Firmpulse Trading CC and Another v Kleynhans and Another (5115/2023) [2024] ZAFSHC 166 (27 May 2024)
- Citation
- [2024] ZAFSHC 166
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- Opperman J
- Case number
- 5115/2023
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- Opperman J
- Case number
- 5115/2023
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the annexure to the particulars of claim, which purported to describe the farm implements sought to be vindicated, was drafted inappropriately, lacked sufficient detail, and was riddled with mistakes. The use of different languages in the pleadings was not fatal, but the vague and generic descriptions rendered it legally impossible for the defendants to respond or for the court to adjudicate the claim. The quantum claimed was unsupported by any indication of how the values were determined. The defects could not be cured at trial, as fair trial principles require both parties to be able to prepare their defence effectively. Consequently, the exceptions relating to the quantum and description of the items were upheld, and the annexure was struck out. The plaintiffs were granted one month to amend their particulars of claim.
Court disposition
Exceptions on the quantum and description of the claimed items are upheld; annexure struck out; plaintiffs to amend particulars of claim within one month; costs awarded against plaintiffs.
Orders
- The exceptions on the second ground (quantum of the plaintiffs' claim) and third ground (description and value of implements, equipment, and objects in the annexure) are upheld. Save as aforesaid, the exception on the first ground is dismissed.
- The respondents (plaintiffs) are ordered to pay the costs of suit as on party and party scale A.
- The plaintiffs (respondents) are afforded one month from the date of this order to amend their particulars of claim.
02
Material facts
Parties
Firmpulse Trading CC
Defendant Counsel: J DelportMichael Robert Lunderstedt
Defendant Counsel: J DelportHermanus Lukas Kleynhans
Plaintiff Counsel: E.J.J. NelMartha Cornelia Kleynhans
Plaintiff Counsel: E.J.J. NelAmounts and remedies
- Claimed Value of Farm Implements (annexure): ZAR 1,572,000
03
Procedural history
Posture
Exception Application / Exception Hearing Under Rule 23; Judgment on Exception
04
Questions and positions
Legal issues
- 01
Whether the particulars of claim and annexure provide sufficient detail to sustain a cause of action for rei vindicatio.
- 02
Whether the annexure describing farm implements is sufficiently detailed and appropriately drafted.
- 03
Whether the quantum and value of the claimed items are properly established in the pleadings.
- 04
Whether the plaintiffs should be afforded an opportunity to amend their particulars of claim.
Party arguments
- Applicant
- The excipients argued that the particulars of claim, specifically the annexure listing farm implements, are vague, lack sufficient detail, and do not enable the defendants to respond meaningfully. They contended that the annexure is drafted in Afrikaans while the summons is in English, contains mistakes, and generically describes items, making it impossible to identify the property or assess its value. They further submitted that the value claimed (R1,572,000.00) is unsupported and that the court cannot consider the annexure or its quantum. They requested that the annexure be struck out and the claim be amended.
- Respondent
- The respondents maintained that the annexure forms part of the particulars of claim and sufficiently identifies the items for the purposes of rei vindicatio. They argued that the court should consider both the list and the values attached, and that any lack of detail could be cured by further particulars or amendment. They requested that the exception be dismissed or, alternatively, that they be granted leave to amend their pleadings.
05
Court’s reasoning
Legal principles
- 01
Rule 18(4) of the Uniform Rules of Court
A pleading must contain a clear and concise statement of material facts with sufficient particularity to enable the opposite party to reply.
- 02
First National Bank Southern Africa v Perry NO and Others 2001 (3) SA 960 (SCA); Theunissen en Andere v Transvaalse Lewendehawe Koöp Bpk 1988 (2) SA 493 (A)
An exception will succeed only if the pleading is excipiable on every reasonable interpretation; a benevolent interpretation is applied, and minor defects can be cured by further particulars.
- 03
Unimark Distributors (Pty) Ltd v ERF 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T)
For rei vindicatio, the claimant must prove ownership, the property must exist and be identifiable, and the defendant must be in physical control at the time of action.
- 04
Christies Fish Supplies (Pty) Ltd v Ornelas Fishing Co (Pty) Ltd 1978 (3) SA 431 (C)
If an exception is allowed, the respondent is usually given an opportunity to amend the pleading within a stated time.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the annexure to the particulars of claim, which purported to describe the farm implements sought to be vindicated, was drafted inappropriately, lacked sufficient detail, and was riddled with mistakes. The use of different languages in the pleadings was not fatal, but the vague and generic descriptions rendered it legally impossible for the defendants to respond or for the court to adjudicate the claim. The quantum claimed was unsupported by any indication of how the values were determined. The defects could not be cured at trial, as fair trial principles require both parties to be able to prepare their defence effectively. Consequently, the exceptions relating to the quantum and description of the items were upheld, and the annexure was struck out. The plaintiffs were granted one month to amend their particulars of claim.
Obiter and limits
- Court documents must be drafted with utmost care and preferably in one language to avoid confusion.
- Minor defects in pleadings can be cured by further particulars, but fundamental defects affecting the ability to plead must be addressed before trial.
- The issue that the annexure does not form part of the text of the particulars of claim is not fatal, but it is prudent to include it for clarity.
Court disposition
Exceptions on the quantum and description of the claimed items are upheld; annexure struck out; plaintiffs to amend particulars of claim within one month; costs awarded against plaintiffs.
