IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case No.: 10281/08

In the matter between:

and

KOEN AJ.
[1] This matter concerns an exception to the plaintiff's particulars of claim on the ground that it is vague and embarrassing. For the sake of convenience I shall refer to the excipient as the defendant, and to the respondent as the plaintiff.

[2] The particulars of claim allege that the plaintiff and the defendant are parties to a written agreement. In terms of the agreement the plaintiff was granted the right to carry on a restaurant business at Cape Town by the defendant. As provided for in the agreement the plaintiff leased certain business premises and incurred costs in setting up its business, but it transpired that the premises could not be used as a restaurant, and the agreement was therefore cancelled by the plaintiff. In consequence, the plaintiff now claims damages from the defendant in the sum of R 2 429 043,09. Broadly speaking, these are the wasted costs of setting up the restaurant business. It also claims an amount of R 8 332 682,50 in respect of an alleged loss of profits which would have accrued to it had the agreement run its course.

[3] The exception is directed at the first part of the plaintiffs claim which I have described as being the claim for the wasted costs of setting up the restaurant business. It is contended on behalf of the defendant that the damages allegedly suffered by the plaintiff in setting up the restaurant business have not been set out in the manner prescribed by Rule 18 (10), thereby rendering the claim excipiable on the ground that it is vague and embarrassing.

[6] The thrust of the attack on the spreadsheet is that it lists simply costs which were incurred, without taking into account the fact that it is evident from the nature of certain items listed in the spreadsheet that some of the costs were incurred in purchasing items which had a value, and which belonged to the plaintiff.

[7] The way the claim was formulated, it was argued, permitted the plaintiff to keep the items so purchased, and to recover the costs it incurred in purchasing them. Because a double recovery of damages is legally impermissible it was argued that the defendant could not discern from the pleading what the damages claimed by the plaintiff were - those items in respect of which a double recovery would operate were listed together with those items in respect of which a double recovery would not operate - and it could therefore not assess the quantum of the damages claimed.

[10] In my view the particulars of claim in this matter do not measure up to the standard required. The spreadsheet detailing the breakdown of the claim is an amalgamation of various categories of damage allegedly suffered by the plaintiff. On the face of it the amount claimed in respect of many of the items listed is not the amount of the damage which can lawfully be claimed. No allowance is made in the pleading for those items which obviously belong to the plaintiff, and which have a value which the law requires must be deducted from the claim. In the result the defendant cannot make an evaluation of the amount of the claim, and the object of the Rule is defeated.

[12] In my view therefore the exception must succeed. Counsel for the defendant submitted that if this were the result then the proper order would include a provision affording the plaintiff an opportunity to amend its particulars of claim. There is no reason why costs should not follow the result.

[13]   Accordingly I make the following order: