Dispersion Technology (SA) (Pty) Ltd t/a Pelo Healthcare v State Tender Board and Another (15182/2004) [2008] ZAGPHC 58 (21 February 2008)

IN THE HIGH COURT OF SOUTH AFRICA­

(TRANSVAAL PROVINCIAL DIVISION)

Case Number: 15182/2004

Date: 21/02/2008

UNREPORTABLE

In the matter between:

DISPERSION TECHNOLOGY (SA) (PTY) LTD

t/a PELO HEALTHCARE Applicant

and­

THE STATE TENDER BOARD First Respondent

THE MINISTER OF HEALTH Second Respondent

JUDGMENT

LOUIS VISSER, AJ:

1. This is an application for leave to appeal against a judgment and orders made by me in a reserved judgment, handed down on 4 September 2004, upholding an exception to a declaration on the ground that it is vague and embarrassing as well as on the ground that it discloses no cause of action. The present applicant is the plaintiff in an action for review instituted against the present respondents as defendants. I shall refer to the parties as they were before me at the time when the exception was argued. The defendants were represented by Mr Tokota SC, with him Mr Ngoepe and the plaintiff was represented by Mr du Toit se, assisted by Mr Meyer. The parties are again so represented in the present application, except that Mr Du Toit presently finds himself without the assistance of his erstwhile junior, Mr Meyer.

2. On the appointed date for the hearing of the application for leave to appeal Mr Du Toit argued that there is a reasonable prospect that another court may come to a different decision to mine. Counsel argued that, with reference to paragraphs 83, 84 and 85 of the judgment (judgment pp36 and 37), that I had definitively decided that the relief sought by the plaintiff is not sustainable in law. These grounds are contained in paragraphs 11, 12 and 13 (pp14 and 15) of the plaintiff's application for leave to appeal. This, it was submitted, constituted a finding which is final in its effect, and therefore the whole judgment and all the orders are thereby rendered appealable.

3. The plaintiff also relied on several misdirections by me in referring to the unamended declaration of the plaintiff and not to the declaration as it stands after the amendments had been effected.

4. The defendant's counsel thereupon insisted that the plaintiff should detail the alleged instances of misdirections. In his reply plaintiff's counsel referred to paragraphs 1.1 to 1.9 of the application for leave to appeal (pp2-4). It soon became apparent that Mr Du Toit's arguments would take an appreciable amount of time to complete. As I was in the throws of dealing with a part heard trial with counsel in attendance, I was unable to afford Mr Du Toit the time to do so. Because of the time problem which I have referred to, and because of Mr Tokota's insistence that details be provided to Mr du Toit's arguments, I requested written heads of argument, detailing the instances upon which Mr Du Toit relies and to which the defendant would have an opportunity to respond. Counsel kindly agreed to do me the service of providing written heads of argument to me, which both counsel did, and for which I am grateful.

5. In his written argument, Mr Du Toit submitted that the defendant's heads of argument dealt exclusively with the argument that the order against which leave to appeal is sought, was not final in its nature. Reliance was placed by Mr Tokota on Zweni v Minister of Law and Order 1993 (1) SA 523 (A) and Trope v South African Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264 (A). Mr Du Toit conceded that it can now be taken as settled that an order upholding an exception on the ground that the pleading is vague and embarrassing, is not appealable. On the other hand, argued counsel, an order upholding an exception on the ground that the pleading does not disclose a cause of action is appealable as it is final in its effect. Counsel referred to Trope's case supra at 270F/G-H/I, where it was stated:

"Where an exception is granted on the ground that a plaintiff's particulars of claim fail to disclose a cause of action, the order is final to the claim as pleaded and therefore final in its effect. (Liquidators, Myburgh, Krone & Co Ltd v Standard Bank of South Africa Ltd and Another 1924 AD 226 at 229, 230.) Leave to amend will be of no avail to a plaintiff in such a case unless he is able to amend his particulars of claim in such a way as to disclose a cause of action. On the other hand, where an exception is properly taken on the ground that the particulars of claim are vague and embarrassing, by its very nature the order would not be final in its effect All that the Plaintiff would be required to do-in such a case would be to set out his cause of action more clearly in order to remove the source of embarrassment".

