Santam Limited

and

IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

Case Number: 68492/2013

~ /,3 JI i

( l) REPORTABLE: '¢" 1GID) (2) OF INTER,ESJ,TO OTHER JUDGES: Y~_@

(3) REVISEl,V

ro~.l Q:3. .~.a r~ b.SAJdJ VD DAT~ s,G~~.r'u·R, .. 'v/

Respondent/Plaintiff

Twin City Hazyview (Pty) Ltd t/a Twin City

Hazyview (Pty) Ltd and/or Twin City Hazyview

First Defendant

and

Dennis Lawrenson Associates CC Excipient/Second Defendant

JUDGMENT

MOLEFE J

•

2

[1] The plaintiff in this action, an insurance company seeks to reclaim money

overpaid to its client, the policy holder/insured (first defendant) pursuant to an

insurance claim and against the plaintiff's own loss adjuster (second defendant).

[2] The plaintiff's claim against the first defendant for unjustified enrichment is

based on the condictio indebiti and against the loss adjusting firm, jointly and

severally with the insured, the claim is for damages due to breach of contract,

alternatively, in delict.

[3] The plaintiff's contractual claim is based on a written Service Level

Agreement, in terms of which the plaintiff alleges that it was the duty of the second

defendant's employee (individual loss adjuster) to investigate and certify progress

payments, which it had failed to do by certifying amounts to which the first defendant

was not entitled. The delict claim is based on an alleged negligent misrepresentation

to the effect that the payments were due to the first defendant while they were not.

[4] The second defendant excepts to the plaintiff's further re-amended particulars

of claim ("particulars of claim") which constitutes the plaintiff's latest series of

previously amended particulars of claim on the grounds that they do not contain

sufficient allegations to disclose a cause of action against the second defendant

alternatively that they are vague and embarrassing. The second defendant's

exception was preceded by a notice in terms of Rule 23(1) calling upon the plaintiff

to remove the causes of complaints within 15 days, which the plaintiff failed to do.

Legal Principles: Pleadings and Exceptions

3

[5] I first state certain general principles of the law relating to an exception on the

grounds that the pleading is vague and embarrassing. Rule 18(4) of the Uniform

Rules of Court provides that

"(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".

[6] The object of pleading is to define the issues so as to enable the other party

to know what case he or she has to meet1 and not to be taken by surprise. It is a

basic principle that a pleading should be so phrased that the other party may

reasonably and fairly be required to plead thereto.2

[7] In lmprefed (Pty) Ltd v National Transport Commission3 the SCA had the

following to say:

"At the outset it need hardly be stressed that:

'The whole purpose of pleadings is to bring clearly to the notice of the Court and the parties to

an action the issues upon which reliance is to be placed;'

(Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082).

'This fundamental principle is similarly stressed in Odgers' Principles of Pleading and Practice

in Civil Actions in the High Court of Justice 22"d ed at 113:

'The object of pleading is to ascertain definitely what is the question at issue between the

parties; and this object can only be attained when each party states his case with precision'."

[8] The most important functions of pleadings are:

1 Robinson v Randfontein Estates GM Co Ltd 1925 AD 173 at page 198

2 Trope v South African Reserve Bank 1992 (3) SA 208 {T) at 211 and at 210 G

3 1993 (3) SA 94 {A) at 107 C to E

4

8.1 To define the issues upon which the court will be called upon to

adjudicate;

8.2 To enable the parties to prepare for trial on the issues as defined;

8.3 To serve as a record of the respective claims, counter claims, admissions

and defences which may be relevant in any other or future litigation between

the parties;

8.4 To set the parameters within which the proceedings will be conducted and

the evidence admitted or excluded;

8.5 To determine the burden of the onus of adducing evidence and the rights

(or duty) to begin.4

[9] Rule 23(1) provides that an exception may be taken against a pleading on the

grounds that it is vague and embarrassing or lacks averments which are necessary

to sustain an action or defence, as the case may be. An exception to a pleading on

th~ ground that it is vague and embarrassing involves a twofold consideration. The

first consideration is whether the pleadings lacks particularity to the extent that it is

vague. The second consideration is whether the vagueness causes prejudice.5

(See Trope supra at 21 1 B)

[1 O] A pleading may be vague if it is either meaningless or capable of more than

one meaning; leaves one guessing as to what it means; or if it fails to provide the

