Republic of South Africa In the High Court of South Africa Western Cape High Court, Cape Town

CASE NO: 4326/2009
In the matter between:

DARREN HALLIGAN	Plaintiff	
and		
RAITH GOURMET TRADING (PROPRIETARY) LIMITED	First Defendant	
HELMUT RAITH	Second Defendant	
HERBERT HERMANN	Third Defendant	
MARELIZE BRITZ	Fourth Defendant	
BRITZ ATTORNEYS	Fifth Defendant	
COEN DE KOCK	Sixth Defendant	
KENNY UYTENBOGAARDT	Seventh Defendant	
ESOSA	Eighth Defendant	
WOOLWORTHS (PTY) LTD	Ninth Defendant	
SIMON SUSMAN	Tenth Defendant	
NERINE KAHN	Eleventh Defendant	
RONALD BERNIKOW	Twelfth Defendant	

Judgment handed down on 31 May 2010
1. The ninth and tenth defendants (Woolworths (Pty) Ltd and Simon Susman) as well as the sixth, eleventh and twelfth defendants, being Mr Coen de Kock, Ms Nerine Kahn and Mr Ronald Bernikow, all took exception to the plaintiff's particulars of claim. The particulars of claim was drafted by the plaintiff who is unrepresented and who, despite being properly notified, failed to appear at the hearing of the exception.

3. Uniform Rule of Court 18(4), which applies to pleadings generally, provides as follows

'(4) Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto.'

(the emphasis by Van Heerden JA)

"The necessity to plead material facts does not have its origin in this Rule It is fundamental to the judicial process that the facts have to be established. The Court, on the established facts, then applies the rules of law and draws conclusions as regards the rights and obligations of the parties and gives judgment. A summons which propounds the plaintiff's own conclusions and opinions instead of the material facts is defective. Such a summons does not set out a cause of action. It would be wrong if a Court were to endorse a plaintiffs opinion by elevating it to a judgment without first scrutinising the facts upon which the opinion is based."

7. I state these principles at the outset as, as will appear below, the plaintiff's particulars of claim are far from clear, and the material facts required to arrive at the stated conclusions of law are mostly patently absent. Moreover the stated facts and the conclusions of law are not set out in a logical or comprehensible fashion and the reader is left to speculate whether a particular fact is linked to a particular conclusion of law. The particulars of claim are replete with opinions which are not related to any of the facts required to support such opinions.

9. He cites the sixth defendant, Mr Coen de Kock, as a commissioner at the Commission for Conciliation, Mediation and Arbitration ("the CCMA"); the eleventh defendant, Ms Nerine Kahn, as a director of the CCMA; and the twelfth defendant, Mr Ronald Bernikow, as a senior commissioner of the CCMA. The tenth defendant, Mr Simon Susman is the managing director of the ninth defendant, Woolworths (Pty) Ltd.

"On or about and during the periods 30 September 2008 to 26 February 2009, the First, Second and Third Defendants instructed their legal representatives, Fourth, Fifth, Sixth, Seventh and Eighth Defendants to wrongfully defame Plaintiff, stating on Labour Court application affidavits and heads of argument that Plaintiff represented his trade union at the CCMA arbitration - under the auspices that he was an attorney".

13. In paragraph 18 the following is stated

14. Again it is not stated what the defamatory allegations were, nor who uttered them.
15 . In paragraph 19 it is alleged that

"Mr Helmut Raith, Mr Herbert Hermann, Mr Kenny Uytenbogaardt, Ms Maralize Britz and Mr Coen de Kock have bribed the CCMA director - Ms Nerine Kahn and the CCMA senior commissioner, Mr Ronald Bernikow to stop Plaintiff from appearing at the CCMA because of the fact that he specialises in discriminating cases."
16. In paragraph 20 it is alleged that
"Miss Nerine Kahn, Mr Ronald Bernikow and Mr Coen de Kock have sent letters to Plaintiff stating that he cannot enter the premises of the CCMA but the CCMA is an organ of State and not a Court of law; hence their letters are null and void".
17. In paragraph 21 it is alleged that

"Mr Coen de Kock has further stated that in the Labour Court that Mr Simon Susman from Woolworths (Pty) Ltd - Ninth and Tenth Defendants respectively; have supported all the aforesaid defendants in their averments against the Plaintiff - that Plaintiff must be arrested by the South African Police Services – SAPS".
18. Paragraph 22 continues as follows

"Plaintiff alleges that Ms Nerine Kahn and Mr Ronald Bernikow have in one way or another associated themselves with the aforesaid Defendants' corrupt activities that is unlawful and wrongful in terms of The Prevention and Combating of Corrupt Activities Act, No. 12 of 2004."

20. The sixth, eleventh and twelfth defendants excepted on various grounds to the particulars of claim.
21. The first ground is directed at the allegations of defamation that:

22. The defendants excepted on the basis that the plaintiff had failed to allege any facts upon which his claim of defamation was based, such as when the defamation took place, why the words uttered were defamatory of the Plaintiff and whether they were uttered with the intention of defaming the Plaintiff.

25. Nowhere does the plaintiff state what other defamatory words were used, or to whom these, or any other words were uttered.
26. In the premises the exception against the alleged defamation referred to in paragraphs 14, 18, 26.1 and 27.2(f) of the particulars of claim is well taken.

29. In the premises the second ground of exception is also well taken.
30. The third ground of exception was against the allegations in paragraph 19 of the particulars of claim, namely that the plaintiff alleged that the sixth defendant (amongst others) bribed the eleventh and twelfth defendants:

33. Having previously alleged that there was a bribe of Ms Kahn (the eleventh defendant) and that the ninth and tenth defendants supported the averment that the plaintiff must be arrested by the South African Police (paragraph 21), the allegation is now made that there was a bribe of the South African Police Service's members to arrest the plaintiff (paragraph 23 of the particulars of claim).

35. Again I am satisfied that the particulars of claim lack averments to sustain a cause of action against the defendants.

37. Similarly and in respect of the sixth ground of exception - where reliance is placed on the Protected Disclosures Act, Act 26 of 2000 - in paragraph 26.2 of the particulars of claim - no factual basis for reliance on the provisions of the statute is made in advancing any cause of action against the defendants.
38. I now turn to deal with the exception lodged on behalf of the ninth and tenth defendants. The exception taken by them is on the grounds that the allegations in the particulars of claim fail to sustain a cause of action against them.

40. I am in agreement with Mr Manca, who appeared on behalf of these defendants, that there is no basis either in law or in fact why these defendants should have been cited in these proceedings. In the premises the particulars of claim lack averments which are necessary to sustain an action against the ninth and tenth defendants and falls to be set aside, with costs.
41. In sifting through the particulars of claim I have to find that as presently pleaded, the plaintiff's case is a hopeless one and none of the defendants should be required to go to trial thereon.
42. In the premises I make the following order:

(1)	The plaintiff's particulars of claim are set aside.
(2)	The plaintiff is to pay the costs of the sixth, eleventh and twelfth defendants as well as the costs of the ninth and tenth defendants.

(3)      The plaintiff is given leave to file amended particulars of claim within 30 days of the date of this order if so advised.