It is noted that Mr du Toit did not refer in his argument to the proviso" unless he is able to amend his particulars of claim in such a way as to disclose a cause of action" stated in the judgment.

6. Mr du Toit pointed out that in the present case, the exception is based on the declaration being both vague and embarrassing and disclosing no cause of action (judgment para 17 p 7 and para 14 of exception p117 of paginated papers). Mr du Toit did not refer me to any authority where this situation was dealt with. In stead, counsel submitted that my findings on vagueness and embarrassment and that no facts were alleged by the plaintiff in its declaration to sustain a cause of action are so interwoven that the findings on vagueness and embarrassment relate directly to the findings that no cause of action was made out. By way of example reference was made to various passages in the judgment, such as paragraph 27 p12, paragraph 29 p13, paragraph 32 p15, paragraph 34 p16, paragraph 37 p17, paragraph 45 p20, paragraph 47 p21, paragraph 49 p22, paragraph 52 p23, paragraph 53 p24, paragraph 56 p26, paragraph 62 pp28 and 29, paragraph 64 p29, paragraph 75 p33, paragraph 77 p33, paragraph 82 p36 and paragraph 84 p37.

7. I have again carefully re-read the paragraphs mentioned by Mr du Toit and I regret to state that I disagree with his evaluation of the contents thereof. What these paragraphs dealt with was a consideration of the question whether or not the declaration was vague and embarrassing, and I believe-that a study of those paragraphs will bear this out. The purpose of having considered the declaration paragraph by paragraph was not intended to consider whether each paragraph was vague and embarrassing, but rather to discover whether the averments made could be considered to be sufficiently clear so that the defendants would be able to discover what was being alleged, and be able to plead thereto. It is my understanding of our law that an exception that a pleading is vague and embarrassing, strikes at the formulation of the cause of action and not the actual validity of such stated cause of action. Therefore an exception that a pleading is vague and embarrassing is not directed at a particular paragraph. It goes to the cause of action which must be demonstrated to be vague and embarrassing. (Jowell v Bramwell-Jones 1998 (1) SA 836 (W) at 899G). In my respectful view, this is demonstrated in paragraph 100 p48 of my judgment, which reads:

"In the circumstances I have concluded that the plaintiff's declaration is vague and embarrassing in respect of the aspects referred to. The declaration also to my mind, fails to disclose a cause of action in the respects pointed out, particularly in respect of the alternative claims for damages based upon the common law. "

8. Consequently, where reference is made in the judgment to the issue of cause of action, it is brought into the context of vagueness and embarrassment. But, moreover, I believe that I was at pains not to say anything in my judgment which could pre-­empt another court which will hear the matter eventually. This is apparent, I believe from the following paragraphs in my judgment: Paragraph 73:

"In respect of the issue of vagueness and embarrassment, Mr du Toit argued that paragraphs 5.1 to 5.17 of the declaration are not simply a narration of evidence that is to be led at the trial. Those paragraphs contain the facta probanda constituting the grounds on which the plaintiff relies, he submitted. The facta probantia to prove the pleaded facta probanda need not be pleaded and will be led at the trial. A cause of action does not exist in the air but a litigant must plead the underlying facts (facta probanda) on which he/she relies. I believe that this is precisely what Mr Tokota argued the plaintiff has not done."

Paragraph 92:

"It is, in my view, patently obvious that the declaration is either vague and embarrassing in that it failed to provide facts and/or circumstances to support each of the conclusions which are sought to be drawn, or in that the declaration is contradictory of itself in the respects alluded to."