4 Herbstein and Van Winsen: The Civil Practice of the High Courts and the Supreme Court of Appeal of Sout h

Africa 51h Edition Vol 1 p 559 and t he footnotes cited t herein

5 Nel and Others NNO v McArthur & others 2003 (4) SA 142F at 148F

5

degree of detail necessary in the particular case properly to inform the other party of

the case being advanced.6

[11] The typical prejudice which may justify an exception is if the allegation in the

particulars of claim are such that the defendant is unable to plead properly7 or where

a defendant is unable to properly prepare to meet his opponent's case, or in an

inability to foresee how the plaintiff will play his hand at the trial and what must be

done to meet this. 8

[12] The test applicable in deciding exceptions based on vagueness and

embarrassment arising out of lack of particularity can be summarized as follows9:

(a) In each case the court is obliged first of all to consider whether the

pleading does lack particularity to an extent amounting to vagueness. If a

statement is vague, it is either meaningless or capable of more than one

meaning. 10

(b) If there is vagueness in this sense the court is then obliged to undertake a

quantitative analysis of such embarrassment as the excipient can show is

caused to him by the vagueness complained of.11

(c) In each case ad hoc ruling must be made as to whether the

embarrassment is so serious as to cause prejudice to the excipient if he is

compelled to plead to this pleading in the form to which he objects.12 A point

6 Nel & Others NNO supra at 148F 7

Lockhart v Minister of Interior 1960 (3) SA 765 (N) at 777E 8

Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA (C) at page 298 9

Trope v South Africa Reserve Bank 1992 (3) SA 208 {T) at 211 E 10

Leathern v Tredoux (1911) 32 NLR 346 at 348 11

ASSA Bank Ltd v Boksburg Transitional Local Council 1997 (2) SA 415 (W) at 4211-422 A 12

Standard Bank of South Africa Ltd v Hunkydory Investment 194 (Pty) Ltd and Another (No 1) 2010 (1) SA 627 (C) at 630 D

6

may be of the utmost importance in one case, and the omission thereof may

give rise to vagueness and embarrassment, but the same point may in

another case be only a minor detail.

(d) The ultimate test as to whether or not the exception should be upheld is

whether the excipient is prejudiced.13

(e) The onus is on the excipient to show both vagueness amounting to

embarrassment and embarrassment amounting to prejudice.14

(f) The excipient must make out his case for embarrassment by reference to

the pleadings alone.15

(g) The Court would not decide by way of exception the validity of an

agreement relied upon or whether a purported contract may be void for

vagueness.16

[13] The Court is to take as true the allegations pleaded by the plaintiff and to

assess whether they disclose a cause of action. In order to succeed, the defendant

must persuade the court that upon every interpretation which the particulars of claim

can reasonably bear, no cause of action is disclosed.17

[14] The second defendant has taken an exception on no less than fourteen (14)

different grounds. Plaintiffs counsel18 submits that the grounds (with the exception

of the fourth and fifth ones which will be met by an amendment) are entirely without

13 Francis v Sharp 2004 (3) SA 230 (C} at 240 E-F 14

Venter and Others NNO v Wolfsberg Arch investments 2 (Pty) Ltd 2008 (4) 15

Lockhart v Minister of Interior 1960 (3) SA 765 (D) at 77 B 16

Francis v Sharp 2004 (3) SA 230 (C} at 240 F-G 17

Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA) at 997A to C para (7] 18

Adv. JD Maritz SC

7

merit. It is also submitted that from the second defendant's heads of argument, the

tenth and thirteenth grounds of exception are not pursued.

(15] The plaintiff's claim is that it made an overpayment of R2 208 920.87 to the

first defendant and an alternative claim of R6 032 871 .85 and these amounts are

claimed from the first defendant on the basis of unjust enrichment. As to the claim

against the second defendant, it is alleged that the amounts are damages suffered

by the plaintiff as a result of a breach of contract by the second defendant,

alternatively negligent and wrongful conduct of Mr Harwood, who at all times acted

within the course and scope of his employment with the second defendant.

(16] Counsel for the second defendant19 submits that the particulars of claim are

convoluted, confusing, cross-reference wrong paragraphs, are too vague and simply

do not contain a clear and concise statement of the material facts upon which the

plaintiff relies in support of its claim. It is therefore submitted that the particulars of

claim do not disclose a cause of action against the second defendant, alternatively,

are vague and embarrassing. Against this background, the various exceptions are

addressed separately.

