
South Africa (Minister of Public Works and Land Affairs)10 and Constantaras
v
BCE Foodservice Equipment (Pty) Ltd 11 for the proposition that the
u
pholding of an exception will not ordinarily dispose of the action, as the
pleader may, in appropriate circumstances, be afforded an opportunity to
amend the defective pleading.
[13] The plaintiff’s counsel accepted that Rule 18(4) requires a pleading to
contain a clear and concise statement of the material facts relied upon, pleaded
with sufficient particularity to enable the opposing party to answer thereto. In
support of this submission, counsel relied on McKenzie v Farmers’ Co-
operative Meat Industries Ltd 12 where the Appellate Division explained that
a
cause of action comprises every fact which a plaintiff must prove, if
disputed, in order to obtain judgment. Counsel accordingly submitted that a
8 While relying on Su n Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A) and Pete’s Warehousing &
Sales CC v Bowsink Investments CC 2000 (3) SA 833 (E).
9 With reference to Le vitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) and Barloworld
Logistics Africa (Pty) Ltd v Ford 2019 (5) SA 133 (GJ).
10 1993 (2) SA 593 (A).
11 2007 (6) SA 338 (SCA).
12 1922 AD 16.
9
pleading must allege all material facts necessary to sustain the claim, but not
t
he evidence by which those facts are to be proved.
[14] Plaintiff’s counsel further submitted that, in determining an exception,
a court must accept the pleaded facts as true unless they are manifestly
untenable, relying on Marney v Watson 13 and V oget v Kleynhans .14 Counsel
al
so referred to Trope15 for the principle that an exception based on vagueness
a
nd embarrassment is directed at the manner in which a cause of action is
pleaded rather than its legal validity.
[15] Counsel for the plaintiff concluded that the ultimate consideration is
whether the impugned pleading causes prejudice to the excipient. In that
regard, reliance was placed on Standard Bank of South Africa Ltd v
Hunkydory Investments 194 (Pty) Ltd and Another ,16 where counsel is
cl
aiming this Division recognised prejudice as the decisive factor in
determining whether an exception should be upheld.
Arg
uments regarding exceptions one to four and six
[16] Regarding the first exception, the Deloitte defendants contended that
the particulars of claim, read as a whole, do not comply with Rules 18(3) and
18(4). They argued that the pleadings are difficult to follow, lack a coherent
narrative and fail to identify clearly the case that the defendants are required
to meet. Their counsel argued that the plaintiff advances mutually destructive
versions regarding who instituted or instigated the criminal prosecution. In
13 1978 (4) SA 140 (C).
14 2003 (2) SA 148 (C).
15 Above fn 5.
16 2010 (1) SA 627 (WCC).
10
paragraph 9 of the particulars of claim, the plaintiff alleges that the
p
rosecution was instigated by the Premier’s Office or the Western Cape
Department of Economic Development and Tourism (“DEDAT”); in
paragraph 36 he refers to the National Prosecuting Authority (“NPA”) or the
Director of Public Prosecutions (“DPP”) instituting and prosecuting the
criminal proceedings; and in paragraph 37 he alleges that ‘the Defendant’
instituted or instigated the proceedings. According to the Deloitte defendants,
these three different versions cannot stand together and render the cause of
action legally defective.
[17] The Deloitte defendants further complained that paragraphs 10 to 35
consist largely of a summary and criticism of evidence led in the criminal
proceedings, rather than a pleading of the material facts required to sustain a
cause of action. Counsel contends that the plaintiff has impermissibly
pleaded
facta probantia rather than facta probanda . In support of this submission,
reliance is placed on Du Toit NO and Others v Steinhoff International
Holdings (Pty) Ltd and Others and a Related Matter ,17 where this Division
af
firmed that a plaintiff is required to plead the material facts necessary to
sustain each essential element of the cause of action relied upon, and not the
evidence by which those facts will ultimately be proved.
[18] The Deloitte defendants argued that the plaintiff had failed to set out a
coherent factual foundation for the claims advanced against them. Their
counsel submitted that they are unable meaningfully to plead to what amounts,
in substance, to the plaintiff’s commentary on the evidence rather than a
concise statement of the material facts relied upon. Counsel further contended
17 [2020] 1 All SA 142 (WCC).
11
that the particulars do not make clear which of the two Deloitte defendants is
a
lleged to have engaged in the conduct complained of. For these reasons, their
council submit that the particulars of claim disclose no cause of action and
are, in any event, vague and embarrassing.
[19] Counsel for the plaintiff disagreed. He argued that the particulars of
claim, read as a whole, comply with Rule 18(4) by setting out clearly and
concisely the material facts upon which the plaintiff relies. It was argued that
paragraph 8 identifies the basis upon which the defendants are alleged to be
liable, while paragraphs 9, 36 and 37, read with paragraphs 10 to 35, disclose
a recognisable common-law claim for malicious prosecution. Accordingly,
counsel contended that the particulars of claim disclose a cognisable cause of
action and are neither vague nor embarrassing.