Paragraph 99:

"It was also submitted that paragraphs 7 and 8 fail to disclose a cause of action for the statutory claim for damages. I cannot agree. The necessary averments are indeed made in the declaration that the plaintiff is entitled to paragraphs 7.1 and 7.2. Whether such claim is sustainable in law on the facts averred, and therefore constitutes a cause of action, is another matter."

And paragraph 105:

"But it is unnecessary and perhaps inappropriate for me to venture an opinion in this regard. It will be for the trial court to decide the issue. What is clear, however, is that the alleged entitlement to "damages" by the plaintiff is ex facie the wording of s8(1)(c)(ii)(bb) of PAJA, not authorised. Steenkamp's case makes it clear that there is a distinction to be drawn between "damages" and "compensation". It appears therefore that the plaintiff's statutory claim cannot be based on P AJA. "

9. The above mentioned passages from the judgment in my view contradict the submissions made by Mr du Toit that I made a decision definitive of the rights of the plaintiff in respect of its entitlement to claim damages under PAJA or the common law.

10. Reference was made to paragraph 83 p36 of the judgment where I stated:

"What is clear, however, is that the alleged entitlement to 'damages' by the plaintiff is ex facie the wording of s8(1)(c)(ii)(bb) of PAJA, not authorised... It appears therefore that the plaintiff's statutory claim cannot be based on PAJA".

It was contended by Mr du T oit that I misdirected myself by making "a decision definitive of the rights of plaintiff in respect of its entitlement to claim damages under PAJA or common law." In my view these submissions are incorrect in that they do not accurately reflect the meaning and intent of the paragraph 83. I thought I made it clear in that paragraph of the judgment that it was unnecessary to express an opinion in regard to the claim based on PAJA as that was an issue to be decided by a trial court in the review action. What should be clear is that I dealt with the question of vagueness and embarrassment, and not with the question of a cause of action per se.

11. Mr du Toit also referred to paragraph 85 p37 of the judgment, where I stated:

"It was further submitted that in paragraphs 12 to 14 (the reference should have been to paras 10.2 to 10.4) of the declaration, the reference to the failure to award the tender to the plaintiff, does not give rise to a delictual claim for consequential damages by a disappointed tenderer and that the plaintiff's declaration therefor does not disclose a cause of action. Again, I agree."

Again, this must be read in context with the rest of the judgment, especially those paragraphs to which I have referred above.

12. The main principles for determining as to whether or not an order or judgment is appealable has been set out in various decisions including Zweni's case (supra) at 532 where it was held:

“A judgment or order' is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings (Van Streepen & Germs (Pty) Ltd case supra at 5861-587B; Marsay v Oilley [1992] ZASCA 114; 1992 (3) SA 944 (A) at 962C-F).”

I do not agree that my judgment can be regarded as being" definitive of the rights of the parties' or that it has the "effect of disposing of at least a substantial portion of the relief claimed in the main proceedings”.

In Trope's case (supra), it was emphasised at 269F-I-270A-F that:

“The appealability of the order of the Court a quo depends, inter alia, on whether it has a final and definitive effect. The effect of an order upholding an exception has recently been considered by this Court in Group Five Building Ltd v The Government of the Republic of South Africa, represented by the Minister of Public Works and Land Affairs. (The judgment, which has not yet been 'reported, was delivered on 18 February 1993 in case No 400/91.) The particulars of claim in that case were held to be excipiable on the ground that they disclosed no cause of action. One of the issues which arose on appeal was whether the trial Judge, upon granting the exception, was correct in dismissing the action at the same time. In the course of his judgment Corbett CJ pointed out (at p 26 of the typed judgment) that in cases where an exception has successfully been taken to a plaintiff's initial pleading on the ground that it discloses no cause of action, 'the invariable practice of our Courts has been to order that the pleading be set aside and that the plaintiff be given leave, if so advised, to file an amended pleading within a certain period of time’.”

