Atlantis Corporate Travel (Pty) Ltd v Scharli (2012/9344) [2013] ZAGPJHC 26 (20 February 2013)
- Citation
- [2013] ZAGPJHC 26
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- FHD Van Oosten
- Case number
- 2012/9344
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- FHD Van Oosten
- Case number
- 2012/9344
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the plaintiff's particulars of claim were vague and embarrassing because they failed to specify the dates on which the alleged defamatory statements were made and the persons to whom they were made. This lack of particularity was prejudicial to the defendant, who was entitled to know the case against him in order to plead properly. The requirements of Rule 18 regarding pleadings were not met, and the exception was accordingly upheld.
Court disposition
Exception upheld; paragraph 3 of the particulars of claim struck out; plaintiff granted leave to amend within 15 days; plaintiff to pay costs.
Orders
- The exception to paragraph 3 of the plaintiff's particulars of claim is upheld and the paragraph struck out.
- The plaintiff is granted leave to amend the particulars of claim within 15 days of the date of this order.
- The plaintiff is ordered to pay the costs of the exception.
02
Material facts
Parties
Atlantis Corporate Travel (Pty) Ltd
Plaintiff Counsel: Adv L HollanderMarc Scharli
Defendant Counsel: Adv NM Da Rocha03
Procedural history
Posture
Exception Application / Exception to Particulars of Claim
04
Questions and positions
Legal issues
- 01
Whether the plaintiff's particulars of claim are vague and embarrassing and lack sufficient particularity regarding the alleged defamatory statement.
- 02
Whether the defendant is prejudiced in pleading to the allegations as formulated.
Party arguments
- Applicant
- The plaintiff argued that the defendant's exception was procedurally defective due to the authority of the attorney signing the notice of exception. This point was abandoned after the defendant produced a certificate of right of appearance. Substantively, the plaintiff maintained that the particulars of claim were sufficient to inform the defendant of the case he had to meet.
- Respondent
- The defendant contended that the particulars of claim were vague and embarrassing, specifically because they failed to specify the dates on which the alleged defamatory statements were made and the persons to whom they were made. The defendant argued that this lack of particularity was prejudicial and prevented him from properly pleading to the claim.
05
Court’s reasoning
Legal principles
- 01
Rule 18 of the Uniform Rules of Court
Pleadings must contain sufficient particularity to enable the opposing party to know the case they must meet and to plead thereto.
- 02
General principles of pleading; see also Trope v South African Reserve Bank 1992 (3) SA 208 (T)
An exception will be upheld where the particulars of claim are vague and embarrassing and prejudicial to the defendant.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the plaintiff's particulars of claim were vague and embarrassing because they failed to specify the dates on which the alleged defamatory statements were made and the persons to whom they were made. This lack of particularity was prejudicial to the defendant, who was entitled to know the case against him in order to plead properly. The requirements of Rule 18 regarding pleadings were not met, and the exception was accordingly upheld.
Obiter and limits
- The point in limine regarding the authority of the attorney signing the notice of exception should have been raised under Rule 30 but was resolved by the production of a certificate of right of appearance.
- The normal rule that costs follow the event applies in exception proceedings.
Court disposition
Exception upheld; paragraph 3 of the particulars of claim struck out; plaintiff granted leave to amend within 15 days; plaintiff to pay costs.
- The exception to paragraph 3 of the plaintiff's particulars of claim is upheld and the paragraph struck out.
- The plaintiff is granted leave to amend the particulars of claim within 15 days of the date of this order.
- The plaintiff is ordered to pay the costs of the exception.
Source and reliance status
South Gauteng High Court, Johannesburg
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
NOT REPORTABLE
REPUBLIC OF SOUTH AFRICA
SOUTH
GAUTENG HIGH COURT
(JOHANNESBURG)
CASE NO: 2012/9344
DATE:20/02/2013
In the matter between
ATLANTIS CORPORATE TRAVEL (PTY) LTD...............................................PLAINTIFF
and
MARC SCHARLI.................................................................................................... DEFENDANT
Practice - exception to particulars of claim - cause of action based on defamation - oral defamatory statement alleged to have been made to named entities - particularity concerning the date/dates on which the alleged statement was made as well as the person or persons to whom it was made lacking - particulars of claim vague and embarrassing - exception upheld.
J U D G M E N T
VAN OOSTEN J:
[1] This is an exception noted by the defendant to the plaintiff’s particulars of claim on the basis that it is vague and embarrassing. Counsel for the plaintiff by way of a point in limine attacked the authority of the attorney who signed the notice of exception. Except that the point should have been raised under the Rule 30 procedure it was effectively laid to rest by a certificate of right of appearance of the attorney, handed in from the bar by counsel for the defendant.
[2] The plaintiff’s cause of action is based on defamation, it being alleged:
‘In and during November 2011 the defendant stated orally to clients of the plaintiff, being inter alia Geda Facett, ANC Woman’s League, Gauteng Legislator, and Cadbury, that the plaintiff used black employees’ credentials fraudulently to obtain its BEE certificate by faking promotions.’
The objection raised relates to this paragraph on the basis that it contains vague references to names without clarifying whether the reference is to legal entities or natural persons or individuals, and that the alleged oral statement, one must accept, would have been made to a person or persons and not the legal entity as such.
[3] The allegations contained in the paragraph under attack, in my view, are vague and embarrassing. The paragraph lacks particularity concerning the date/dates on which the alleged statement was made as well as the person or persons to whom it was made. The embarrassment is clearly prejudicial to the defendant who has to plead to these allegations. The defendant is entitled to know what the case against him is so as to properly plead thereto. Against the background of the requirements as to pleadings generally, provided for in Rule 18, the allegations we are here concerned with, clearly fail to meet the required standard of particularity. It follows that the exception must succeed.
[4] As to costs, the normal rule of costs following the event, applies.
[5] In the result the following order is made:
The exception to paragraph 3 of the plaintiff’s particulars of claim is upheld and the paragraph struck out.
The plaintiff is granted leave to amend the particulars of claim within 15 days of the date of this order.
The plaintiff is ordered to pay the costs of the exception.
_____
FHD
VAN OOSTEN
JUDGE
OF THE HIGH COURT
COUNSEL FOR PLAINTIFF : ADV L HOLLANDER
PLAINTIFF’S ATTORNEYS: ANTHONY HINDS
COUNSEL FOR DEFENDANT : ADV NM DA ROCHA
DEFENDANT’S ATTTORNEYS: EHLERS
ATTORNEYS
DATE OF HEARING: 19 FEBRUARY 2013
DATE OF JUDGMENT: 20 FEBRUARY 2013
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