[20] The second exception concerns the plaintiff’s use of undefined
references throughout the particulars of claim. The Deloitte defendants’
counsel pointed to numerous paragraphs (that is, paragraphs 10.4.3; 10.4.7;
13; 14; 15; 17; 19; 21; 22; 23; 25; 26; and 27) in which reference was made
to “our client” without any explanation of who that person is. In addition,
paragraph 17 refers to “accused 1 and 2” without identifying either individual.
Counsel argued that it is impossible to determine whether “our client” refers
to one of those accused persons, both of them, the plaintiff himself, or some
other person. As a result, the defendants submit that the pleading lacks the
precision required of a proper pleading and that they cannot identify the
factual allegations to which they are expected to respond. The uncertainty is
said to render the particulars vague and embarrassing and incapable of
sustaining a proper cause of action.
12
[
21] In relation to the second exception, counsel for the plaintiff submitted
that the complaint has been rendered moot by his notice of intention to amend
the particulars of claim. The amendment will replace the words “our client”
with “the plaintiff” and “Accused 1 and 2” with “the plaintiff and Dale Peter
Millar”. Counsel accordingly contended that the basis for the second
exception no longer exists and that it should therefore be dismissed.
[22] The third exception is directed specifically at the malicious prosecution
claim. The Deloitte defendants contended that the particulars of claim fail to
plead the facts necessary to establish that Deloitte, rather than DEDAT, the
Premier’s Office, the NPA or the DPP, instituted or instigated the prosecution.
The plaintiff alleges that Deloitte prepared reports and affidavits, but the
Deloitte defendants argue that the plaintiff does not explain how the
preparation of those documents amounted to the institution or instigation of
criminal proceedings.
[23] Counsel for the Deloitte defendants further asserted that the pleading
fails to allege, with sufficient particularity, how Deloitte ‘set the law in
motion’, ‘acted without reasonable and probable cause’, or acted with ‘malice
or animo injuriandi’. Relying on Holden v Assmang Ltd,18 counsel submitted
th
at those are essential elements of a claim for malicious prosecution and must
be properly pleaded. On that basis, counsel submitted that the particulars of
claim do not contain the necessary averments to sustain a cause of action.
[24] In response to the third exception, counsel for the plaintiff in contrast
argued that the Deloitte defendants had failed to identify a proper basis for
18 2021 (6) SA 345 (SCA).
13
contending that the particulars of claim do not disclose how the Deloitte
d
efendants allegedly instigated or procured the criminal prosecution. Counsel
argued that paragraphs 3 to 36 of the particulars of claim, read cumulatively,
allege the facts upon which the plaintiff relies, and in particular that
paragraphs 34 to 36 expressly aver that Deloitte, through its employees,
provided false, unverified and unsubstantiated information to the police and
prosecuting authorities, thereby causing or instigating the criminal
proceedings against the plaintiff.
[25] Plaintiff’s counsel further argued that the cumulative effect of these
allegations falls to be assessed by the trial court when determining the merits
of the action. On that basis, it was contended that the particulars of claim
contain the necessary averments to sustain a cause of action for malicious
prosecution and are neither vague nor embarrassing.
[26] The fourth exception concerns the plaintiff’s alleged failure to
distinguish between the conduct of the various actors involved. Counsel for
the Deloitte defendants argued that the particulars of claim impermissibly
conflate the roles of Deloitte, DEDAT, the Premier’s Office, the NPA, the
DPP and the South African Police Service. According to the defendants, the
plaintiff does not identify which acts are attributed to which party and does
not explain the legal basis upon which the Deloitte defendants can be held
liable for conduct allegedly committed by organs of state or public officials.
[27] Thus, the plaintiff has failed to plead a recognisable cause of action
against the Deloitte defendants. Alternatively, even if a cause of action could
be discerned, the allegations were contradictory and uncertain, rendering the
particulars vague and embarrassing. In support of this contention, counsel
14
relies on E OH Mthombo (Pty) Ltd v Clarke and Others ,19 where the court held
th
at a pleading is vague if it is incapable of conveying a clear, single meaning.
Counsel again referred to Trope20 where contradictory allegations were
r
ecognised as being inherently vague and embarrassing.
[28] In response to the fourth exception, counsel for the plaintiff submitted
that the Deloitte defendants had failed to identify clearly the basis upon which
it is alleged that the particulars of claim do not specify the conduct attributed
to them or the legal basis for their liability. Counsel argued that paragraphs 3
to 6 of the particulars of claim set out the relevant conduct of the defendants’
employees and that the claim is founded on the defendants’ own alleged
wrongdoing through those employees, rather than on any alleged liability for
the conduct of state officials.
[29] Plaintiff’s counsel further contended that the particulars of claim
adequately plead the factual basis for the claim and that the defendants’
exception does not comply with Rule 23(3) in failing to set out clear and
concise grounds for the complaint. Accordingly, it was submitted that the
particulars of claim disclose a cause of action and are neither vague nor
embarrassing.