13. Where an exception has been upheld on the ground that the pleading is vague and embarrassing, it strikes at the formulation of the cause of action and not its legal validity. The following extract from the judgment of Bristowe J in Johannesburg Municipality v Kerr 1915 WLD 35 at 37 was quoted with approval in the Group Five Building Ltd case (supra) at 31-2 of the typed judgment:

“As was said by Innes CJ in Coronel v Gordon Estate Gold Mine (1902 TS at 115) 'the effect of a successful exception is that the entire declaration is quashed', meaning as I understand that it is an absolute bar to any relief being obtained on that declaration. But it does not take the declaration off the file or place the case in the same position as though no declaration had been delivered. Otherwise the proper order when an exception is upheld would be to extend the time for filing a declaration, not to give leave to amend. Leave to amend presupposes that there is something which can be amended. Still less can it be said that a successful exception destroys the action. If this were so then the case of Currey v Germiston Municipality 1910 LLR 191, where an order for absolution under Rule 41 was granted after a declaration had been successfully excepted to and had not been amended, would have been wrongly decided. It seems to me therefore that the action in the present case is still on foot and that there is a declaration in existence. 'This Court held in the Group Five Building Ltd case supra that the Judge of first instance had erred in dismissing the action, and the learned Chief Justice remarked as follows in this regard (at p 28-9 of the typed judgment ):'An order dismissing an action puts an end to the proceedings and means that if the plaintiff wishes to pursue his claim on a different pleading he must start de novo. This may have drastic consequences for the plaintiff, particularly where it results in the prescription of the claim. In my opinion, it would be contrary to the general policy of the law to attach such drastic consequences to a finding that the plaintiff's pleading discloses no cause of action.”

The case of Group Five has been reported as Group Five Building Ltd v Government of the Republic of South Africa (Minister of Public Works and Land Affairs) [1993] ZASCA 4; 1993 (2) SA 593 (A)

14. As I understood the arguments, the nub of the defendants' complaint was that the plaintiff's declaration was vague and­ embarrassing in that it lacked the necessary averments to sustain ­a cause of action. As I have found, the declaration contained conclusions of law without factual supporting averments. In Trope's case (supra) at 273A the court stated:

“It is trite that a party has to plead - with sufficient clarity and particularity - the material facts upon which he relied for the conclusion of law he wishes the Court to draw from those facts (Mabaso v Felix 1981 (3) SA 865 (A) at 875A-H; Rule 18(4)). It is not sufficient, therefore, to plead a conclusion of law without pleading the material facts giving rise to it. (Radebe and Others v Eastern Transvaal Development Board 1988 (2) SA 785(A) at 792J-793G.)”

This is what I found lacking in the plaintiffs declaration. It appears to me that the plaintiff has chosen the wrong course of action by moving the present application. Its remedy lay in the amendment of the declaration in terms of the order.

15. In any event, Mr du Toil's arguments seem to suggest that where there are findings on vagueness and embarrassment as well as absence of a cause of action in a judgment, the findings on vagueness and embarrassment must be negated and only the findings on absence of a cause of action must be considered in order to determine the appealability of the judgment. No authority was presented for this point of view. The essence of the judgment and orders were that the declaration is vague and embarrassing. The plaintiff was afforded the opportunity to remove the vagueness and embarrassment, which it elected not to do. Had the declaration been amended and there remained a complaint that it did not disclose a cause of action, that could have been the subject of a further exception. But first, the vagueness and embarrassment had to be removed. There is nothing in the judgment which "irretrievably close(s) the door to the Plaintiff's litigation against the Defendant, as was submitted by Mr du Toit.

16. What is clear from the above is, I think, that the main issue was vagueness and embarrassment, and that I refrained for so far as I could from making findings on the absence of a cause of action in any respect, although the two issues are interrelated. In the circumstances, I am unable to agree that the fact that reference was made to cause of action, can serve to render the whole judgement appealable. It must be remembered that there is a distinction between an exception that a pleading fails to disclose a cause of action, and an exception that a pleading is vague and embarrassing in that it does not contain the necessary averments to support a cause of action.

