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IN THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

 

(1)       REPORTABLE: YES/NO

(2)       OF INTEREST TO OTHER JUDGES: YES/NO

(3)       REVISED. YES/NO

 

DATE: 05/08/2021

       CASE NO: 41425/2020

 

 

In the matter between:

THOMAS CHRISTOPHER VAN ZYL N.O.                                First Plaintiff/Respondent

GONASAGREE GOVENDER N.O.                                              Second Plaintiff/Respondent

[In their capacities as the duly appointed joint liquidators of Valley of the Kings Thabo Motswere Proprietary Limited (in liquidation)]

And

MORRISON ETIENNE SMIT                                                   Defendant/Applicant

JUDGMENT

ANTULAY AJ:

[1]        This matter has been allocated to the above Honourable Court for adjudication.

The Application is 2 fold.

           1.1      The Applicant seeks condonation for the late filing of its Notice of      Exception

1.2       Should the condonation be granted by the above Honourable Court, the          Applicant seeks an order to render the Respondents Particulars of Claim Expiable on the grounds that it is Vague and Embarrassing.

 

 [2]      The common cause facts are as follows:

2.1      The summons in the present matter was served on the Defendant on 07 September 2020 and a notice of

2.2       Intention to defend was served on 21 September 2020.

2.3       The Applicants Notice of Exception was served on the 20 October 2020.

2.4       On 23 October 2020 the Respondent delivered a Notice in terms of Rule 30 (Irregular Step) in respect of the late filing of the Exception

2.5       The present application for condonation was brought on 3 November 2020.

           

[3]        Applicants argument advanced for condonation

3.1       The Applicant alleged that he arranged to consult with counsel on 12 October 2020, in order to prepare the plea in question.

3.2       The reason for the delay in consultations was that there were scheduling conflicts between counsels, tasked with drafting the plea.

3.3       The only suitable date for consultation was 12 October 2020, it is only then did the Applicant become aware of the need to file the exception.

3.4      The Applicants act was not wilful, intentional, or reckless disregard for the rules

3.5       The Applicant was only made aware of the need for an exception on 12 October 2020, prior thereto his intent was to prepare for the filing of a plea.

 

[4]        Respondents argument advance in respect of the condonation

4.1       The Respondents in the main action under the above case number are the duly appointed joint liquidators of Valley of the Kings Thaba Motswere Proprietary Limited [in liquidation]

4.2       The Notice of Exception was delivered out of time. On 21 October 2020 the Plaintiff consequently delivered a Notice of Irregular Step in terms of Rule 30

4.3       The Notice of Irregular Step states as follows:

1.         The Plaintiff's Combined Summons was served on the Defendant on 7 September 2020.

2.         The Defendant served his notice to remove cause for complaint in terms of Rule 23(1)(a) — which the Defendant refers to as his "Notice of Exception" — on the Plaintiffs' attorneys of record on 20 October 2020. This date is 30 days after the Defendant was served with the Combined Summons.

3.         Rule 23(1)(a) of the Uniform Rules of Court stipulates that the Notice of Exception should have been delivered within 10 days of receipt of pleadings.

4.         The Defendant's Notice of Exception is out of time as it was delivered 30 days after the Defendant received the Combined Summons.

4.4       Despite the Notice of Irregular Step, the Applicant impermissibly delivered an exception in terms of Rule 23 (1), dated 13 November 2020 ("the Exception" )."

4.5       The Exception has been put up in order to delay and frustrate the Respondents.

4.6       The Exception is not pursued in good faith and it constitutes an abuse     of process that should not, with respect, be countenanced by the above Honourable Court.

 

[5]        The honourable court looked at the issue of condonation prior to making a decision on the Exception. If the condonation is not granted the Honourable court will have no reason to entertain the issue of the exception in this Judgement

 

[6]        In the strict reading of Amended Rule 23(1), a party is given 10 days from receipt of the particulars of claim to serve his rule 23(1)(a) notice. The period given to the defendant to serve such a notice is the same as the period given to him to file his notice of intention to defend.

