Bensure Management Services (Pty) Ltd v Pyke (2355/2011) [2012] ZAECPEHC 20 (27 March 2012)

Bensure Management Services (Pty) Ltd v Pyke (2355/2011) [2012] ZAECPEHC 20 (27 March 2012)

The court found that paragraph 5 of the plaintiff's particulars of claim was vague and embarrassing because it failed to set out the material facts necessary to support the allegation of breach of contract. The pleading was terse and lacked factual allegations regarding the manner in which business was allegedly removed by the defendant. The term 'remove' was undefined in the agreement, and the pleading did not clarify whether business was removed from the plaintiff or its underwriter, or both. This lack of clarity left the defendant guessing as to the case she would have to meet, resulting in prejudice. The court rejected the plaintiff's argument that the alternatives were sufficiently...

Citation
[2012] ZAECPEHC 20
Parties
Plaintiff: Bensure Management Services (Pty) Limited; Defendant: Deborah Glen Pyke
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
27 March 2012
Case Number
2355/2011
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld with costs; plaintiff granted leave to amend particulars of claim within twenty-one days.
Judges
Smith
Legal Topics
Exception Procedure, Vague and Embarrassing Pleading, Breach of Contract
Civil Procedure Commercial and Corporate Exception Procedure Vague and Embarrassing Pleading Breach of Contract

Case Brief

Summary, issues, holding and outcome

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Parties

Bensure Management Services (Pty) Limited

Plaintiff

Deborah Glen Pyke

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether paragraph 5 of the plaintiff's particulars of claim is vague and embarrassing and thus excipiable.
  2. 2 Whether the plaintiff pleaded mutually exclusive alternatives without sufficient particularity.
  3. 3 Whether the lack of material facts in the particulars of claim prejudices the defendant.

Ratio Decidendi

The court found that paragraph 5 of the plaintiff's particulars of claim was vague and embarrassing because it failed to set out the material facts necessary to support the allegation of breach of contract. The pleading was terse and lacked factual allegations regarding the manner in which business was allegedly removed by the defendant. The term 'remove' was undefined in the agreement, and the pleading did not clarify whether business was removed from the plaintiff or its underwriter, or both. This lack of clarity left the defendant guessing as to the case she would have to meet, resulting in prejudice. The court rejected the plaintiff's argument that the alternatives were sufficiently...

Court Disposition

Exception upheld with costs; plaintiff granted leave to amend particulars of claim within twenty-one days.

Orders

  • The exception is upheld with costs.
  • The plaintiff is granted leave to amend its particulars of claim within twenty-one (21) days from the date of this judgment.