IN THE NORTH GAUTENG HIGH COURT, PRETORIA
	(REPUBLIC OF SOUTH AFRICA)

				CASE NUMBER: 41469/2012

In the matter between:

SIMON NKUBA MOKONE			PLAINTIFF/APPLICANT

and

INVESTEC BANK LIMITED		DEFENDANT/RESPONDENT

				JUDGEMENT

TLHAPI

[1]	For convenience the parties shall be referred to as plaintiff and the defendant. 
In an action instituted by the defendant under case number 16838/2012 the plaintiff 
filed an exception to the defendant’s particulars of claim, which resulted in the
defendant unconditionally withdrawing its action against the plaintiff and tendering 
the costs of such withdrawal. In this action the plaintiff sued for damages suffered as 
a result of such action instituted by the defendant,  where he alleged that the action 
was brought for intentional and malicious. For reasons given below I shall only deal 
with the exception raised in respect defendant’s response to paragraph 3 of the 
particulars of claim. 

[2]	Plaintiff’s exception reads as follows:

	“					1.

1.1	Plaintiff’s description in the present claim   bears similar description in 
the defendant’s description of him in its erstwhile claim under case no. 
16838/20124...
	1.2	Defendant admits having instituted the erstwhile case against the
 plaintiff under case no. 16838/12;
1.3	However, in light of the aforesaid admission and in contradiction 
thereof, defendant pleads that it has no knowledge of the allegation in relation 
to the plaintiff’s description and accordingly denies them and puts them to the 
proof thereof;
1.4	This denial does not disclose a defence to the plaintiff’s claim in that it 
is incompetent in law and under the circumstance;

 						2.

2.1	Defendant has admitted all of the essential elements of plaintiff’s 
allegation in relation to the delict committed by the former in paragraph 3 of 
the particulars of claim.
2.2	These admissions coupled with the necessary implications flowing 
therefrom do not disclose a defence to the plaintiff’s claim.
2.3	The defendant’s concomitant denial of the cause of action in paragraph 
4 of the plea fails to disclose a defence to the plaintiff’s claim as they 
constitute negative pregnant in one of more of all of the following 
considerations viz:-
It is open to interpretation that the defendant
		
2.3.1	denies instituting the erstwhile case against the plaintiff;
		2.3.2	admits instituting the erstwhile case against the plaintiff but 
denies animo iniuriandi on its part;
		2.3.3	denies the grounds alleged by the plaintiff which inform the 
foundation of animo iniuriandi.

	2.4	Consequently the plea does not disclose a defence because 
defendant:-
		2.4.1	has already admitted institution of the erstwhile case without 
qualification;
2.4.2	in its unspecified denials in paragraph 4 of its plea does not 
discount or negative the legal effects of its admissions of plaintiff’s 
allegation and legal conclusions flowing from paragraph 3 of the 
particulars of claim.

2.5	The defendant’s allegation of the marriage between the enormity of the 
claim amount and the abuse of process has neither legal basis nor foundation
in fact and ultimately lacks particularity to disclose any defence to plaintiff’s
claim”

The plaintiff prayed for the setting aside of the defendant’s plea, granting
leave to the defendant to amend its plea and costs of the exception.

[3]	The defendant pleaded as follows:

	“PARAGRAPH 3

		3.1	The defendant instituted action against the plaintiff under cased 
number: 16838/2012
		3.2	The plaintiff noted an exception to the defendant’s particulars of 
claim whereafter the defendant withdrew the action and tendered the wasted 
costs.
		3.3	Save as for the aforesaid, the defendant denies each and every 
allegation herein;

	PARAGRAPH 4.1 TO 4.6
	The defendant denies each and every allegation herein as if specifically 
traversed 	

[4]	It was submitted in the Heads of Argument filed on behalf of the plaintiff that 
the exceptions were brought in terms of Rules 18(5) and 22 (2) of the Rules of Court. 
During argument I informed counsel that in my view the first exception taken was of 
no consequence and did not prejudice the plaintiff to such a degree that the plea 
should be interfered with, and  that they deal with the second exception. Rule 22 (2) 
should be read together with rule Rule22 (3), the rules provide:

Rule 22 (2)
“	The defendant shall in his plea either admit or deny or confess and 
avoid all material facts alleged in the combined summons or declaration or 
state which of the said facts are not admitted and to what extent, and shall 
clearly and concisely state all material facts upon which he relies”

Rule 22 (3)
	“	Every allegation of fact in the combined summons or declaration which 
is not stated in the plea to be denied or admitted, shall be deemed to be admitted. If 
any explanation or qualification of any denial is necessary, it shall be stated in the 
plea”

[5]	The plaintiff argued that the malicious nature was compounded by the fact 
that not only did the defendant institute action against the plaintiff but also the 
cessionary both whom were represented by the same firm of attorneys.