 

[7]        The exception is therefore an irregular step and can be set aside

 

[8]        The above honourable court refers to Hill NO and Another v Brown[1], Roger J states the following :-

[11]     the amended rule is unambiguous. In practice, sensible plaintiffs are unlikely to object to a rule 23(1)(a) notice delivered a few days later than the strict limit imposed by the amended rule, but for present purposes the important point is that the framers of the rules plainly did not intend that a defendant should have a leisurely period to assess whether or not particulars of claim are vague and embarrassing. In the circumstances, a defendant can hardly complain if, after the expiry of the 20-day period allowed for a plea or exception, his opponent delivers a notice of bar having the effect of making the subsequent service of rule 23(1)(a) notice irregular. In such a case, a rule 23(1)(a) served after delivery of the notice of bar would, ex hypothesi, be at least 20 days out of time.

 

[12]     The court has a discretion whether or not to set aside an irregular step, and the presence or absence of prejudice is usually decisive. In my view, the plaintiff will clearly be prejudiced if the rule 23(1)(a) notice is allowed to stand. The defendant, as appears from his attorney’s heads of argument, considers that the notice is valid, from which it would follow that on the defendant’s view he would be entitled to file an exception if the plaintiff fails to remove the alleged causes of complaint.

 

[13]     On a proper construction of the rules, however, the defendant has not filed a proper response to the notice of bar and should now be under bar. If the irregularity of the rule 23(1)(a) notice is confirmed by this court and the notice set aside, the parties will know where they stand. The defendant, if he wishes to oppose the case, will have to apply in terms of rule 27 to have the bar lifted and will need to show good cause. Whether or not the defendant will be able to show good cause is not something on which I can form an opinion, because I do not know what facts the defendant will advance in support of a rule 27 application.

 

[9]        The court ultimately still has a discretion in the granting of the condonation Often the application for condonation is treated as a matter of a right. That is not correct. Condonation is not to be had for the mere asking.

 

[10]      The parties seeking the condonation must make out a case entitling them to the court’s indulgence and show sufficient cause. That requires a full explanation for the non-compliance. The party seeking condonation must prove good cause and not merely allege it.

[11]      The court further asked the question whether the Respondent did suffer any prejudice from the non-timeous notice.

 

[12]      An applicant must ‘satisfy’ the court that condonation is warranted

 

[13]     Taking into account the above, and taking into account the submissions in this case, the court is satisfied that the application for condonation be granted for the following reasons;

13.1    The Applicant alleged that he arranged to consult with counsel on 12 October 2020, in order to prepare the plea in question. In this instance the applicant has shown that he did, indeed, arrange a consultation with his advocate on 12 October. This indicates the probability that he was not merely resting on his laurels and that he was proactive in defending his case.

13.2    The applicant alleges a scheduling conflict between his legal representatives which resulted in the only suitable date for consultation being 12 October 2020. It is reasonable to accept that this may have been out of the control of the applicant and as such a court would not easily prejudice him as a result.

13.3    On a balance of probabilities and taking regard of the applicant’s actions subsequent, it is probable that the applicant was not wilfully, intentionally or recklessly, disregarding the rules.

13.4    It was only on the 12^th of October that the Applicant was made aware of the need for an exception, (prior thereof his intent was to prepare for the filling of a plea) and after consultation.

 

[14]      However, the application for condonation cannot prejudice the Respondent with the resultant costs occasioned thereby since it is clear that it was as a result of the Applicant’s doing that the exception was filed late.

According the costs for the condonation application are awarded to the Respondent.

 

The Exception

 

[14]     The Honourable Court now deals with the grounds for exception by the Applicant.

 

[15]      Uniform Rule 23(1) reads as follows:

"(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 the filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of paragraph (f) of subrule (5) of rule (6):...

 

[16]      Applicant refers to 7 cause and complaints that renders the Particulars of claim expiable.

16.1    The Applicant states that he is not in possession of the alleged agreements were the Valley of the Kings borrowed money from the Government of Fujairah in the sum of $500 000.00.

16.2    The Applicant was not in possession of the amended memorandum of incorporation in respect of the Valley of Kings.

16.3    The Respondents allege that the company entered into a lease agreement with Gamevest as well as a joint venture with the latter. The Respondents however fail to state whether either of these agreements were oral or reduced to writing or where same was concluded.

16.4    Similar to the memorandum I agreements referred to in 16.3 above, the Respondents pleads that Gamevest concluded written agreements with "certain investors" however fail to attach any of the alleged agreements nor plead the specific terms referred or contents to be used in support of their cause of action.

