Madlala v City of Johannesburg and another
Rule 18(4) of the Uniform Rules of Court states that “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”.
An exception is in essence a pleading in which a party raise an objection to the summons or plea on the basis that the pleading is vague and embarrassing or lacks the necessary averments to disclose a cause of action or defence.
In Southernpoort Developments (Pty) Ltd v Transnet LTD 2003(5) SA 665 (W) the court formulated the test on exceptions as follows:
- 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.
- 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.
- The Court should not look at a pleading ‘with a magnifying glass of too high power’.
- 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.
In Madlala v City of Johannesburg and another [2019] JOL 41601 (GJ) 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:
- 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.
- 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.
- The plaintiff only provided globular figures.
- The plaintiff failed to provide key information with regards to her past and future employment.
- 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.
Compiled by: Lize-Mari Viljoen (B. Com Law, LL.B.); source: https://www.lexisnexis.co.za/
LEXISNEXIS MINI SUMMARY:
Madlala v City of Johannesburg and another
Case Number: | 23236 / 2017 |
Judgment Date: | 28 / 02 / 2019 |
Country: | South Africa |
Jurisdiction: | High Court |
Division: | Gauteng, Johannesburg |
Bench: | TJ Machaba AJ |
Keywords:
Personal Injury/ Delict – Fall on pavement – Open manhole – Claim for damages Civil Procedure – Exception to claim – Legal principles
Mini Summary:
While walking on a pavement on a public street, the plaintiff fell into an open manhole 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.
The defendants delivered a notice of exception in terms of rule 23(1) of the Uniform Rules of Court, objecting that the particulars of claim were vague and embarrassing. Five grounds were advanced in support thereof.
Held that Rule 23 of the Uniform Rules of Court provides a defendant with an avenue of excepting to the plaintiffs’ particulars of claim on two possible grounds. The first ground is where the pleadings are vague and embarrassing and the second ground that the pleadings do not carry sufficient facts to sustain a cause of action. A successful challenge of vague and embarrassing pleadings would result in the said pleadings having to be amended to provide particularity required by Rule 19. The case and the pleadings still remain extant as between the parties. The general rule relating to pleadings is that the particulars of claim (statement of claim) must state in sufficient particularity the claim which the defendant must answer. Rule 18(4) states that: “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”. Thus, a cause of action or defence must be contained in the pleading.
For purposes of deciding an exception, a court will consider the facts alleged in the pleadings as correct unless they are palpably untrue or so improbable that they cannot be accepted.
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.
Applying those principles to the facts of the present case, the court could not uphold the defendant’s arguments. The exception was dismissed.