[30] As the fifth exception was abandoned, the sixth exception is the only
remaining exception for determination. It concerns the plaintiff’s claim for
damages arising from alleged psychological harm. The Deloitte defendants
19 [2023] JOL 61834 (GP).
20 Above fn 5.
15
note that, although the plaintiff alleges in paragraph 44 that he suffers from
v
arious psychological disorders, he does not identify those disorders.
[31] The Deloitte defendants contend that this lack of particularity renders
the claim vague and embarrassing, as they are unable to assess the nature of
the alleged injuries or plead meaningfully thereto. They accordingly submit
that the sixth exception should be upheld.
[32] In response to the sixth exception, the plaintiff’s counsel submitted that
the complaint will be cured by the notice of intention to amend the particulars
of claim. The proposed amendment provides further detail regarding the
psychological disorders allegedly suffered by the plaintiff and the future
medical expenses claimed. Counsel accordingly contended that the sixth
exception should thus be dismissed.
Arguments on striking out
[33] The Deloitte defendants also seek to strike out a number of passages
from the particulars of claim on the basis that they contain argument, rhetoric,
opinion and evidence rather than material facts. They contend that these
passages are irrelevant to the issues in dispute and prejudice the Deloitte
defendants because they cannot meaningfully plead thereto. The Deloitte
defendants accordingly sought orders upholding the exceptions and striking
out the offending passages from the particulars of claim.
[34] Counsel for the Deloitte defendants relied on Flentov v Trappler and
Others,21 where Lekhuleni J summarised the principles applica b
le to
21 (16925/2021) [2023] ZAWCHC 18 (6 February 2023).
16
applications to strike out. Lekhuleni J held that scandalous, vexatious or
i
rrelevant allegations may be struck out, particularly where they contain
damaging and unsubstantiated assertions. However, the power to strike out is
discretionary, and the decisive consideration is whether the impugned
allegations cause prejudice to the applicant. Counsel further emphasised the
court’s statement that, for purposes of Rule 23, matter is irrelevant only if it
is unrelated to an issue arising on the pleadings. The enquiry is whether the
allegations sought to be struck out are relevant to the issues in dispute, and
where there is doubt as to relevance, the matter should not be struck out.
[35] In particular, the Deloitte defendants seek to strike out the remainder of
paragraph 11.10 after the first sentence as being argumentative and irrelevant,
and part of paragraph 15 as being vexatious and irrelevant. The Deloitte
defendants further seek to strike out paragraph 19, paragraphs 20 to 26 in their
entirety, paragraphs 27 to 35 in their entirety, and paragraph 40.3.1. Counsel
contends that these paragraphs consist largely of a narration and criticism of
evidence arising from the criminal proceedings, together with legal argument
and commentary. According to the defendants, the plaintiff has pleaded
evidence rather than the material facts necessary to sustain the causes of
action, with the result that the paragraphs are irrelevant and embarrassing and
ought to be removed from the pleading.
[36] In response to the striking-out application, counsel for the plaintiff
submitted that the allegations following the first sentence of paragraph 11.10
are historical facts relevant to the criminal proceedings instituted against the
plaintiff. Counsel argued that the allegations are neither argumentative nor
irrelevant and accordingly do not constitute matter that falls to be struck out.
17
Counsel for the plaintiff submitted that the allegation that Mr Nigel Holmes
w
as found by the criminal court to be an unreliable and untruthful witness
who twisted and lied about the facts is based on a specific judicial finding and
is therefore neither fictitious nor scandalous in paragraph 15. Plaintiff’s
counsel further argued that the allegation is directly relevant to the plaintiff’s
claim for malicious prosecution, particularly the element of animus iniuriandi,
and should accordingly not be struck out.
[37] Counsel for the plaintiff submitted that paragraph 19, read together with
paragraphs 20 to 26 of the particulars of claim, forms part of the historical and
factual background to the plaintiff’s claim for malicious prosecution. These
allegations are said to be relevant to the issues in dispute and supportive of
the cause of action pleaded against the Deloitte defendants. Counsel
accordingly contended that the Deloitte defendants’ characterisation of the
allegations as rhetorical, evidential, argumentative and irrelevant is
unfounded, and that their relevance and weight are matters to be determined
by the trial court rather than on a striking-out application.
[38] Counsel for the plaintiff submitted that paragraphs 27 to 35 also contain
historical facts relevant to the claim for malicious prosecution. It was further
contended that the Deloitte defendants have failed to demonstrate any
prejudice arising from those allegations remaining in the particulars of claim,
with the result that there is no basis for striking them out. Counsel for the
plaintiff submitted that paragraph 40.3.1 is directly relevant to the plaintiff’s
claim for future loss of income and the damages allegedly suffered, including
harm to his reputation. It was further contended that the defendants have failed
18
to demonstrate any prejudice arising from the allegation remaining in the
p
articulars of claim, and accordingly there is no basis for it to be struck out.
[39] In conclusion, counsel for the plaintiff submitted that the impugned
allegations are neither scandalous, vexatious nor irrelevant. Read in the
context of the particulars of claim as a whole, they are relevant to the
plaintiff’s claim and capable of proof at trial. Counsel further contended that
the Deloitte defendants have failed to demonstrate any prejudice arising from
the allegations remaining in the pleading. Accordingly, the striking-out
application should be dismissed.
[40] The Deloitte defendant’s counsel relied on Du Toit v Du Toit 22 in
s
upport of the striking-out application, submitting that this Court should
remove matter which is irrelevant, argumentative, vexatious or otherwise
inappropriate to a pleading. Counsel argued that large portions of the
particulars of claim constitute legal argument, opinion and evidential narrative
rather than material facts and should therefore be struck out.
[41] Counsel for the plaintiff disagreed, and in contrast submitted that Rule
23(2) confers a discretion on the court to strike out scandalous, vexatious or
irrelevant matter, but only where the impugned allegations cause prejudice to
the applicant. 23 Counsel further focused on the definitions of scand a
lous,
vexatious and irrelevant matter, and submitted that relevance must be assessed
with reference to the issues raised on the pleadings. In this regard, reliance
was placed on Meintjes v Wallachs Ltd,24 where the court held that allegations
22 1958 (2) SA 354 (N) at 356C-F.
23 Reliance was placed on Ti tty’s Bar & Bottle Store (Pty) Ltd v ABC Garage (Pty) Ltd and Others 1974 (4)
SA 362 (T) and Vaatz v Law Society of Namibia 1991 (3) SA 563 (Nm).
24 1913 TPD 278.
19
should not be struck out if they are relevant to an issue to be determined, even
i
f their truth remains to be established at trial.
[42] Plaintiff’s counsel also relied on Golding v Torch Printing and
Publishing Co (Pty) Ltd 25 and Rail Commuters Action Group v Transnet Ltd
t
/a Metrorail 26 for the principle that allegations cannot be regarded as
i
rrelevant where evidence in support thereof would be admissible at trial.
Finally, counsel submitted that the decisive consideration remains prejudice
and that a striking-out application should not succeed unless the applicant
demonstrates prejudice in the conduct of its defence.
Issues for determination
[43] The primary issue is whether the plaintiff’s particulars of claim disclose
a valid cause of action against the Deloitte defendants. In deciding that
question, this Court must determine whether the pleading contains the
material factual averments necessary to sustain a recognised claim in law,
accepting the pleaded facts as true. If it does not, the particulars of claim are
excipiable and the exceptions must be upheld.
[44] However, if this Court finds that a cause of action has been pleaded, it
must then determine whether the particulars of claim are vague and
embarrassing. The question is whether the allegations are pleaded with
sufficient clarity and particularity to enable the Deloitte defendants to
understand the case against them and plead thereto.
25 1948 (3) SA 1067 (C).
26 2006 (6) SA 68 (C).
20
[
45] A further issue is whether substantial portions of the particulars of claim
constitute matter that ought not properly to appear in a pleading. This Court
must therefore consider whether the impugned passages amount to legal
argument, evidentiary material, personal opinion, vexatious allegations or
other irrelevant matter, rather than concise statements of the material facts
upon which the plaintiff seeks to rely.
[46] Finally, this Court must determine whether the Deloitte defendants
have established a proper basis, in terms of Rule 23, for the relief sought. That
entails deciding whether the exceptions should be upheld, whether the
impugned passages should be struck out, and what consequential order should
follow in relation to the plaintiff’s particulars of claim.
Applicable legal principles and discussion
Rule 23(1): Exceptions
[47] Rule 23(1) permits an exception to be taken to a pleading on the
grounds that it is vague and embarrassing or that it lacks the averments
necessary to sustain a cause of action or defence. The purpose of an exception
is not to exploit technical deficiencies in a pleading but to raise a substantive
issue of law which, if upheld, may dispose of the matter or a portion thereof.
[48] The principles applicable to exceptions are well established. In Living
Hands, Makgoka J summarised the applicable approach. 27 In considering an
27 Living above fn 6 at para 15.
21
exception that a pleading discloses no cause of action, the court must accept
t
he pleaded facts as true and determine whether, on those facts, a recognised
claim in law is disclosed. Pleadings must be read as a whole and not in a
piecemeal fashion. An overly technical approach is to be avoided, as it
undermines the utility of the exception procedure as a mechanism for
disposing of legally unsustainable claims.
