IN THE HIGH COURT OF SOUTH AFRICA, 
GAUTENG DIVISION, PRETORIA

CASE NO:  16592/2018

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:

STEPHEN MPHEDI MADIRO	Plaintiff	

and 		

MADIBENG LOCAL MUNICIPALITY	First Defendant	
		
BOJANALA PLATINUM DISTRICT MUNICIPALITY	Second Defendant	

(This judgment is handed down electronically by circulation to the parties’ legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 12 October 2021.)

JUDGMENT

MALINDI J:

Introduction

[1]	The applicant is the first defendant in the main action and the respondent the plaintiff. For convenience the parties shall be referred to as in the main action.

[2]	The plaintiff filed his summons, with the particulars of claim on 24 February 2020. The first defendant, to whom this application is relevant, filed its notice of intention to defend on 23 March 2020. After the plaintiff had filed his notice of bar on 5 June 2020, the first defendant filed its notice to remove the cause of complaint in terms of Rule 23(1) and Rule 30(2)(b) on 11 June 2020.

[3]	After the plaintiff had failed to remove the causes of complaint the first defendant filed its notice of exception and irregular step on 17 July 2020. The plaintiff then filed a notice of intention to amend his particulars of claim in terms of Rule 28(1) on 14 August 2020.

[4]	The first defendant has objected to the intended amendment of 14 August 2020 on the grounds that it is a belated attempt to cure the defects complained of in the Rule 23 exception and the Rule 30(2)(b) complaint of irregular step.

[5]	On 18 September 2020, the plaintiff delivered a second notice of intention to amend in terms of Rule 28(1), to which the first defendant did not object. The plaintiff duly filed his amended particulars of claim on 8 October 2020.

[6]	A notice of bar was delivered to the first defendant on 10 November 2020 to the latest amended particulars of claim.

Issues for determination

[7]	The first defendant contends that its exception is still live and a determination in that regard has to be made by the Court. The plaintiff contends that the exception has been overtaken by events and the only live issue is whether the first defendant should plead to the amended particulars of claim, which it has not done and therefore stands barred. In response to the plaintiff’s contention the first defendant submits that as it has objected to the plaintiff’s Rule 28 notice of 14 August 2020, the plaintiff has taken another irregular step by delivering another Rule 28(1) notice and subsequently amending his particulars of claim without having launched an application to amend after the object to that notice.

Rule 28

[8]	Rule 28(4) stipulates that if an objection to a proposed amendment which complies with subrule (3) is delivered the party wishing to amend may lodge an application for leave to amend. The first defendant’s objection did comply with subrule (3) and the plaintiff failed to comply with subrule (4), that is, to file an application for leave to amend thereafter. The provisions of subrule (4), though couched in discretionary terms, have to be complied with before an envisaged amendment is affected. I agree with counsel for the first defendant that what the plaintiff has done by filing a second Rule 28 notice was to cynically attempt to circumvent its failure to have brought this application within the 10-day period. This was also stated as the reason for the second Rule 28 by counsel for the plaintiff in argument.

[9]	Furthermore, the first defendant indicated in its notice of objection that it persists with its objections in terms of Rule 23 and Rule 30 notices. This was in keeping with subrule (8) which states that any party affected by an amendment “may also take the steps contemplated in Rules 23 and 30” after an amendment is effected. I am of the view that this provision applies in this case even though the amendment had not been effected at this stage. The reiteration of its position kept the exception alive.

[10]	I agree with Sutherland J, in Nqabeni Attorneys Incorporated v God Never Fails Revival Church and Others that:
“When a plaintiff accomplishes an amendment to a declaration, and no plea has yet been filed, the defendant is put on terms to comply with Rule 22(1) and thereby file a plea within 20 days.”
[11]	In the case of the first defendant in this case it had already filed a pleading in the form of an exception. Rule 28(8) requires an adjustment of the already filed pleadings to respond to the amendment. The first defendant has elected to stand by its exception and therefore it has to be adjudicated since the second Rule 28 was an irregular step and consequently the purported amendment to the particulars of claim. The notice of bar delivered on 10 November 2020 is consequently an irregular step too. The plaintiff had no right to take any further steps until the exception had been disposed of. This is so because if an excipient loses it is ordered to file a plea within the time permitted by the Rules or within a time set by the Court.

[12]	In the circumstances I proceed to consider the exception.

The exception

[13]	As stated above, the plaintiff’s opposition to the exception on the basis that the exception was taken against the initial particulars of claim and therefore that there is no exception against the amended particulars of claim of 18 October 2020 is unsustainable. The submission that the first defendant should have taken a fresh Rule 23 and Rule 30 exception is wrong.

[14]	The plaintiff contends that his amended particulars of claim “contain the necessary material facts necessary for an enforceable claim”. This matter will be judged on the initial particulars of claim since the purportedly amended particulars of claim were an irregular step.

[15]	I must observe that the plaintiff has made an oblique admission that the relevant particulars of claim are vague and embarrassing and do not disclose a cause of action or lack of necessary particularity hence the filing of the amended version.

[16]	The first defendant has summarised its exception as follows:

16.1	The plaintiff failed to set out the constitutional and statutory obligations that he alleges that the first defendant failed to fulfil;
16.2	No allegations are set out in support of the first defendant’s failure of duty of care;
16.3	No allegations and particulars or facts to support the alleged first defendant’s failures and omissions on its obligations are pleaded;
16.4	No particularity of the first defendant’s failures regarding the failures of the installed sewage pipeline are stated;
16.5	No particularity about the sewerage spillage after the pipeline was installed regarding when it was installed, by who, or whether the first defendant is liable;
16.6	No particulars or identification of the responsible defendant for the substandard pipeline are pleaded;
16.7	There are no particulars about the contamination of the water supply regarding when it started;
16.8	No particulars are pleaded regarding causation of the alleged losses of cattle, defects in the housing structure and other amenities; and
16.9	The allegations for damages do not meet the particularity required by Rule 18(10).
[17]	In Masire Monnamme Koos v Rustenburg Local Municipality and Another (Koos), Gutta J sets out in succinct terms what the legal principles are in cases raising an exception on the ground that the particulars of claim are vague and embarrassing and/or lack averments necessary to sustain a cause of action. This matter is identical to the Koos case.

[18]	In Koos the plaintiff had failed to allege on what basis it contends that the first defendant had a legal duty and had failed to plead wrongfulness of the alleged conduct or omissions of the first defendant. It was held in Koos that the plaintiff must allege fact from which wrongfulness can be inferred against each or specific defendant and that if a specific duty of care is relied on it must be stated. The plaintiff has not alleged that wrongfulness can be inferred from the nature of the loss suffered.

[19]	Gutta J held that non-compliance with Rule 18(10) renders the particulars of claim vague and embarrassing when a globular amount is claimed under general damages without apportioning discernible heads of claim.

[20]	The plaintiff’s argument boils down to the allegation that the first defendant is liable by its failure to comply with “the Court imposed obligations in terms of a Court Order granted in his favour on 6 June 2018”.

[21]	The Court Order obliges the first and second defendants to collectively carry out certain “steps and actions” required to prevent any future occurrences after having taken initial actions to stop such occurrences. The plaintiff’s counsel contended herself with the submission that it is within the knowledge of the two defendants to know what each other’s duties, functions and obligations are in respect of what the Court Order obliges them to do. This cannot be a sufficient answer in view of the authorities referred to above. The first defendant is entitled to be apprised of the case against it in the particulars of claim in respect of its legal duty and wrongfulness of its conduct or omissions.

[22]	Regarding the plaintiff’s response, he submits that it is not necessary to refer specifically to the statute or section relied on in the particulars of claim and that it is sufficient that the facts pleaded justify the conclusion that the provisions of the statute apply. Secondly, he submits that the amended particulars of claim has cured the complaints in this regard. In respect of his failure to set out the first defendant’s duty of care towards him he relies on the “Court imposed obligation” in terms of the Court Order.

[23]	As I have held that the amended particulars of claim constitute an irregular step it does not come to the plaintiff’s avail that he has removed the causes of complaint thereby. Even if I am wrong in this regard, the provided amendments do not remove the causes of complaint. The grounds of opposition referred to in paragraph 22 above run through the plaintiff’s heads of argument and are unsustainable.

[24]	The plaintiff has relied upon, amongst others, McKelvey v Cowan for the proposition that a pleading is not excipiable “if evidence can be led which can disclose a cause of action alleged in the pleadings” (emphasis added). As I have found that the plaintiff has failed to plead a cause of action against the first defendant, this case does not come to his assistance.
Conclusion

[25]	I come to the conclusion therefore that the plaintiff’s particulars of claim are excipiable and that the application must succeed. The costs will follow the result. I find no conduct on the part of the plaintiff in the proceedings to justify a punitive costs order. The costs of 14 April 2021 will be borne by the plaintiff because he only appeared on the day of the hearing to register his opposition to the application.

[26]	I therefore make the following order:

1.	The first defendant’s exception on the grounds that the particulars of claim discloses no cause of action and are vague and embarrassing, is upheld;

2.	The plaintiff is afforded ten (10) days from the date of this judgment to amend its particulars of claim, failing which plaintiff’s particulars of claim shall be struck out;

3.	The plaintiff is to pay the costs of the exception, including the reserved costs for 14 April 2021 on a party-to-party scale.

_____________________________________
G MALINDI
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION
JOHANNESBURG

COUNSEL FOR THE PLAINTIFF: 	Adv Debbie Theodorellis

INSTRUCTED BY: 		Langenhoven Pistorius 
		Maduhapula Attorneys

COUNSEL FOR FIRST DEFENDANT: 	Adv Lebogang Kutumela

INSTRUCTED BY: 	Gildenhuys Malatji Inc

DATE OF THE HEARING:	29 July 2021

DATE OF JUDGMENT:	12 September 2021