First ground of exception

[17] The plaintiff relies on a written service level agreement concluded between it

and the second defendant (annexure 'A')20 and pleads that upon a proper

construction of annexure 'A', the parties agreed that (i) the plaintiff appointed the

second defendant as loss adjuster to assist the plaintiff in assessing insurance

claims; (ii) that the plaintiff insisted that Mr Harwood personally perform the work on

19 Adv. T Dalrymple 20

Particulars of claim page 6 read with annexure 'A'

8

behalf of the second defendant; (iii) whenever the plaintiff issues an instruction to the

second defendant to assess an insurance claim, the second defendant shall

investigate, assess and recommend to the plaintiff about payments of claims as

detailed in annexure -'A' . 21

[18] The express wording of paragraph 1.1 of annexure 'A' provides as follows:

"The CCU appoints an individual adjuster rather than the loss adjusting firm. The individual

loss adjuster may delegate some of the work to junior adjusters within the adjusting firm,

charging out work at their rate provided there is no unnecessary duplication of work and the

appointed adjuster retains personal responsibility for the management of the loss adjustment

and personally produces the reports".

[19] Second defendant's counsel submits that the contrary averments in terms of

annexure 'A' are the following:

19.1 the clause quoted above provides that an individual adjuster is

appointed, not the firm;

19.2 Mr Harwood's name is not mentioned;

19.3 the clause specifically permits the individual loss adjuster to delegate

work, contrary to the plaintiff's alleged insistence that Mr Harwood personally

perform the work;

19.4 the allegations made in paragraph 5.3 of the particulars of claim (quoted

in paragraph 17 (iii) above) do not appear in annexure 'A'.

21 Particulars of claim paragraphs 5.1 to 5.2

9

[20] The plaintiff pleads that "a proper construction of annexure ~' reveals the

terms so relied upon .. Plaintiff's counsel submits in his heads of argument that the

plaintiff is aware that "the written agreement is no model of clarity", therefore the

plaintiff has pleaded that it would contend to be the "proper interpretation" and that

the Court should determine the intention of the parties.

[21] The heading of annexure "A" is clearly a "Service Level Agreement Between

Complex Claim Unit of Santam Ltd (Hereafter Referred to as CCU) and Dennis

Lawrenson and Associates (Herein referred to as the Adjuster)." Mr G P Harwood

signed the agreement on behalf of the second defendant as director. Clause 1.4 of

annexure "A" provides as follows:

"1. 4 The Loss Adjuster shall only have such authority as may be expressly provided for in

terms of this agreement and/or any specific mandate provided by a duly authorised employee

of CCU Santam".

[22.] The heading of annexure "A" is clearly a Service Level Agreement between

the plaintiff and the second defendant. The submission by the second defendant's

counsel that it was not the second defendant who had been appointed to the panel

of loss adjusters in terms of the service level agreement is in my view, without any

merit. A contract must be interpreted by determining the parties' intention having

regard to its context and its purpose. A commercially sensible meaning is to be

attributed. 22

[23] Although not too clearly, the future services are contracted to the second

defendant, to be performed by one or both of the individuals' mentioned in the

22 North East Finance (Pty) Ltd v Standard Bank of South Africa Ltd 2013 (5) SA 1 SCA

10

annexure "A" agreement23, on the second defendant's behalf and for the second

defendant's credit. The complaint by the second defendant to conclude that the

ser;ond defendant is not appointed to the plaintiff's panel of adjusters has no merit.

Furthermore, the second defendant has to show that the claim is excipiable on any

possible interpretation and this is clearly not the case and the exception is therefore

dismissed.

[24] I am also influenced inter a/ia by the nature of the allegations, their content

and more importantly the relationship between the parties. I am satisfied that the

second defendant may still be able to plead even though it might otherwise be

entitled to request further particulars.

[25] Counsel for the second respondent further submitted that by the inclusion of a

Shifren clause which provides that annexure "A" is the entire agreement between the

parties and that no variation, modification or addition would be of any force or effect

as the terms "properly interpreted" are not in the agreement. In my view, this

submission is misguided in casu. To interpret a contract is to determine its original

meaning and not to vary or modify it. The first exception is therefore dismissed.

Second ground of exception

[26] In paragraph 6 of the particulars of claim, the plaintiff pleads that during July

2010, an agreement of insurance was in force between the plaintiff and the first

defendant in terms of which the plaintiff agreed to indemnify the first defendant in

respect of loss or damages to buildings in the Twin City Shopping Complex at

Hazyview, Mpumalanga.

