Dennis Lapham v Basil Nyabadza

### Preamble
1
HH 135-11
HC 2427/10
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DENNIS LAPHAM

versus

BASIL NYABADZA

HIGH COURT OF

GOWORA J

, 1 October 2010 and 29 June 2011

Opposed Court Application

S Njerere, for the excipient

G V Mamvura, for the plaintiff

GOWORA J: The plaintiff herein issued summons against the excipient, the defendant, on 15 April 2010. After filing an appearance to defend, the excipient sought further particulars to the plaintiff’s claim on 4 May 2010. These were filed on 7 May 2010. Attached to the further particulars was a note from the excipient dated 19 October 2009. On 4 June the defendant then filed this exception. The exception is as follows: The defendant has excepted to the plaintiff’s summons in that it is bad in law and does not disclose a cause of action and further that it is vague and embarrassing in that-

The summons does not disclose “a true and concise statement of the nature, extent and grounds of the cause of action” as required by law; and the plaintiff has contented himself with simply stating the relief that he seeks.

In argument, the excipient has contended that the summons fail to meet the peremptory requirements of r 11 (c) as read with subrule (1) of r 12, Order 3 of the High Court Rules 1971. The excipient argued further that such a failure renders the summons incurably bad and liable to be set aside by this court. It is further argued that the plaintiff has simply claimed in his summons the following:

“Delivery of 30mt Ammonium Nitrate and 10mt compound D fertilizer”

It is also suggested in argument that the plaintiff has made no attempt whatsoever  to state what ‘bond of law’ entitles the plaintiff to seek this from the excipient, what the claim is and the grounds thereof. The plaintiff, it is argued, is simply reticent and does not state the alleged grounds.

The plaintiff has in his heads of argument contended that the claim by the excipient that the claim against him fails to meet the pre-emptive requirements of r 11 (c) is frivolous and vexatious and the plaintiff has in response, drawn the attention of the court to the particulars of claim attached to the summons. In addition the plaintiff has referred the court to the further particulars furnished to the defendant upon his request. The plaintiff suggests that in light of the particulars attached to the summons and the further particulars supplied to the excipient, the claim that the summons are vague and embarrassing is frivolous and that the exception was a mere reaction to a notice to plead filed by the plaintiff after the defendant had been furnished with the further particulars. It is contended that the exception is not well taken and that it should be dismissed with costs on a punitive scale.

In my view the excipient has correctly stated the law in relation to the requirements that a claim should not just give a concise statement of the nature, extent and grounds of the plaintiff’s claim but that the cause of action should also be stated together with the nature of the relief being sought.

Order 3, r 11 states:

“Before issue every summons shall contain-

n/a

n/a

a true and concise statement of the nature, extent and grounds of the cause of action and the of the relief being or remedies sought in the action

n/a”

The plaintiff attached to his summons particulars of claim which were to the following effect:

“The plaintiff is Dennis Lapham, a farmer whose address for service in this matter is care of his under mentioned legal practitioners.

The defendant is Basil Nyabadza, a farmer whose head office is at Stand 16982 Sande Crescent Graniteside,

In November 2007 at Devonia Farm, Goromonzi district the defendant entered into a barter deal with the plaintiff in terms of which he took delivery of the plaintiff’s 15 tonnes of groundnuts and promised to deliver to the plaintiff 30mt of ammonium nitrate and 10mt of compound D fertilizer in exchange. The defendant promised to deliver the fertilizer by the 10th November 2007.

Despite demand, the defendant has failed or neglected to deliver the 30mt ammonium nitrate and 10mt compound D fertilizer to the plaintiff”.

The intent behind a summons is two fold. Firstly it is to bring the defendant before the courts and secondly it is meant to intimate to the defendant the nature of the claim he has to meet and respond to. The latter reason is the basis for requiring that the grounds on which the claim is based should be stated in the particulars of claim. The claim proffered by the plaintiff is based on an alleged barter agreement between the parties. The contract of barter is essentially the same as that of purchase and sale, except that the consideration that the one party will receive is not money but some other item or commodity. The claim is one for specific performance, recovery of the value of the item withheld or damages for non-performance.

Every pleading, whether it be summons and particulars of claim or plea, must set out the complete chain of relevant facts relied on. The omission of any linking fact breaks the chain and then renders the conclusion false. If there is such a break an exception is sustainable. Whenever a pleading is vague or imprecise it will be exceptionable only if the vagueness is due to the omission of a necessary averment, or if the vagueness is such as to make the whole pleading unintelligible rendering the pleading embarrassing to the other party. It is only when the vagueness of the pleading is such that it embarrasses the other by preventing him from clearly understanding the case he will be called upon to meet that the pleading can be excepted to on the grounds of it being vague and embarrassing.

“Where a statement is vague, it is either meaningless, or capable of more than one meaning. It is embarrassing in that it cannot be gathered from it what ground is being relied on, and therefore it is also something which is insufficient in law to support in whole or in part the action or defence; accordingly I think that it is not a good objection to an exception that is taken on the ground that the averment complained of is vague and embarrassing. The expression is one which we are quite familiar with. It is an exception which has often been taken in this court, and so far as I recollect this is the first time that this objection is not well founded”. Per DOVE-WILSON JP in Learthen v Tredoux (1911) 32 NLR 346 at 348.