[6]	It was submitted for the defendant that while it was intended to argue the 
exception under Rule 22, the argument for the plaintiff was such that it presented as 
one where the exception was based purely on grounds that the defendant’s 
pleadings were vague and embarrassing. The applicable rule was that the exception 
raised was one in terms of Rule 23 which dealt with vague and embarrassing 
pleadings, and that the plaintiff had failed to seek clarification of defendants 
pleadings by way of notice allowing the defendant to remove the cause of complaint 
before taking the exception as was required by the said rule. At this stage of the 
proceedings and in addressing the exception it is not appropriate to address issues 
whether plaintiff’s action constitutes an abuse of process.

Rule 23 (1)

“	Where any pleading is vague and embarrassing or lacks averments 
which are necessary to sustain a ..defence, the opposing party 
may....deliver an exception thereto.....Provided that where a party 
intends to take an exception that a pleading is vague and embarrassing 
he shall ...by notice afford his opponent an opportunity of removing the 
cause of complaint....  	

[7]	The main submissions on behalf of the plaintiff appear under point 3 of the 
Heads of Argument where counsel discusses ‘legal principles in regard to 
exceptions’. It was submitted at paragraph 3:

‘A pleading lacks averments which are necessary to sustain a defence... if a 
 pleading does not justify the conclusions drawn therein......thus an exception 
founded upon the contention that a plea lacks averments necessary to sustain 
a defence, is designed to obtain a decision on a point of law which will 
dispose of the case in whole or in part and avoid the leading of unnecessary 
evidence at the trial”
	“an exception founded upon the contention that a plea lacks averments
necessary to sustain a defence, is designed to obtain a decision on a point of 
law which will dispose of the case in whole or in part, and avoid the leading of 
unnecessary evidence

[8]	As I see it the cause of complaint is not only levelled against the failure to 
make averments necessary to sustain a defence, it is the manner in which the 
defendant couched its denial of the required animus iniuriandi while in same vain 
admitting certain elements of what was required to be proved by the plaintiff.

	The defendant has admitted it instituted the action, that it withdrew the action 
after plaintiff had successfully excepted to its particulars of claim on the grounds that 
it did not have locus standi. Another element which the plaintiff has to prove in order 
to be successful is that the case was initiated for an improper purpose. In my view it 
is this latter element at which the complaint is levelled which was not satisfactorily 
pleaded by the defendant.

[7]	While a plethora of cases were referred to in the heads of argument for the 
plaintiff,  addressing Rule 22, I am of the view that there are grounds for an 
exception however, I am inclined to agree with counsel for the defendant that  the 
real cause of complaint was that the defendants plea was vague and embarrassing. I 
arrive at this conclusion having had regard to the submissions for the plaintiff  and 
according to what was stated paragraph 5 above and the cases referred to therein. 
In Erasmus’s Superior Court Practice a commentary on Rule 22 at B1-148A the 
following is stated:

“Shall be deemed to be admitted ............where a plaintiff is embarrassed by an 
apparent contradiction arising from the absence of a precisely targeted denial of a 
particular averment in the particulars of claim, the plaintiff’s remedy lies in a notice to 
the defendant to cure a vague and embarrassing pleading in terms of rule 23(1)”  

In this matter no such notice was given. The requirement to give notice is obligatory.
I have not considered the issue whether such notice can still be given since it shall 
have been made out of time. There is however nothing precluding the plaintiff from 
seeking condonation. 

[8]	In the circumstance the following order is given:

	‘The exception is dismissed with costs.

__________
TLHAPI V.V
(JUDGE OF THE HIGH COURT)

MATTER HEARD ON				: 	26 MARCH 2014
JUDGMENT RESREVED ON			:	26 MARCH 2014
ATTORNEYS FOE THE APPLICANT		:	MOKONE & MOKONE ATT
ATTORNEYS FOR THE RESPONDENT	:	GILDENHUYS MALATJI INC