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IN THE HIGH COURT OF SOUTH AFRICA

(Transkei Division) CASE NO. 1115/07

In the matter between:

SIVUYILE MATU APPLICANT

v

MINISTER OF SAFETY AND SECURITY RESPONDENT

JUDGMENT

PAKADE, J.:

[1] The defendant has excepted to the particulars of plaintiff``s claim on the ground that paragraph 8.3 thereof is vague and embarrassing.

[2] In order to be able to comprehend the cause of the complaint by the defendant I should reproduce the whole of paragraph’ 8 of the particulars of claim:

“ 8 . As a result of the foregoing plaintiff has suffered damages in the amount of R450 000 made up as follows:

8.1 R5000.00, being the costs incurred in defending himself against the trumped up charges;

8.2 R250 000 .00 for deprivation of liberty and discomfort;

8.3 R195 000-00 for general damages for contumelia and emotional stress”.

[3] In the particulars of claim, the plaintiff claims damages for unlawful arrest and malicious prosecution. The two claims have not been separated and are, according to Mr Jozana for the plaintiff, all fused in one paragraph, namely, paragraph 7 of the particulars of claim. I must, once again, reproduce the said paragraph 7 with a view to ascertaining whether or not it embodies both claims:

“ 7. In consequence of Sergeant Naki’s conduct aforesaid, plaintiff

7.1 was held in custody for several hours; and

7.2 Suffered

7.2.1 humiliation and/or indignity;

7.2.2.incurred damages being the costs reasonably expended by him in defending himself against the aforesaid charges”.

[4] The reading of paragraph 7 does not suggest that the claim for malicious prosecution is fused therein but that it is contained in a separate paragraph, namely, paragraph 6 of the particulars of plaintiff` s claim. One finds on a proper reading of paragraph 6 which is about the appearance of the plaintiff in the Magistrate Court on charges preferred against him by Sergeant Naki, that those charges were ultimately withdrawn after numerous postponements which were costly to the plaintiff.

[5] It seems to me that paragraph 8 of the particulars of claim is nothing else but a conclusion drawn from the premises clearly set out in paragraph 6 and 7 thereof.

[6] Mr Hobbs, counsel for the defendant premised his argument on the basis that paragraph 8.3 is vague and embarrassing because it has not been stated how much is claimed for unlawful arrest and how much for malicious prosecution. The short answer to counsel’s submission is, as said above, that the conclusion set out in paragraph 8 is derived from the premises set out in paragraph 6 and 7 of the particulars of plaintiff `claim. The question, however, still remains as to how much is allocated to each of the claims.

[7] In my view, if the claim in paragraph 8.3 applies to both claims it is only the court that will be hearing the case which would be in a position to award the damages and apportion them to the claims so proved in the trial. If only one claim is proved the court may still award such damages as may have been proved in the remaining claim.

[8] In argument Mr Hobbs referred to the judgment of Klopper J and Kumbeleben J in Botma v Laubscher 1973(3) SA 590 (O). There the magistrate had dismissed the exception .On appeal the Court enquired whether the notice of exception was in order as it contained no prayer. It was held that the notice should be formally amended by adding a prayer thereon. It was further held that the summons contained more than one claim and, as the relief in respect of each in so far as general damages were concerned had not been set out separately that the requirements of Rule 6(3)(c) of the magistrate’s Rules had not been complied with. The exception was upheld. Mr Hobbs submitted that this case is in all fours with the present case and that being the case I should apply the same principle in the present case and uphold the exception. Mr Jozana did not counter this submission.

[9] The distinguishing factor between the two cases is that in the Botma case the complaint was that the claim for damages were not set out separately as required by Rule 6(3)(c) of the magistrate’s Court rules whereas the complaint in the present case is that a particular paragraph (8.3) is vague and embarrassing because it has not been specified therein to which claim does it apply. Mr Jozana submitted that an exception is invoked in respect of all the averments in the particulars of plaintiff `s claim and not in respect of a subparagraph dealing with damages. He cited as support for his submission, Jowell v Brandwell Jones and others 1998 (1) SA836 (W), At 899 F-G of that case it was held that an exception that a pleading is vague and embarrassing cannot be directed at a particular paragraph within a cause of action. The exception must go to the whole cause of action which must be demonstrated to be vague and embarrassing. I agree with Heher J at 900B-C that the present terms of the rules maintain the essential distinction between the substance of a cause of action (which is dealt with under Rule 23) and the particularity of a pleading (which is regulated by Rule 18(4)). After the close of pleadings the defendant can cure the cause for complaint by requesting further particulars for trial in terms of Rule 21(2). If the plaintiff is unable to give the requested particulars or is unable at the trial, to prove the damage suffered by him, then he can lose.

[10] Mr Jozana further relied as to the applicable test on exception to the judgment of Blieden J in Southernport Developments (Pty) Ltd v Transnet Ltd 2003(5)SA 665 paragraph 6 thereof. The test derived from that case can be paraphrased as follows:

(i) In order for an exception to succeed the exception must establish that the pleading is excipiable on every interpretation that can reasonably be attached to it (First National Bank Southern Africa Ltd v Perry NO and Others 2001(3) SA 960 (SCA) at 965 D; Theunissen en Andere v Transvaalse Lewende – hawe Koop Bpk 1988(2)SA 493 (A) at 500 E-F.

(ii) 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.

3. The court should not look at a pleading with a magnifying glass of too high power.

4. The pleading must be read as a whole and no paragraph should be read in isolation.

[11] Upon a reading of paragraph 8.3 together with paragraphs 6 and 7 of the particulars of plaintiff’s claim, I find that paragraph 8.3 is not vague and embarrassing. Even if I am wrong in this finding paragraph 8.3 can be cured by a request for further particulars for trial. I can find nothing that may inhibit the defendant from pleading to the particulars of claim more so that he has no problem with the rest of the pleadings except only paragraph 8.3 thereof to which he could also plead and after the close of pleading request particulars for trial thereon. The request for further particulars for trial would further delay his fears that the amount claimed in 8.3 cannot be apportioned to both claims if one claim were to be dismissed.

[12] The excipient has not directed the Court to any kind of embarrassment that arose from paragraph 8.3. There is in any event nothing embarrassing in this sub paragraph. If there could be any that could be cured by further particulars for trial.

[13] In the circumstances I find that the exception has not been properly taken. I make the following order.

1. The exception is dismissed.

2. The defendant is ordered to pay costs of the exception.

L.P.Pakade

JUDGE OF THE HIGH COURT

COUNSEL FOR THE PLAINTIFF : Adv M. Jozana

Instructed by : B. Makade Incorporated

COUNSEL FOR THE DEFENDANT : Adv J L Hobbs

Instructed by : Messrs A S. Zono & Associates

Date heard : 23 May 2008

Date delivered : 29 May 2008

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