[49] In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA the SCA stressed that exceptions should be dealt with
sensibly and not in an over-technical manner. 28 An excipient bears the onus
of
showing that upon every reasonable interpretation which the pleading can
bear, no cause of action is disclosed. 29 The material facts which must be
pl
eaded are the facta probanda and not the facta probantia . The classic
definition of a cause of action remains that set out in McKenzie, namely every
fact which must be proved to sustain a right to judgment. 30
[5
0] Where an exception is taken on the ground that a pleading is vague and
embarrassing, a different enquiry arises. In Trope the Appellate Division held
that such an exception is directed at the formulation of the cause of action
rather than its legal validity. 31 The accepted test was articulated in Jo
well v
Bramwell-Jones and Others .32 The court must first determine whether the
pl
eading is vague, in the sense that it is ambiguous, contradictory,
meaningless or capable of more than one reasonable interpretation. If so, the
court must then determine whether the vagueness causes prejudice to the
28 2006 (1) SA 461 (SCA) at para 3.
29 This principle finds further support in Su n Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A) at 183E-
F.
30 McKenzie abve fn 12 at 23.
31 Trope above fn 5 at 269I-270E.
32 1998 (1) SA 836 (W) at 902I-903A.
22
excipient by preventing a proper response to the pleading. In my view,
p
rejudice is indeed the decisive consideration and an exception founded on
vagueness and embarrassment will not succeed unless the excipient
demonstrates prejudice of a degree that impairs its ability properly to plead or
prepare its case. However, Hunkydory,33 in my view, is not authority for that
pr
oposition as was advanced by plaintiff’s counsel. That decision concerned
summary judgment proceedings and did not deal directly with the role of
prejudice in determining an exception.
Rule 23(2): Applications to strike out
[51] Rule 23(2) provides for the striking out of matter in a pleading that is
scandalous, vexatious or irrelevant. Unlike an exception, which attacks the
legal sufficiency or formulation of a cause of action, a striking-out application
is directed at particular allegations contained in a pleading.
[52] The power to strike out is discretionary. Even where matter falls within
one of the categories contemplated by the rule, a court is not obliged to strike
it out.34 The exercise of the power remains a matter for judic
ial discretion.
[53] The generally accepted definitions of scandalous, vexatious and
irrelevant matter were stated in Vaatz.35 Scandalous matter is matter that is
ab
usive or defamatory; vexatious matter is matter intended to harass or annoy;
and irrelevant matter is matter unrelated to the issues requiring determination
in the proceedings. In determining relevance, the pleading must be considered
33 Hunkydory above fn 16.
34 In Titty’s Bar above fn 23 at 368F-H.
35 Vaatz above fn 23 at 566C-E.
23
as a whole. In Me intjes,36 it was held that allegations should not be struck o ut
if they are relevant to an issue to be determined, even though the party relying
on them may ultimately fail to prove them. Similarly, in Golding the court
held that matter will generally not be regarded as irrelevant where evidence in
support thereof would be admissible at trial.37A court should therefore be slow
to
strike out allegations where their relevance is arguable or where they form
part of the factual matrix underlying the claim.
[54] Most importantly, prejudice remains the cornerstone of a striking-out
application. In Living the court held that scandalous, vexatious or irrelevant
matter should only be struck out where the applicant will be prejudiced if the
offending material remains. 38 The same principle was endorsed in this
Di
vision in Flentov, where my brother Lekhuleni J stressed that the ‘key
consideration is that of prejudice’. 39 Matter should not be struck out simply
be
cause it is objectionable; the applicant must show that allowing it to remain
will cause identifiable prejudice.
[55] More recently, in Du Plessis NO and Others v Standard Bank of SA Ltd
and Others,40 a full court in this Division reaffirmed that the co urt’s power to
strike out objectionable matter is a discretionary one. The full court further
considered the nature of scandalous, vexatious and irrelevant matter within
the context of Rule 6(15), observing that the enquiry is directed at the
36 Meintjies above fn 24 at 285-286.
37 Golding above fn 25 at 1090.
38 Living above fn 6 at para 76.
39 Flentov above fn 21 at para 7.
40 (A262/2025) [2026] ZAWCHC 10 (20 January 2026).
24
character of the impugned allegations and their relevance to the issues before
t
he court.41
As
sessing prejudice
[56] The distinction between Rule 23(1) and Rule 23(2) is therefore clear.
An exception under Rule 23(1) is concerned with whether a cause of action
or defence is legally sustainable or sufficiently pleaded. A striking-out
application under Rule 23(2) is concerned with whether particular allegations
are scandalous, vexatious or irrelevant and whether their continued presence
in the pleading causes prejudice to the opposing party. In both exceptions and
striking-out applications, prejudice is often the decisive consideration, but the
nature of the prejudice differs depending on the remedy sought.
[57] In relation to a pleading alleged to be vague and embarrassing, the
prejudice enquiry is whether the impugned pleading is so unclear,
contradictory, ambiguous or lacking in particularity that the excipient cannot
reasonably be expected to plead to it.