17. But assuming Mr du Toit to be correct in his submission that the judgment represents independent findings of an absence of causes of action, there must still be grounds to believe that there is a reasonable prospect of success that another court might come to a different conclusion. In this regard Mr du Toit has emphasised that the Supreme Court of Appeal may come to a different conclusion in the present case to the judgment in Steenkamp N.D. v Provincial Tender Board, Eastern Cape 2006 (3) SA 151 (SCA) and 2007 (3) SA 121 (CC), because in that case, the PAJA was not in issue. I do not believe that Mr du Toit has made out a cogent case for this argument. I would also regard it as somewhat presumptuous for me to allow an application for leave to appeal in order for the Supreme Court of Appeal to reconsider its own judgments, albeit an obiter judgment. In any event. I am not convinced that my findings in this respect are substantially wrong, so as to afford a reasonable prospect of success to the plaintiff.

18. Mr du T oit submitted that because the issues of vagueness and embarrassment and absence of cause of action were interwoven (which I have dealt with above), the leave granted to the plaintiff in the judgment and paragraph 2 of the order, can serve no purpose. The argument was that if the declaration was already amended to remove a complaint of vagueness and embarrassment, there cannot be any basis for a litigant to be placed in the unenviable position that he is forced again to amend a declaration which, in its amended form, is not vague and embarrassing. This argument begs the question whether the amended declaration remained vague and embarrassing, which I have found it does.

19. Mr du Toit also submitted that I misdirected himself by deciding the exception with reference to the plaintiff’s unamended declaration and not to the amended declaration. It was submitted that the document dated 9 October 2003 is not a memorandum, but that it is the first decision of the State Tender Board annexed to the amended declaration as "DT2" as referred to in paragraph 5.4 of the declaration. Mr du Toit stated that paragraph 5.4 was not amended but prior to amendment the said decision of 9 October 2003 was apparently inadvertently annexed to the declaration as part of annexure "DT1", being the last page thereof. Prior to amendment of the declaration, annexure "DT2" was annexed to the declaration as a copy of a draft order. This, said Mr du Toit, was also clearly an oversight. Counsel submitted that these mistakes were rectified in the amended declaration. It was further submitted that I had regard to paragraph 5.3 of the declaration in its unamended form, while the original paragraph 5.3 was deleted and substituted with a new paragraph 5.3, which It was submitted made it clear that the plaintiff is only relying for its allegation on paragraph 2.3.1 of the memorandum and the relevant pages of annexure "C" attached to the memorandum and forming part of annexure "DT 1 ". There was therefore no need to refer to the other paragraphs of the memorandum and the annexures referred to therein as the plaintiff is not relying thereon. The alleged misdirections also extended to me having referred to paragraphs 5.16 to 5.19 of the original declaration which were deleted in their entirety. It was submitted that reference was made in the judgment to papers which were not before court. Counsel further submitted that there were various problems with the papers as they served before me which gave rise to me referring to incorrect annexures. The truth of the matter is that all those documents were in fact placed before me, and Mr du Toit at no stage brought any problems with the papers to my attention when the matter was originally argued. The answer to these submissions, however, is to be found in the fact that the alleged incorrect references all refer to the issue of vagueness and embarrassment, which finding, as I have stated above, is not appealable.

20. Mr du T oit referred to paragraph 87 p37 of the judgment, where I said:

“Strong reliance was placed by Mr du Toit on Transnet Ltd v Sechaba Photo Scan (Pty) Ltd 2005 (1) SA 299 (SCA) and Minister of Finance and Others v Gore N.D. 2007 (1) SA 111 (SCA). Both these cases are distinguishable from the present in that fraud was found to have influenced the decision of the Tender Board.”