23 Annexure Bl bundle page 22

11

[27] The second defendant complains that the agreement of insurance between

the plaintiff and the first defendant had not been pleaded with more particularity and

had not been attached. Counsel for the second defendant submits that the reliance

on the insurance agreement is inextricably linked to the plaintiffs claim against the

second defendant since it is alleged that due to the second defendant's conduct, the

first defendant got paid more than it ought to have been paid in terms of the

insurance agreement.

[28) Plaintiffs counsel correctly argued that on the plaintiffs pleaded version, the

terms upon which the calculation of indemnity were to be done, had been agreed

upon orally in August 2010, not in terms of the insurance policy.24 Plaintiffs counsel

further pointed out that it is not alleged that the second defendant was a party to that

agreement, had breached it or owes some performance in terms of it.

[29] The second defendant's complaint is simply about the particularity of the

insurance policy. Where the complaint is only about mere detail, a defendant's

remedy is to plead to the averments made and to obtain particularity required either

by means of discovery/inspection procedure or by means of request for particulars

for trial. An exception that particulars of claim are vague and embarrassing cannot

rest on the mere averment that they lack particularity.25

[30] In my view, no prejudice can arise from vagueness which flows from

reference to the agreement of insurance/policy since it can be cured by defendant's

reliance on the provisions of rule 35 (12) and (14) of the Uniform rules of Court and

calling for it.26 Therefore, this ground of exception should also be dismissed.

24 Particulars of Claim page 8-9, par 9 and 10

25 Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W)

26 Nxumalo v First Link Insurance Brokers (Pty) Ltd 2003 (2) SA 620 (T)

12

Third ground of exception

[31] In paragraph 8 of the particulars of claim, the plaintiff pleads that the first

defendant submitted an insurance claim to the plaintiff and the plaintiff in turn

instructed the second defendant represented by Mr Harwood to attend to the matters

pleaded in paragraphs 8.1 to 8.3 of the particulars of cla im.

[32] This complaint is again about the particularity about the manner in which the

initial instruction to act as a loss adjuster on the insurance claim of the first defendant

was given. It is obvious that such an instruction would have been to whomsoever

had been appointed to the plaintiff's panel of loss adjusters pursuant to the service

level agreement. Again , an exception that particulars of claim are vague and

embarrassing cannot rest on the mere averment that they lack particularity. No

prejudice had been shown.

[33] In my view, I am of the opinion that the second defendant is able to plead

even though it might otherwise be entitled to request further particulars and this

ground of exception is dismissed.

Sixth, Seventh, Eighth and Twelfth Grounds of Exception

[34] These four grounds of exception whilst not identical, address similar themes

and consequently are dealt with together. The complaints advanced in these

grounds are firstly, the adequacy of pleading and secondly, the inability of the

second defendant to assess the quantum. The complaints are directed at the

following paragraphs of the particulars of claim: paragraphs 11 .2 and 13 (the sixth

ground of exception), paragraph 11.3 (the seventh ground of exception), paragraphs

13

11.4 and 12 (the eighth ground of exception) and paragraph 14 (the twelfth ground of

exception).

[35] In paragraph 11 .2 of the particulars of claim the plaintiff pleads that the

quantity surveyor certified amounts for payment from time to time, although such

certificates were not limited to exact reinstatement or replacement after the fire, but

also included other work or work in betterment of the damaged premises. In

paragraph 13 plaintiff pleads that the amount also included "other work, betterment".

[36] In paragraph 11.3 of the particulars of claim the plaintiff pleads that "the

second defendant (Mr Harwood)" recommended to the plaintiff that the amounts

certified by the quantity surveyor be paid to the first defendant without the second

defendant having verified that such amounts were strictly limited to exact

replacements and were therefore payable by the plaintiff.

[37] In paragraph 11 .4 of the particulars of claim the plaintiff pleads that the

second defendant also wrongly calculated the claim for lost rental on an area larger

than required to repair strictly to the previous state. In paragraph 12 the plaintiff

refers to the second defendant's wrong calculations.

[38] Counsel for the second defendant submits that these paragraphs are general,

lacking in detail and/or particularity and fail to contain the material facts upon which

the plaintiff relies. Counsel further submits that no facts are alleged - what is alleged

is the plaintiff's conclusions which renders the pleadings defective.27 Furthermore,

the pleading is so vague that it is impossible for the second defendant to do anything

other than simply badly deny the allegations made in these paragraphs.