[58] In Jowell the court explained that after establishing vagueness, the court
must determine whether the vagueness causes embarrassment of such a nature
that the excipient is prejudiced in pleading. 42 The prejudice must be serious
an
d practical, not merely technical. Similarly, in Trope the Appellate Division
held that the enquiry is directed at the formulation of the case and whether the
excipient can ascertain with sufficient certainty the case it is required to
41 (A262/2025) [2026] ZAWCHC 10 (20 January 2026) at pa ras 44 and 50.
42 Jowell above fn 32 at 902I-903A.
25
meet.4 3 The question is therefore whether the excipient can ascertain with
sufficient certainty the case it is required to meet and plead thereto. If the
pleading is sufficiently clear to enable the formulation of a meaningful plea,
an exception based on vagueness and embarrassment will not succeed. By
contrast, where the complaint is that no cause of action is disclosed, the
primary enquiry is not prejudice but whether the pleading contains the
material averments necessary to sustain a recognised cause of action in law.
Absent such averments, the pleading is excipiable irrespective of whether
prejudice can be shown.
[59] In applications to strike out, the decisive consideration is whether the
impugned allegations cause prejudice to the opposing party. Scandalous,
vexatious or irrelevant matter will not be struck out merely because it is
objectionable; the applicant must demonstrate identifiable prejudice if the
allegations are allowed to remain. At the same time, courts adopt a practical
rather than technical approach and will be slow to uphold exceptions or
striking-out applications based on purely formal defects. The ultimate enquiry
is whether the impugned matter prejudices the fair and proper determination
of the issues between the parties.
[60] The authorities demonstrate that prejudice, for purposes of Rule 23,
must be real and practical rather than speculative or technical. Prejudice may
arise where a party is required to plead to allegations that are so unclear,
ambiguous or contradictory that a meaningful response cannot reasonably be
formulated, or where the pleading fails to identify the case to be met with
43 Trope above fn 5 at 269I-270E.
26
sufficient particularity. In the context of a striking-out application, prejudice
m
ay also result from the inclusion of scandalous allegations that unnecessarily
impugn a party’s reputation, or from irrelevant matter that expands the issues,
increases costs, and requires a party to answer allegations unrelated to any
issue in dispute. Conversely, courts have consistently held that mere irritation
or annoyance does not constitute prejudice, nor does the fact that allegations
are evidential in nature or may ultimately prove to be incorrect. Where the
relevance of allegations is reasonably arguable, the matter should ordinarily
be left for determination at trial rather than struck out at the interlocutory
stage.44
[6
1] The decisive consideration, both in an exception based on vagueness
and embarrassment and in an application to strike out under Rule 23(2), is
whether the impugned pleading causes prejudice to the excipient or applicant.
Such prejudice must be real and substantial. In the case of a vague and
embarrassing pleading, the prejudice lies in the inability properly to identify
the case to be met and to plead thereto. In the case of a striking-out application,
the prejudice lies in the adverse effect occasioned by the continued presence
of scandalous, vexatious or irrelevant matter in the pleading. Mere technical
objections or dissatisfaction with the manner in which a case has been pleaded
will not suffice.
Application to the facts before this court
[62] I agree with the Deloitte defendants’ counsel that the plaintiff’s
particulars of claim are excipiable. On a proper reading thereof, the pleading
44 See Meintjes above fn 24 at 285-286; Golding above fn 25 at 1090; Living above fn 6 at para 76; and
Flentov above fn 21 at para 7.
27
is deficient in material respects. It does not clearly and coherently set out the
f
actual basis upon which liability is attributed to the Deloitte defendants and,
at times, is both vague and embarrassing. Indeed, I found it necessary to read
the particulars of claim repeatedly in an attempt to ascertain precisely who
was alleged to have instituted or instigated the criminal proceedings against
the plaintiff and what role each of the various individuals and entities was
alleged to have played.
[63] The particulars of claim are characterised by substantial portions of
evidential matter, commentary, opinion and argument rather than concise
allegations of material fact. Regrettably, the pleading is replete with facta
probantia instead of facta probanda. It lacks the precision and clarity required
by the Uniform Rules and fails adequately to identify the material facts upon
which the plaintiff relies. Material allegations are pleaded in a manner which
is ambiguous, imprecise and, in some instances, contradictory. The result is a
pleading that does not define the issues with the degree of certainty required
of proper pleadings.
[64] While pleadings may include sufficient historical background to enable
the opposing party to understand and answer the case it is required to meet,
they are not intended to serve as a repository of evidence. 45 The difficulty
ar
ises when what is presented as background is, in truth, facta probantia rather
than facta probanda. A pleading should set out the material facts upon which
the claim is founded, not the evidence by which those facts are to be proved
45 For a similar view, see My burg, Krone en Kompagnie Bpkt (in liquidation) v Ko-operatieve Wijnbouwers
Vereenigining van Zuid-Afrika Bpkt 1923 CPD 389 and Secretary For Finance Esselmann 1988 (1) SA 594
(SWA) at 596H and cited in Van D E Van Loggerenberg Erasmus: Superior Court Practice Volume 2,
Second Edition (loose-leaf) Service 29, 2026 at page D1 Rule 18–8A.
