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REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

CASE NO: 13374/2020

(1)      REPORTABLE: NO

(2)      OF INTEREST TO OTHER JUDGES: NO

(3)      REVISED: NO

DATE: 4 July 2024

 SIGNATURE

In the matter between:

 

BIZZ TRACERS (PTY) LTD                                                1^st Excipient1^st Applicant

 

RATLHOGO PETER CALVIN RAFADI                            2^nd Excipient/2^nd Applicant

 

And

 

ESKOM HOLDINGS SOC LTD                                                  Respondent/Plaintiff

 

 

JUDGMENT

 

 

Delivered: This judgment was prepared and authored by the Judge whose name is reflected on 2 July 2024 and is handed down electronically by circulation to the parties/their legal representatives by e-mail and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be10h00 on 2 July 2024.

 

MNISI AJ

 

[1]      This is an exception to the plaintiff’s particulars of claim taken by the first and second defendants (“the excipients/defendants”). The defendants complain that the particulars of claim has failed to catalogue and allege that the first defendant’s breach of the contract and its right to cancel and claim restitution which accrued to it due to the breach. Moreover, the defendants complain that the particulars of claim lack averments necessary to sustain a cause of action.

 

[2]      Before I deal with the exception raised by the defendants, an overview of the applicable general principles distilled from case law is necessary. It is trite that when considering a challenge of a pleading at exception stage, the pleading must be considered as a whole.[1] During exception proceedings where the challenge to the pleading is made on both recognised grounds (that the pleading is vague and embarrassing and that it lacks averments necessary to sustain a cause of action), a two stage approach is followed, for the complaint that the pleading is vague and embarrassing calls for an enquiry to cover the situation where, if a cause of action appears from the pleading, there is some defect or incompleteness in the manner in which it has been formulated which results in embarrassment to the defendant.

 

[3]      Our courts, in cases of that kind, uphold exceptions as to permit the action to proceed towards trial based on it would only go to compound the embarrassment, and quite likely give rise to a confusing or argumentative plea. It would ultimately conduce to a situation where  case manager or trial judge would likely be faced with some difficulty in delimiting the issues for the purpose of judicially managing the conduct of the trial. It is not only the second defendant that would be prejudiced if the pleading were to stand, but also the court.[2]

[4]       It is important to deal with the applicable principles in an Exception, as stated in Erasmus, Superior Court Practice[3]

 

“(a)  In each case the court is obliged first of all to consider whether the pleading does lack particularity to an extent amounting to vagueness. Where a statement is vague it is either meaningless or capable of more than one meaning. To put it at its simplest; the reader must be unable to distil from the statement a clear, single meaning.

 

(b)  If there is vagueness in this sense, the court is then obliged to undertake

  a quantitative analysis of such embarrassment as the excipient can show is caused to him or her by the vagueness complained of.

 

(c)   In each case an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if he or she is compelled to plead to the pleading in the form to which he or she objects. A point may be of the utmost importance in one case, and the omission thereof may give rise to vagueness and embarrassment, but the same point may in another case be only a minor detail.

 

(d)   The ultimate test as to whether or not the exception should be upheld is whether the Excipient is prejudiced.

 

(e)   The onus is on the excipient to show both vagueness embarrassment and amount to prejudice amounting to embarrassment.

 

(f)   The Excipient must make out his or her case for embarrassment by reference to the pleadings alone.

 

(g)  The Court would not decide by way of Exception the validity of an agreement relied upon or whether a purported contract may be void for vagueness.”

 

[5]      The degree of precision with which a pleading must be formulated depends on the circumstances of each case.[4] A plaintiff acts in breach of the abovementioned requirements if its particulars of claim include, for example, extracts from and references to other documents and sources or if those statements made in the pleading are not material to any clearly disclosed cause of action.

 

[6]       It is trite that the defendants bear the onus of proof that the particulars of claim do not address the cause of action and amount to vagueness which causes embarrassment. In Vermeulen v Goose Valley Investments (Pty) Ltd,[5] Marais JA stated as follows:

“It is trite law that an exception that a cause of action is not disclosed by a pleading cannot succeed unless it can be shown that ex facie the allegations made by the plaintiff and any other document upon which his cause of action may be based, the claim is (not may be) bad in law. . . .”

 

[7]     It is also a well-established principle 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.

 

[8]     In Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 913B-G  it was explained thus:

 

“…The Plaintiff is required to furnish an outline of its case. This does not mean that the Defendant is entitled to a framework like a crossword puzzle in which every gap can be filled by logical deduction. The outline may be asymmetrical and possess rough edges not obvious until explored by evidence. Provided the defendant is given a clear idea of the material facts which are necessary to make the cause of action intelligible, the plaintiff will have satisfied the requirements”.

 

[9]      An exception to a pleading on the ground that it lacks averments necessary to sustain a cause of action requires the excipient to show that upon every interpretation which the pleading in question can reasonably bear, no cause of action is disclosed. If the excipient cannot show this, the exception ought not to be upheld.