27 Buchner's case supra footnote 4 above

14

[39] These complaints are all about the manner in which the plaintiff has pleaded

the quantification of its damages. Rule 18(10) provides that a plaintiff suing for

damages shall set them out in a manner as will enable the defendant to reasonably

assess the quantum thereof; in other words to enable the defendant to know why the

particular amount being claimed is in fact being claimed.28

[40] I am not satisfied that the plaintiff has done so. The plaintiff in his particulars

of claim refers to amounts being certified by the quantity surveyor and being

recommended for payment by the second defendant. However the particulars of

claim do not contain any facts which precisely set out the amounts so certified by the

quantity surveyor and in what respect such certification was not limited to "exact

reinstatement or replacemenf' after the fire, nor the facts describing what other work

area are included in betterment of the damaged premises. In addition, it is not set

out what the value of such alleged betterment was. In my view, it is consequently

simply not possible for the second defendant to reasonably assess the quantum of

the plaintiff's claim.

[41] The same difficulty arises in paragraph 11.3 of the particulars of claim. The

plaintiff alleges that the "second defendant (Mr Harwood)", recommended to the

plaintiff that the amounts certified by the quantity surveyor be paid to the fi rst

defendant without the second defendant having verified that such amounts were

strictly limited to exact replacements and were therefore payable by the plaintiff. The

facts setting out the amounts recommended by the second defendant, the amounts

which were in fact payable by the plaintiff and the amounts in excess to such

amounts are however not disclosed.

28 Grindrod (Pty) Limited v Dalport and Others 1997 (1) SA 342 (W) at 346 J

15

[42] The same difficulty arises with reference to paragraph 11.4 of the particulars

of claim and the allegations as to the wrong calculation on the claim for lost rentals,

the area being larger than that was actually damaged and for a period longer than

required to repair strictly to the previous state. The payments made to the first

defendant by the plaintiff on the strength of the alleged wrong calculations are

referred to in paragraph 12. The allegations however do not address all the issues in

respect of how much the second defendant wrongly calculated the claim for lost

rentals, how much larger the area was compared to the area that was actually

damaged, for what period the second defendant calculated the claim and to what

extent such period was longer than actually required.

[43] The plaintiff alleges that the amount in respect of replacement and loss of

rentals should only have been R3718 225.00 and that there was thus an

overpayment in the amount of R2 208920.87.29 Counsel for the second defendant

submit that it is not possible to establish how the amounts are made up and the

second defendant is unable to understand how they are made up and to reasonably

asses the quantum thereof.

[44] I agree that the second defendant cannot reasonably assess the quantum

claimed to enable him to plead thereto and will simply be forced into proffering a

bare denial. These grounds of exception should therefore succeed.

Ninth ground of exception

[45] Plaintiff pleaded in paragraph 11 .5 of the particulars of claim that second

defendant ("Mr. Harwood'? breached the terms of annexure "A" and negligently

29 Particulars of claim page 10 par 14

16

misrepresented to the plaintiff that the amounts so certified were due and payable to

the first defendant.

[46] Second defendant's counsel again submitted that the plaintiff failed to explain

the breach complained of with reference to specific terms of the agreement relied on.

This complainant is again about the particularity with no prejudice having been

shown. In my opinion, the second defendant has failed to persuade me that upon

every interpretation which paragraph 11 .5 can reasonably bear, no couse of action is

disclosed. I am satisfied that the second defendant is able to plead and this

exception is therefore dismissed.

Eleventh ground of exception

[47] The complaint is the plaintiffs allegations in paragraph 11 .5 of the particulars

of claim that Mr. Harwood's act constituted breach of contract and alternatively

negligent misrepresentation causing patrimonial loss to the plaintiff.

[48] Counsel for the second defendant submitted that it is trite that allegations

directed at delictual liability not be stated in the alternative to allegation of contractual

liability and that seeking to claim simultaneously in contract and in delict is

impermissible. Counsel in this regard relied on Ullicrap and Wassenaar and Partners

v Pilkington Brothers 1985 (1) SA 475 (A)

[49] In the Lillicrap judgment30 Botha AJA said:

" ... The examples in our common law of concursus action um to which I have referred

above were all cases where the acts of the defendant satisfied the independent

requirements of both a contractual and an Aqui/ian action. Where, for instance, a

30 1985 (1) SA 475 at 499G-I

17

lessee negligently damages the leased properly which he is under a contractual

obligation· to return in an undamaged state he would be liable ex delicto for

negligently causing damage to the lessor's properly, and ex contractu for failing to

return the properly in a proper state pursuant to the lease. The former liability would,

however, have arisen even in the absence of a contract of lease. As noted above,

Van Wyk v Lewis (supra) was a similar case. As Van der Walt states (op cit para 5 at