28
at trial. When evidential detail, commentary and argument supplant concise
a
llegations of material fact, the issues become obscured and the opposing
party is deprived of a fair opportunity to plead meaningfully thereto.
[65] Whether a pleading contains sufficient particularity depends on the
circumstances of each case. The test is whether it defines the issues with
enough clarity to enable the opposing party to know the case it must meet.
Thus, a plaintiff relying on a complex contract may need to identify the
relevant contractual provisions, while a plaintiff relying on delict must plead
the material facts establishing the elements of the delict. 46
[6
6] Plaintiff’s counsel correctly submitted that an exception may be
founded either on the ground that a pleading is vague and embarrassing or on
the ground that it lacks the averments necessary to sustain a cause of action.
Counsel was also correct in submitting that a court must read a pleading as a
whole, avoid an unduly technical approach, and, when considering an
exception that no cause of action has been disclosed, accept the pleaded facts
as true for purposes of determining whether they sustain a recognised claim
in law.
[67] Those principles are uncontroversial. The difficulty for the plaintiff is
that the defects identified by the Deloitte defendants are neither technical nor
inconsequential. They go to the heart of the pleading. The particulars of claim
fail, with sufficient clarity and precision, to set out the material facts necessary
to sustain the causes of action relied upon. The pleading contains confusing
references to various persons and entities, uncertainty regarding the basis
46 See Erasmus above fn 45 at page D1 Rule 18–11 and the authorities relied upon.
29
upon which liability is attributed to the Deloitte defendants, and insufficient
p
articularity concerning aspects of the plaintiff’s alleged damages, including
his psychological injuries. The cumulative effect of these deficiencies is that
the particulars of claim are capable of more than one interpretation and do not
enable the Deloitte defendants to ascertain with certainty the case they are
required to meet.
[68] The Deloitte defendants, as excipients, bear the onus of establishing the
defects complained of and, where relevant, the prejudice resulting
therefrom.47 An exception will succeed only if the excipient show s
that, on
every reasonable interpretation, the pleading discloses no cause of action or
defence.48 Its purpose is to dispose of legally unsustainable c ases at an early
stage and to prevent serious prejudice arising from defective pleadings. 49 In
my
view, the Deloitte defendants have discharged that onus. The lack of
clarity and precision in the particulars of claim prevents the Deloitte
defendants from delivering a meaningful plea and from properly identifying
the issues requiring adjudication. Given that damages in excess of R38 million
are claimed, the prejudice occasioned by requiring the Deloitte defendants to
plead to the particulars of claim in their present form is manifest. To do so
would undermine one of the primary purposes of pleadings, namely the proper
definition of the issues between the parties.
[69] While it is so that pleaded facts must ordinarily be accepted as true for
purposes of deciding an exception, that principle presupposes the existence of
a coherent and intelligible pleading. In the present matter, the allegations are
47S ee Erasmus above fn 45 at page D1 Rule 23–7 and the authorities relied upon.
48 See Erasmus above fn 45 at page D1 Rule 23–5 and the authorities relied upon.
49 Ibid.
30
pleaded in such an inaccurate, diffuse and confusing manner that the factual
b
asis of the plaintiff’s case cannot readily be discerned. The difficulty is not
that the pleaded facts are improbable; rather, it is that the material facts are
obscured by a mass of evidential material, argument and irrelevant matter. In
these circumstances, the pleading fails to comply with the requirements of
Rules 18 and 23. This difficulty was underscored by the plaintiff’s c o unsel’s
own submissions, particularly in relation to the third exception, where it was
effectively acknowledged that the Deloitte defendants were required to wade
through numerous scattered paragraphs in order to ascertain the substance of
the case sought to be pleaded. That is precisely the mischief which the rules
governing pleadings are intended to prevent.
[70] In my view, the plaintiff was afforded an opportunity to remove the
causes of complaint identified by the Deloitte defendants, but elected not to
do so. Although a notice of intention to amend was subsequently delivered
just before this Court heard the matter, it will not meaningfully address the
bulk of the defects raised in the exceptions and striking-out application. Had
the particulars of claim been properly amended when those complaints were
first raised, much of the present litigation may well have been avoided.
Litigation is costly and court resources are limited. Courts should not be
required to comb through lengthy and convoluted pleadings in an attempt to
distinguish material averments from evidential matter. Parties are entitled to
pleadings drafted with the degree of care, precision and accuracy expected of
legal practitioners, particularly where claims of considerable magnitude are
involved. The numerous inaccuracies and misdescriptions contained in the
particulars of claim cannot, in my view, be dismissed as mere typographical
31
errors. They reflect a lack of precision that has contributed materially to the
p
resent difficulties.
[71] The plaintiff’s notice of intention to amend the particulars of claim
proposes to include the insertion and deletion of certain words, the addition
of new allegations and the removal of a number of existing paragraphs.