 

[10]     It is further trite law that an exception that a cause of action is not disclosed by a pleading cannot succeed unless it be shown that ex facie the allegations made by a plaintiff and any document upon which his or her cause of action may be based, the claim is (not may be) bad in law.[6]

 

[11]    I am of the view that this exception automatically fails due to the fact that the plaintiff has set out the cause of action succinctly and intelligible in a manner that the defendants can plead. The defendants can admit or deny the allegations or confess and avoid the allegations, and most importantly, raise a special plea. I am of the view that the particulars of claim has addressed all the required forms of pleading and does not form any embarrassment on the part of the defendants.

 

[12]     In this case, the particulars of claim are clear that the plaintiff relies on the written agreement on 19 October 2015. It also sets out that such an agreement did not comply with the provisions of section 217 and the relevant provisions of the Public Finance Management Act, 1999. The plaintiff then attached the written agreement and pointed out, amongst other things, the material terms of the agreement relied upon to substantiate the claim.

 

[13]    The defendants argue that a party wishing to claim for a declaratory order that a contract be cancelled and for restitution as a basis for its cause of action, it is necessary to catalogue, allege and unequivocally prove;

 

a)          A breach of contract;

 

b)          The right to cancel had accrued to the material breach of the contract; and

 

c)          A clear and unequivocal notice of rescission was conveyed to the defendant.

 

[14]     There is absolutely no merit in this exception raised that the particulars of claim lacks averments necessary to sustain a cause of action. The defendants’ exception is clearly misplaced as the plaintiff has made a case of what constitutes its cause of action in compliance with the Rules of this Court. I accordingly surmise that the complaint is nothing else but a nit-picking exercise as the particulars of claim does address the root cause of the action and is neither vague nor embarrassing.

 

[15]   The plaintiff claims an amount of R28, 162 409.50 from the defendants. At paragraph 8 of the particulars of claim, plaintiff sets out how the defendants became liable to the plaintiff.  Surely, the issues raised by the defendants in this interlocutory application is a matter to be addressed at trial and indeed the plaintiff does have to provide evidence of the amount due by the defendants, however the defendants can plead and put the plaintiff to proof thereof than to merely raise an exception.

 

[16]   The defendants bears the onus to satisfy the court that the pleadings are excipiable, however in this application, they have failed to make out a clear case that the plaintiff’s particulars of claim are excipiable. The Supreme Court of Appeal has held in Telematrix (Pty) Ltd t/a Matric Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at 465H that:

“Exceptions should be dealt with sensibly. They provide a useful mechanism to weed out cases without legal merit. An over-technical approach destroys their utility.”

 

[17]    In Frank v Premier Hangers CC 2008 (3) SA 594 (C), Griesel J stated as

          follows at para [11] page 600:

 

“In order to succeed in its exception, the plaintiff [Excipient] has the onus to persuade the court that, upon every interpretation which the defendant’s [Respondent] plea and counter-claim [Particulars of Claim] can reasonably bear, no defence or cause of action is disclosed. Failing this, the exception ought not to be upheld.” [own insertion]

 

[18]   The exceptions that have been brought by the defendants have not met the above requirements, instead they have proven that the plaintiff’s case is indeed with merit and the nitpicking exercise destroyed the very nature of the exception.

 

[19]    As pointed out above, the plaintiff’s particulars of claim, as pleaded are complete and valid and contains all the averments which are necessary to sustain a cause of action.

 

[20]    In the circumstances, the defendants have failed to make out a case for the relief sought and accordingly the plaintiff seeks orders that the defendants’ exception be dismissed with costs.

 

Costs

 

[21]     Counsel for the plaintiff urged this Court to grant costs on an attorney and client scale. She argued that the conduct of the defendants is a clear abuse of process, which the Court has a duty to eliminate in order to protect its dignity and processes and I am inclined to agree.

 

[22]     In Public Protector v South African Reserve Bank  2019 (6) SA 253 (CC) at para 8, Mogoeng CJ noted that “[c]osts on an attorney and client scale are to be awarded where there is fraudulent, dishonest, vexatious conduct and conduct that amounts to an abuse of court process.”

 

[23]     In Plastics Convertors Association of SA on behalf of Members v National Union of Metalworkers of SA and Others (2016) 37 ILJ 2815 (LAC) at para 46, the Labour Appeal Court stated:

 

“The scale of attorney and client is an extraordinary one which should be reserved for cases where it can be found that a litigant conducted itself in a clear and indubitably vexatious and reprehensible manner. Such an award is exceptional and is intended to be very punitive and indicative of extreme opprobrium.”

 

[24]     It is my considered view that this application was brought mala fide, which has caused an unnecessary delay in finalising the matter, and therefore it is worthy of this Court’s rebuke.

 

[25]    I therefore make the following order:

 

1.     The application is dismissed.

 

2.     The applicants/defendants/excipients to pay costs of this application on an attorney and client scale jointly and severally, the one paying the other to be absolved.

J Mnisi

Acting Judge of the High Court

 

Delivered:  This judgment was handed down electronically by circulation to the parties’ legal representatives by e-mail. The date for hand-down is deemed to be 10h00 on 2 July 2024.

Counsel for the Excipients:	Adv T. Mhlanga
Instructed by:	Mohanoe Inc.
Counsel for the Respondent:	Adv X. Hilita
Instructed by:	Matamela Attorneys

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