7):

'The same conduct may constitute both a breach of contract and a delict. This is the

case where the conduct of the defendant constitutes both an infringement of the

plaintiff's rights ex contractu and a right which he had independently of the contract. "'

[50] The plaintiff's allegation is that Mr. Harwood through a positive act, a

recommendation that the amounts certified be paid, misrepresented that the

amounts were due and payable, as a result of which the plaintiff parted with the sum

of money it should not have. Delictual liability is indeed pleaded as alternative to

contractual liability in casu. In paragraph 19 of the particulars of claim, it is alleged:

"19. The amount. . . . constitutes damages suffered by the plaintiff as a result of breach of

contract by the second defendant, alternatively, negligent and wrongful conduct . .. "

[51] I do not agree with the second defendant's submission that seeking to claim

simultaneously in contract and alternatively in delict is in casu impermissible. The

grounds upon which the plaintiff's claim is based are clear and not confusing nor are

they vague and embarrassing. This exception is therefore dismissed.

Fourteenth ground of exception

[52] This complaint is about the prayer for relief against the second defendant. In

prayer 2, the plaintiff claims for an order that the second defendant should be liable,

jointly and severally with the first defendant, for the amounts claimed from the first

18

defendant in prayer 1. Counsel for the second defendant argues that the plaintiff

thus pursues simultaneous claims for unjust enrichment against the first defendant

and for breach of contract alternatively negligent and wrongful conduct against the

second defendant.

[53] In my view an exception of this kind should not be allowed as even if the order

as prayed cannot be granted, the Court may still on the same set of facts eventually

proven, grant an appropriate order under the prayer for further and/or alternative

relief. In Du Plessis v Nef 1 Schreinder JA said:

"It is unnecessary in view of what I have said to deal with the question

whether on the a/legations in the declaration the plaintiff would not at least be

entitled to a declaration in the form of her prayer 2(b) or, under her prayer for

alternative relief, some similar declaration. If on the a/legations as they stand

she might be entitled to some such declaration this would be a further ground

for upholding the dismissal of the exception, for I agree with the decision in

Stein V Giese 1939 C.P.D 336, that an exception cannot be brought against

one only of several prayers for relief based on the same allegations of fact.

Particularly where prayers are in the alternative does it seems to me that the

procedure by way of exception is inappropriate"

[54] This ground of exception in my view is without merit and should therefore fail.

[55] The general principles in interpreting pleadings were stated by Heher J in

Jowell V Brounwe/1-Jones and Others32:

"a) minor blemishes are irrelevant;

b) pleadings must read as a whole; no paragraph can be read in isolation;

31 1952 (1) SA 513 (A) at 531 H

32 1998 (1) SA 836 (W) at 902 1-J and 903 A-B

19

c) a distinction must be drawn facta probanda ... and facta probantia;

d) only facts need to be pleaded; conclusion of law need not be pleaded;

e) ... certain allegations expressly made may carry with them implied a/legations and

pleadings must be so read."

[56] The pleader is required to state its case in a clear and logic manner so that

the cause of action can be made out of allegations stated. The material facts (facta

probanda) should be pleaded, as opposed to facts used to prove (facta probantia)

such material facts, that is, the evidence33. The defendant must persuade the court

that upon every reasonable interpretation the particulars of claim fail to disclose a

cause of action.34

[57] In the result the following order is made:

57. 1 The second defendant's first, second, third, ninth, eleventh, and

fourteenth grounds of exception are dismissed;

57.2 The second respondent's sixth, seventh, eight, and twelfth grounds of

exception are upheld;

57.3 The plaintiff is afforded fifteen days from the date of this order to

amend its particulars of claim;

57.4 The plaintiff is to pay the costs of the exception.

JUDGE OF T E HIGH COURT

33 Mckenzie v Fa rmers Corporative Meat Industries Ltd 1992 AD

34 Fi rst National Bank of Southern Africa Ltd v Perry NO 2001 (3) SA 960 (SCA)at 965D

20

APPEARANCES:

Counsel on behalf of Respondent/Plaintiff's

Instructed by

Counsel on behalf of Excipient/Second Defendant :

Instructed by

Attorneys on behalf of First Defendant

Date Heard

Date Delivered

Adv. JD Maritz SC

Savage Jooste & Adams

Adv. T Dalrymple

Everingham, Rogers & Partners

EY Stuart Inc

12 February 2018

8 March 2018