However, few, if any, of the proposed amendments are directed at the
substantive complaints advanced by the Deloitte defendants. At best for the
plaintiff, the proposed amendments appear to address only limited aspects of
the second and sixth exceptions. While some of the proposed insertions may
pr
ovide greater clarity to certain allegations and render parts of the pleaded
cause of action more readily understandable, they do not materially address
the principal grounds upon which the exceptions are founded.
[72] In any event, the proposed amendment is not presently before this
Court. The exceptions must be determined on the basis of the particulars of
claim as they stand. A court assesses the excipiability of a pleading with
reference to the pleading before it and not by reference to proposed
amendments which have yet to be effected or adjudicated upon. The notice of
intention to amend therefore does not alter the outcome of the present
proceedings.
[73] The defects raised in the first, second, third, fourth and sixth exceptions
remain extant in the particulars of claim presently before the Court.
Accordingly, the proposed amendments provide no basis for refusing the
relief sought by the Deloitte defendants. In the result, those exceptions fall to
be upheld.
32
[
74] The Deloitte defendants also rely on Rule 23(2), which permits the
striking out of scandalous, vexatious or irrelevant matter where prejudice
would result if such matter were allowed to remain. As already noted,
Flentov50 confirms that prejudice is the decisive considerati o n and that only
matter unrelated to an issue arising on the pleadings is liable to be struck out.
Where doubt exists as to relevance, the matter should ordinarily remain.
[75] Applying those principles, I am satisfied that the requirements for
striking out have been established. Save for paragraphs 34 and 35, there is, in
my view, no genuine doubt regarding the irrelevance and prejudicial nature of
the impugned allegations. The passages complained of consist largely of legal
argument, evidential material, opinion and other allegations which do not
properly belong in particulars of claim and which serve no legitimate purpose
in defining the issues for determination by the court. The application to strike
out must therefore substantially succeed.
Costs
[76] Counsel for the Deloitte defendants submitted that the defendants had
made out a proper case for both the exceptions and the application to strike
out. He argued that, despite being afforded an opportunity to cure the defects
in the particulars of claim, the plaintiff failed to do so. Counsel further
contended that the excipiable and impugned allegations prejudice the Deloitte
defendants’ ability to plead meaningfully and accordingly sought that the
relief be granted, together with a punitive costs order on the attorney and client
scale, including the costs of senior counsel.
50 Flentov above fn 21.
33
[
77] The award of costs is a matter within the discretion of the court. A
punitive costs order is warranted where a litigant’s conduct merits the court’s
disapproval and has unnecessarily increased the costs of the litigation.51 In the
pr
esent matter, the plaintiff was afforded an opportunity to remove the causes
of complaint identified by the Deloitte defendants but failed to do so.
Although a notice of intention to amend was later delivered, it did not
meaningfully address the majority of the defects raised in the exceptions and
striking-out application. As a result, the Deloitte defendants were compelled
to incur the costs of these proceedings unnecessarily.
[78] Given the serious and pervasive defects in the particulars of claim, the
plaintiff’s failure to remedy them when afforded the opportunity to do so, and
the consequent waste of costs and court time, I am satisfied that this is an
appropriate case for a punitive costs order. The plaintiff should therefore pay
the Deloitte defendants’ costs on the attorney and client scale, including the
costs of senior counsel on Scale C.
Order
[79] The following order is made:
1 The first, second, third, fourth, and sixth exceptions are upheld.
51 See Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (2) SA 621
(CC) para 3; Plastic Converters Association of South Africa on behalf of Members v National Union of
Metalworkers of South Africa and Others (2016) 37 ILJ 2815 (LAC) para 46; and Public Protector v South
African Reserve Bank 2019 (6) SA 253 (CC) paras 9 and 97. In In re Alluvial Creek Ltd 1929 CPD 532 at
535, it was observed that an attorney and client costs order may also be justified where a litigant’s conduct
has caused the opposing party unnecessary trouble and expense which it ought not to bear.
34
2 The plaintiff is afforded a period of 1.0 days to amend his
pleadings, if so advised.
3 That the following averments are struck from the plaintiffs
particulars of claim:
3 .1 The remainder of paragraph 11 .10 after the first sentence;
3.2 The words in the first sentence from 'who the' to 'the case'
in paragraph 15;
3.3 Paragraphs 19, 20- 26, 27- 33 in toto;
3.4 Subparagraph 40.3.1 in toto.
4 The plaintiff shall pay the excipients' costs on the attorney and
client scale, including the costs of senior counsel on scale C.
Appearances
For plaintiff:
Instructed by:
MLOUW
ACTING JUDGE OF THE IDGH COURT
Adv G Papier
Roelf Jumat Attorneys Inc, Cape Town
35
For defendants: Adv B C Dyke SC
Instructed by: Deneys, Johannesburg c/o Deneys, Cape Town