16.5    The Respondents alleges that Valley of Kings suffered a loss due to the "appropriation" of the assets and business and corporate opportunities of the company by Gamevest, the loss allegedly suffered amounts to R7 359 415.20, but failed to indicate how this is computed

16.6    The Respondents pleaded that a person by the name of Andre Voster loaned and advanced an amount of R 1 350 000.00 to Gamevest however failed to plead whether the loan agreement was oral or in writing, and if the latter, then the Plaintiffs have failed to attach a copy of the agreement. It was also not pleaded when, where and with whom the agreement was concluded.

16.7    The Respondents allege that they are entitled to an order as against the Defendant, in his personal capacity, for payment of the sum of R19 188 476.71, but failed to indicate how this is computed

 

[17]      In Southernpoort Developments (Pty) Ltd v Transnet LTD[2] the court formulated the test on exceptions as follows:

 

“1.        In order for an exception to succeed, the excipient must establish that the pleading is excipiable on every interpretation that can reasonably be attached to it.

2.         A charitable test is used on exception, especially in deciding whether a cause of action is established, and the pleader is entitled to a benevolent interpretation.

3.         The Court should not look at a pleading ‘with a magnifying glass of too high power’.

4.         The pleadings must be read as a whole; no paragraph can be read in isolation.

In order to succeed with an exception, the excipient needs to satisfy the court that it would be seriously prejudiced in the event that the exception should not be upheld.”

 

[18]     An exception that a pleading is vague or embarrassing will not be upheld unless the excipient will be seriously prejudiced. The excipient has a duty to persuade the court that the pleading is excipiable on any interpretation that can be attached to it. An exception that a pleading is vague and embarrassing is not directed at a particular paragraph within a cause of action: it goes to the whole cause of action, which must be demonstrated to be vague and embarrassing. Such an exception strikes at the formulation of the cause of action and not its legal validity. An exception that the pleading is vague and embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations were not expunged. The court has to consider as a test for vagueness 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. The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced.

 

[19]      In Madlala v City of Johannesburg and another[3] the plaintiff fell into an open manhole on a pavement on a public street and sustained injury. She sued the defendants for damages on the ground that they were, at all material and relevant times, responsible for the design, maintenance, repairs and development of the road network, footways, traffic mobility and management of manhole covers. Five main grounds for exception was raised by the defendant:

 

1.    The plaintiff referred to a duty of care in several paragraphs but failed to clarify whether she referred to the same duty or more than one in addition to or in the alternative to each other.

2.    The plaintiff stated that she sustained a fracture on her ankle and toe but later complained about pain in her femur and it wasn’t clear whether the plaintiff referred to the same or alternative injuries.

3.    The plaintiff only provided globular figures.

4.    The plaintiff failed to provide key information with regards to her past and future employment.

5.    The plaintiff did not state whether her pain and suffering and disfigurement was temporary or permanent.

The court held that the defendants would not suffer any serious prejudice should the exception not be upheld and therefore the exception was dismissed.

 

[20]      Similarly this Hounourable court when assessing whether the exception should be upheld looked at whether the information sort by the Applicant could be obtained in any other manner, whether the Respondents failure to attach a document or its failure to detail how amounts are commuted caused the Applicant severe prejudice.

 

[21]      The Applicant could have served the Respondents with a R35(12), R35(14), R35(3), R21, all these remedies were available to the Applicant.

 

[22]      This Honourable court does not find that the Applicant was prejudices due to the exceptions raised by the Applicant.

 

Conclusion

[23]     The honourable court concludes that in allowing the Condonation the exceptions are still dismissed.

Costs

[24]     The Respondents have requested costs of 2 Counsels, the court does not deem it necessary for the purposes of this application to allow the cost of 2 Counsels

 

Order

[25]      The following order is made:

1. The Applicant application is dismissed

2. The Applicant is to pay the costs including the cost of one counsel

 

T B ANTULAY AJ

Acting Judge of the High Court

Gauteng Division of the High Court, Pretoria

Electronically submitted

 

Delivered:                     This judgment was prepared and authored by the Judge whose name is reflected 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 be 05/08/2021.

Date of hearing:            The matter was heard by way of video conferencing or otherwise, the matter may be determined accordingly. The matter was set down for the motion court week of 02/08/ 2021.

Date of judgment:       05 August 2021

 

APPEARANCES:

 

PLAINTIFF:               M Coetzee Instructed by J Bouwer of Moonshine Attorneys

 

DEFENDANT:          PL Uys instructed by the State Attorney, Pretoria         

 

 

 

 

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