Buntu Foods (Pty) Ltd v Express Employment Professionals SA (Pty) Ltd; In Re: Express Employment Professionals SA (Pty) Ltd v Buntu Foods (Pty) Ltd (11081/2022) [2023] ZAGPPHC 712 (30 June 2023)

THE REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG HIGH COURT DIVISION, PRETORIA

Case no: 11081/2022

1. REPORTABLE: NO

2. OF INTEREST TO OTHER JUDGES: NO

3. REVISED.

30 JUNE 2022 ………………………...

DATE SIGNATURE

In the matter between:

BUNTU FOODS (PTY) LTD EXCIPENT

And

EXPRESS EMPLOYEMENT PROFESSIONALS SA (PTY) LTD RESPONDENT

In re:

EXPRESS EMPLOYEMENT PROFESSIONALS SA (PTY) LTD PLAINTIFF

And

BUNTU FOODS (PTY) LTD DEFENDANT

J U D G M E N T

___________________________________________________________________

MAKHOBA J

[1] The applicant (excipient) in this application excepts to the averments in the plaintiff’s particulars of claim on the basis that same is vague and embarrassing, alternatively that it lacks averments which are necessary to substantiate a cause of action.

[2] The plaintiff issued summons for the payment of an amount of R1 232 375.06 (one million two hundred and thirty-two thousand three hundred and seventy-five rands and six cents) based on the written agreement between the parties.

[3] The defendant served a Rule 23(1) Notice to the plaintiff’s attorneys on 15 September 2022. The plaintiff did not comply with the Notice. Consequently, the defendant served its exception to the plaintiff on 18 October 2022.

[4] The plaintiff is EXPRESS EMPLOYMENT PROFESSIONALS SA (PTY) LTD, Registration No: 1997/018470/07, a company with limited liability duly registered and incorporated in terms of the Company Laws of the Republic of South Africa with chosen domicilium citandi et executandi at Unit16, Oxford Office Park, 3 Bauhinia Street, Highveld, Centurion, Gauteng Province (hereinafter referred to as “the plaintiff”).

[5] The defendant is BUNTU FOODS (PTY) LTD, Registration No: 2017/479535/07, a company with limited liability duly registered and incorporated in terms of the Company Laws of the Republic of South Africa with registered address at West Hills Business Estate, Unit No 2, 379 Business Park, Sunderland Ridge, Gauteng Province (hereinafter referred to as “the defendant”).

5.1 First ground of exception

The plaintiff does not explain the manner in which it complied with the agreement.

5.2 Second ground of exception

The plaintiff failed to articulate and show in paragraph 5.2.1 of the particulars of claim how was the 180 days calculated.

5.3 Third ground of exception

Paragraph 5.2.2 of the particulars of claim refers to “associate(s) it is not clear which associates is the plaintiff referring to.

5.4 Fourth ground of exception

In the particulars of claim it is alleged that the defendant is in possession of items however the nature of these items is not properly explained. The nature of such possession is not articulated.

5.5 Fifth ground of exception

In paragraph 6.1 of its further particulars the plaintiff failed to name and identify the people referred to.

5.6 Sixth ground of exception

The plaintiff did not plead how the amount of R39500.00 was computed.

[6] The Respondent’s defence is that the applicant reads the paragraphs in isolation and fails to take the pleadings in totality into account. The information which the excipient seeks is information for trial.

[7] For purpose of this judgment the parties are referred to as in the main action.

[8] An exception can be brought by way of objection that a pleading is vague and embarrassing or an objection that a pleading does not disclose a cause of action.¹

[9] The particulars of claim must be considered in totality.² Every pleading must be clear and with sufficient particularity to enable the opposite party to reply thereto.³

[10] The court said the following in Jowell v Bramwell-Jones & Others:

“(a) minor blemishes are irrelevant;

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

(c) a distinction must be made between facta probanda…and facta probantia...;

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

(e) …certain allegations expressly made may carry with them implied allegations and the pleadings must be read.”⁴

[11] Our case law is unequivocal that the pleader must state its case in a clear and logical manner so that the cause of action can be made out of the allegations stated. The facta probanda should be pleaded, as opposed to the facta probantia.⁵

[12] The defendant must prove that upon every reasonable interpretation the particulars of claim fail to disclose a cause of action. In other words, the onus showing that a pleading is excipiable rests on an excipient.⁶

[13] Objections that a pleading is vague and embarrassing should be adjudicated with reference to the principles referred to in Jowell v Bramwell-Jones:

“(a) A pleader is merely required to plead a summary of material facts;

(b) an attack on a pleading cannot be found on a mere lack of particularity;

(c) An expression that a pleading is vague and embarrassing strikes at the formulation of pleading and not on its validity.

(d) An exception that a pleading is vague and embarrassing cannot be employed to strike out a particular paragraph, the exception must be directed at the whole cause of action which must be demonstrated to be vague and embarrassing.”⁷

[14] The following guidelines on an exception that no cause of action is disclosed are provided in Barclays National Bank v Thompson:

“It has been said that the main purpose of an exception that a declaration does not disclose a cause of action is to avoid the leading of unnecessary evidence at the trial: Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) at 706. Save for exceptional cases, such as those where a defendant admits the plaintiff’s allegations but pleads that as a matter of law the plaintiff is entitled to relief claimed by him (cf Welgemoed en Andere v Sauer 1974 (4) SA- 1 (A). An exception to a plea should consequently also not be allowed unless if upheld, it would obviate the leading of unnecessary evidence’.⁸

[15] The plaintiff’s grounds of exception should be considered and adjudicated against the backdrop of the above-mentioned principles.

[16] The first to the third ground of exception are vague and embarrassing for instance how did the plaintiff complied with the agreement and how was the 180 days calculated.

[17] The fourth to sixth ground of exception will make it difficult for the defendant to plead as there is not enough information to plead to.

[18] I am therefore persuaded that the defendant’s exception displays that the plaintiff’s particulars of claim does not disclose a cause of action alternatively is vague and embarrassing, and the defendant is not in a position to answer to the plaintiff’s further particulars.

[19] I make the following order.

1. The defendant’s exception is upheld with costs.

2. The plaintiff is afforded 30 (thirty) days from the date of this order within which to amend further particulars.

______________________

MAKHOBA J

JUDGE OF THE HIGH COURT

GAUTENG DIVISION, PRETORIA

MATTER HEARD AND RESERVED ON: 24 MAY 2023

JUDGMENT HANDED DOWN ON: 30 JUNE 2023

APPEARANCES:

For the Excipient: Adv J F WINNERTZ (instructed by) BURNETT ATTORNEYS & NOTARIES

For the Respondent: Adv J SULLIVAN (instructed by) VAN DER MERWE INC ATTORNEYS