When read in context, it will be clear that I had inquired into the allegations by the plaintiff in support of its allegation of fraud, and found there to be none. I held that the declaration did not contain factual allegations to support the conclusion that fraud was­ committed. On the contrary an administrative error was alleged to have been discovered as a result of which the items were to be cancelled. This, on the face of it, contradicts the conclusion of fraud, which the plaintiff asked to be made in the declaration. This is what I was referring to in the quoted paragraph, and it is against this background that the submission by Mr du Toit that I overlooked the fact that the plaintiff's case is indeed based on fraud and therefore the decisions of Transnet and Gore are not distinguishable but on all fours with the present matter, must be evaluated. While it is true that in the declaration the plaintiff alleged fraudulent conduct on the part of the officials in the Office which precipitated the decision of the State Tender Board, the factual allegation upon which reliance was placed for this conclusion do not support it, and the declaration is for that reason as well, vague and embarrassing. In Transnet's case fraud was conceded and the case only concerned quantum (p.301 para.4 and 6). Consequently the question of allegations of fraud were not applicable. In the Gore case a number of facts and circumstances were pleaded to sustain the conclusion that fraud had been perpetrated. (at 118 para.1 0). I do not believe that any findings by me in the judgment can be interpreted as deciding that the plaintiff has no cause of action. On the contrary, in paragraph 84 of the judgment I agreed with the proposition that a claim based on fraud is sustainable. This means that I expressly agreed, contrary to the views expressed on behalf of the plaintiff, that the claim based on fraud under common law is sustainable in this case. Hence the plaintiff was allowed to amend its particulars of claim. The amendment was aimed at allowing the plaintiff to make the necessary averments demonstrating fraud on the part of the defendants as opposed to merely drawing conclusions of law as it did in paragraph 10 of the declaration.

21. Mr Tokota pointed out that the complaint of the plaintiff about the amended declaration which was allegedly not considered by me, was that after the original declaration was served on the defendants a Rule 23 notice was served on the plaintiff on the basis that the particulars of claim were vague and embarrassing and/or alternatively lacked the necessary averments which are necessary to sustain a cause of action. After the notice in terms of Rule 23 was served the plaintiff served the defendant with a notice of amendment on the 22nd of November 2006. Substantially the notice of amendment left the main thrust of the claim intact save that certain paragraphs were deleted such as paragraphs 5.16, 5.17, 5.18 and 5.19. This removal of these paragraphs did not detract from the main claim. Paragraph 5.3 was substituted though the essence is substantially the same save that there is a reference to Annexure "C" attached to Annexure "DT1". Paragraph 6.3.5 and paragraph 7.3 and 7.4 were also deleted. The deletion of these paragraphs also did not detract from the basis of the claim. The amendments were effected accordingly. Since the complaints as contained in the Rule 23 were not addressed or sufficiently addressed the defendants took an exception to the plaintiff’s declaration on the basis as stated. The matter was subsequently set down, argued and the exception was upheld. The plaintiff was granted leave to amend its particulars of claim within a period of 14 days from the date of the order. The plaintiff has failed to avail itself of this opportunity. It does not help the plaintiff to state that there is no way that the declaration can be amended. There is indeed a way to amend the declaration by simply removing the causes of complaint which the plaintiff has failed to do.

