Published Date: July 27, 2022

Rule 23 of the Uniform Rules of Court enables a litigant, within the time-period afforded of course, to deliver an exception in response to a pleading. An exception can be filed when a pleading is considered vague and embarrassing; or if it lacks averments which are necessary to sustain an action or a defence.

  1. A pleading is considered vague and embarrassing when it is unclear, unconcise and is not phrased in such a way that the other party may reasonably and fairly be required to reply to it.
  2. On the other hand, when a cause of action does not clearly appear from the factual allegations made in the pleading, this underpins an exception on the basis that the pleadings do not sustain a cause of action.

How should exceptions be approached? In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA the Court held that:

Exceptions should be dealt with sensibly. They provide a useful mechanism to weed out cases without legal merit. An over – technical approach destroys their utility”.

When considering an exception, the Court will assess whether on all possible readings of the pleaded facts no cause of action is made out. Furthermore, the pleadings must be read together as a whole, and no paragraph is to be considered in isolation.

When correctly used, an exception can dispose of a case in a quick and cost-effective way. Exceptions inappropriately raised could however delay proceedings, especially where the true motive of the exception is for a defendant to avoid having to deal with the main issues in a case. Excipients who abuse the process to achieve delay run the risk of a punitive costs order.

Although exceptions are often misused, the case of Investec Bank Limited v ZJ and C Gumbi (2022), in which the Pretoria High Court upheld the exception taken by Investec, is a good example of the use of Rule 23 to “weed out” cases without merit.

In February 2016, the parties entered into a home loan agreement in which Investec advanced money to the Gumbis to purchase a property. The loan was repayable over 20 years. The Gumbis defaulted and Investec, after complying with the necessary notice obligations, issued summons for the amount outstanding and an order declaring the property executable. An order was granted by default (the Gumbis did not file a plea) and the property was sold at a public auction.

The Gumbis then issued summons against Investec. They alleged that the steps taken by Investec prior to issuing the summons (the service of a notice of default) and the legal proceedings (issuing summons and obtaining default judgment) instituted by Investec did not comply with the terms of the home loan agreement. Furthermore, that Investec was required to institute legal proceedings in a manner that is lawful, reasonable and fair without causing financial harm to the plaintiffs, that Investec owed the plaintiff’s legal duties and had to take reasonable steps to avoid the possibility of the plaintiff’s suffering damages, which it failed to do. Investec excepted on the basis that, being a claim in delict, the pleadings did not contain any allegations in relation to wrongfulness, and therefore disclosed no cause of action.  Investec further alleged that the particulars of claim were vague and embarrassing for not being in line with the terms of the home loan agreement.

In considering Investec’s exception, the Court considered the particulars of claim together with the annexures thereto. Annexure D to the particulars of claim was the default judgment order which reflected that it was granted by agreement between the parties. On this basis alone the Court had concluded that the particulars of claim did not disclose a cause of action.

Furthermore, the notice of default that was served on the Gumbis was attached as annexure B to the particulars of claim and, reflects that Investec informed the plaintiffs of all their rights and the available options to bring their indebtedness up to date. The notice, therefore, constituted a legally compliant notice of default in accordance with the terms of the agreement and the National Credit Act.

The Court confirmed that the content of the annexures attached to the particulars of claim did not support the averments made in the plaintiffs’ particulars of claim and rendered the particulars of claim vague and embarrassing. It held further that the particulars of claim did not disclose a cause of action.

By upholding Investec’s exception, the Court has guarded its resources and has brought finality to the case expeditiously. Where exceptions are appropriate, they should be taken.

Kelly Mzobe
Associate | Attorney