The policy of the courts is against entertaining exceptions which are not substantial and do not go to the root of the case; and where there is no embarrassment exceptions will not be sustained which merely increase costs without serving any good purpose. Courts will also not sustain an exception which is taken merely on technical grounds. See Barclays Bank International Ltd v African Diamond Exporters (Pty) Ltd (2)  SA 100 (W).

“It cannot be repeated too often that the object of an exception is not to embarrass one’s opponent or to take advantage of a technical flaw, but to dispose of the case or a portion thereof in an expeditious manner, or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception”. Per DE VILLIERS AJ in Lobo Properties (Pty) Ltd v Express Lift Co (SA) (Pty) Ltd 1961 (1) SA704 (C).

It is trite that the onus is on the excipient to satisfy the court that good grounds exist to have the exception upheld. Although the defendant has excepted on the grounds that the summons is vague and embarrassing and does not disclose a cause of action, I find no substance in the complaint. The plaintiff has given the nature of the claim is disclosed. The plaintiff seeks to rely on an alleged barter deal between the two. The plaintiff has pleaded that in exchange for a specified tonnage of groundnuts handed over to the defendant the latter was supposed to, and in fact undertook to deliver to the plaintiff fertilizer. Despite the undertaking the defendant has failed to deliver the fertilizer as agreed. Clearly the plaintiff is seeking an order for specific performance from the defendant.

In my view the plaintiff has pleaded the contract between the parties; that the plaintiff has performed in terms of the barter deal; that the defendant undertook to exchange fertilizer in specific quantities in return for the groundnuts and that in defiance of the agreement, the defendant has failed to deliver the fertilizer as agreed. I find nothing vague about the particulars of claim. The defendant has been fully informed of the claim he has to meet and the basis upon which such claim is premised. In addition, an undertaking signed by the defendant himself has been furnished by way of further particulars.

The purpose of an exception is that a pleading lacks averments which are necessary to sustain an action or defence in order to dispose of the claim without leading evidence at trial. The exception must go to the root of the claim or defence. In the circumstances of this case I cannot fathom how the defendant has been embarrassed by the particulars or alleged lack of particularity thereof. The contract has been pleaded as the basis for the claim and the defendant has been fully informed of the claim. It was incumbent upon the defendant to establish that he has been embarrassed. I do not believe that the defendant can, with all honesty, claim that he does not know or understand the claim that the plaintiff has brought to court, the nature of the claim or the grounds upon which the claim is premised. After all, a copy of his own undertaking has been availed to him by way of further particulars.

It seems to me that, in argument before me, the excipient brought in a completely new ground for excepting. Miss Njerere argued that the particulars of claim attached by the plaintiff to his summons replace a declaration and that they do not replace the particulars requires under r 13 of the High Court rules. She argued that the particulars of claim that the plaintiff seeks to rely on in this matter are not endorsed on the summons and thus are not sufficient to discharge the plaintiff’s obligation under r 11 (c).

My understanding of the argument is that the summons is defective for want of form, in that it has not complied with the obligations to have the particulars endorsed on the summons itself. The excipient did not allege this as a ground for excepting to the summons. This argument seems to have been raised after the excipient had sight of the plaintiff’s heads of argument to the effect that the plaintiff had attached particulars of claim to its summons and that as a result the defendant had not been embarrassed as he had been fully informed of the nature of the claim and the grounds thereof in those particulars. It is trite that an excipient is confined to the grounds raised in the exception. See Haarhoff v  1955 (2) SA 424 (E).

In the premises I find that the exception is not well taken. The defendant has not satisfied me that grounds exist for the upholding of the exception. I am firmly of the view that the exception is frivolous as contended by the plaintiff. I refuse to uphold the exception and it is dismissed.

The plaintiff has asked for costs to be meted against the defendant on the higher scale as opposed to party and party. Such a scale denotes a punishment meted by the court against a litigant. My attitude in this matter is that the exception was taken, not so much because the defendant believed that the plaintiff’s summons did not disclose a cause of action, but to delay the prosecution of this case. The undertaking which was furnished to the defendant with the further particulars was surely sufficient to inform him of the nature of the case he was facing if indeed he was not adequately informed by the summons and the particulars of claim endorsed thereon. Despite this, the defendant went on to file an exception even in the face of evidence of his own undertaking. The defendant was taking advantage of the latitude permitted in the rules of court to file a technical exception. I am of the view that in doing so he was abusing court process and this court is at large to show its displeasure at his antics through an appropriate order of costs. I think costs on a high scale are warranted.

The exception is dismissed. The excipient is ordered to pay the plaintiff’s costs at a scale as between a legal practitioner and his client.

Honey & Blanckenberg, excipient’s legal practitioners

Scanlen & Holderness, plaintiff’s legal practitioners