22. An amendment does not delete the old declaration as such as it is remains part of the papers. (Trope (supra) at 270B). If I had, as I apparently did, refer to certain paragraphs which have been deleted, it is my view that the trust of the exception as a whole deals with the declaration with reference to the amended pages and any reference to the deleted portions can simply be ignored as being irrelevant. The plaintiff was obliged in terms of Rule 28(5), to effect the amendment by replacing the old pages by amended pages and if annexures are necessary such ought to be replaced as well. In this particular case the plaintiff failed to comply with this rule in that it left the old declaration as forming part of the whole proceedings by numbering the same from page 3 to page 58 thus giving the impression that such particulars are still intact. It simply filed the amended pages and numbered them from page 80 to page 109. This arrangement could, and apparently did, cause confusion to all parties concerned including counsel acting for the defendants. When the matter was argued reference was made to annexures which are attached to the old declaration without objection from Mr du Toit. It is not now open to plaintiff to complain that references to that old declaration is made when judgment is delivered. As pointed out, the essence of the judgment deals with the amended declaration and any reference to deleted paragraphs did not detract from the fact that the paragraphs that are dealt with in the judgment still remain intact even in the amended particulars of claim. The amendment of paragraph 5.3 is insignificant in that it only refers to Annexure "C" of the memorandum which is, when read with 5.3 of the old declaration, the same thing. This annexure and the paragraph referred to as 2.3 was dealt with in argument and I was completely aware of the contents of Annexure "C" when I wrote my judgment. The fact is that in its amended form paragraph 5.3 is vague and embarrassing in that paragraph 2.3.1 of the memorandum referred in this paragraph, firstly appears in the old declaration at page 35 and deals with the highest points to specification not with recommendation as such, and if one turns to page 37 it is not apparent that this is Annexure "C". Whichever way one looks at it this paragraph the reference to the annexure is vague and embarrassing.

23. It is not open to the plaintiff to appeal against a ruling that it should amend its particulars of claim on the grounds that a reference was made to the old declaration. The proper course in appropriate circumstances which was open to the plaintiff, was to have apply in terms of Rule 42(c) for the court to correct the patent errors in the judgement and thereafter to amend its particulars of the declaration.

24. Even an exception which attacks the particulars of claim as disclosing no cause of action does not necessarily entail the appealability thereof. It all depends on whether the legal validity of the claim as such is attacked or whether the manner in which it is formulated can be amended so as to disclose a cause of action. It has been held that in such cases the proper order is to set aside the whole declaration and give the plaintiff leave to amend, if so advised, within a certain stipulated period of time. This practice invariably applies to particulars of claim which are vague and embarrassing but a fortiori applies to particulars of claim which are alleged not to disclose a cause of action. (Trope's case (supra) at 269G-I).

25. It would appear that it is not correct to suggest that a pleading which has been held to be excipiable on the grounds that it does not disclose a cause of action is conclusively final in its effect in all cases. It depends on whether the formulation thereof was the main source of attack and such formulation can be amended. In my view the plaintiff is able to reformulate its particulars of claim so as to make the necessary averments with regard to the common law claim of fraud in order to sustain a cause of action. At 269E in Trope's case the learned Judge said:

“I do not believe that the appellants are unable to amplify their particulars of claim in the relevant respects. Their refusal to do so may have a detrimental effect on material aspects of their case, but cannot in my view affect or change the true nature of the order of the Court a quo.”

These remarks appear to be apposite to the present matter.

26. I do not intend to deal seriatim with each attack of the plaintiff on my judgment, as I have dealt with the principles underlying those attacks.

27. I conclude that the matter is not appealable. Certainly not in respect of my findings of vagueness and embarrassment. For so far as I might be wrong in this view, and it be considered that I did make definitive findings in respect of the absence of a cause of action, it has not been demonstrated that there is a reasonable prospect of success in that regard on appeal. In my view the plaintiff ought to have amended its declaration, as I believe it was able to do. Alternatively, the plaintiff for some reason could not countenance the incorrect references to which I have referred, the proper remedy to have pursued was in terms of Rule 42(1)(C) and not the present application.

In the result, the following orders are made:

The application for leave to appeal is dismissed with costs, such costs to include the costs attendant upon the employment of two counsel.

L J L VISSER, AJ

ACTING JUDGE OF THE HIGH COURT

(For Plaintiff: Adv F DU TOIT SC)

(For Defendants: Adv B R TOKOTA, SC & N A R NGOEPE)