- The exceptions on the second ground (quantum of the plaintiffs' claim) and third ground (description and value of implements, equipment, and objects in the annexure) are upheld. Save as aforesaid, the exception on the first ground is dismissed.
- The respondents (plaintiffs) are ordered to pay the costs of suit as on party and party scale A.
- The plaintiffs (respondents) are afforded one month from the date of this order to amend their particulars of claim.
Source and reliance status
Free State High Court, Bloemfontein
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Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case no.: 5115/2023
Reportable: NO/YES
In the matter between:
FIRMPULSE
TRADING CC First Excipient (Registration number: 2004[…])
MICHAEL
ROBERT LUNDERSTEDT Second Excipient And
HERMANUS
LUKAS KLEYNHANS First Respondent
MARTHA
CORNELIA KLEYNHANS Second Respondent In re:
HERMANUS
LUKAS KLEYNHANS First Plaintiff
MARTHA
CORNELIA KLEYNHANS Second Plaintiff And
FIRMPULSE
TRADING CC First Defendant (Registration number: 2004[…])
MICHAEL
ROBERT LUNDERSTEDT Second Defendant
Coram: Opperman J
Heard: 17 May 2024
Delivered: 27 May 2024. This judgment was handed down in court and electronically by circulation to the parties' legal representatives via email and release to SAFLII on 27 May 2024. The date and time of hand-down is deemed to be 15h00 on 27 May 2024
Summary: Exceptions - Rule 23 of the Uniform Rules of Court
JUDGMENT
[1] Rule 18(4) of the Uniform Rules of Court states that:
Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his or her claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto.[1]
[2] Fair constitutional litigation is crucial. An exception in terms of rule 23 has at its core to serve this purpose and its principal use is to raise and obtain a speedy and economical decision on issues that are apparent on the face of the pleadings.
[3] In Member of the Executive Council, Department of Education, Free State Province v Superintendent-General for the Department of Education, Free State Province and Another [2008] ZAFSHC 156; [2008] ZAFSHC 45 (12 June 2008) the test to be applied in exception applications was enunciated to be:
[7] As far as paragraphs 1.2.1- 1.2.4 are concerned it is necessary to keep in mind what an excipient must establish before it can succeed with an exception:
The test on exception
(i) In order for an exception to succeed, the excipient must establish that the pleading is excipiable on every interpretation that can reasonably be attached to it. FIRST NATIONAL BANK SOUTHERN AFRICA v PERRY NO AND OTHERS 2001 (3) SA 960 (SCA) at 965D; THEUNISSEN EN ANDERE v TRANSVAALSE LEWENDEHA WE KOöP BPK 1988 (2) SA 493 (A) at 500 E - F.
(ii) A charitable test is used on exception, especially in deciding whether a cause of action is established, and the pleader is entitled to a benevolent interpretation. PERRY'S CASE supra at 972 1- J.
(iii) The court should not look at a pleading "with a magnifying glass of too high power." KAHN v STUART AND OTHERS 1942 CPD 386 at 391; PURDON v MULLER 1961 (2) SA 211(A) at 214 e - 215 F. In the latter case it was stated: "minor blemishes in, and unradical embarrassments caused by, a pleading can, and should be, cured by further particulars."
(iv) "The pleadings must be read as a whole; no paragraph can be read in isolation." SOUTHERNPORT DEVELOPMENTS (PTY) LTD v TRANSNETLTD 2003 (5) SA 665 (W) at 669 A - B.
[4] The excipients/defendants (excipients) complain that the claim by the respondents/plaintiffs (respondents) does not contain the necessary averments to sustain a cause of action and must be struck.
[5] The cause of action is one of rei vindicatio and the respondents want the return of certain farm implements. Three requirements must be met for a claim to be based on the rei vindicatio: There must be proof of ownership on the part of the person instituting the action; the property must exist and be identifiable; and the defendant must be in physical control of the property at the time the action is instituted.[2]
[6] The excipients in the instance took issue with the annexure that was attached to the particulars of claim that is supposed to describe and identify the items that must be returned and in the alternative; the value of which must be paid by the excipients. This is the overarching bone of contention. These are the grounds for complaint against the annexure as described by counsel for the respondents:
1. First, they contend that the court cannot have regard to the list of equipment attached to the particulars of claim.
2. Second, they argue that the court cannot consider the value of the equipment set out in the attached list.
3. Third, they allege that the description of the equipment in the list lacks detail.
[7] The facts of the case show that adjudication of the third ground above will also dispose of the issues on the first and second grounds.
[8] During argument counsel for the excipients magnanimously agreed that the court may allow for the opposing parties to amend and file again to bring their claim in order.
[9] As said; exceptions, generally speaking, serve as a means of objecting to pleadings which are not sufficiently detailed, lack lucidity or are incomplete. It affects the ability of the other party to plead thereto.
[10] Court documents must at all times be drafted with the utmost care; in the least it must be drafted in one language. In the instance the combined summons was drafted in English and the annexure attached in Afrikaans. The use of different languages is not fatal but added to that is that the annexure is riddled with mistakes and the items are vaguely and generically described. This makes it legally impossible to react or reply or litigate further. There is not any indication in the particulars of claim as to how the value of the items that are depicted in the same annexure was established. It is unacceptable to expect from the excipients to blindly reimburse the respondents to the value of R1 572 000.00.
[11] One cannot wait for the defects to be cured during trial because the fair trial - principle demands that both parties be placed in a position to prepare their defence effectively; to litigate effectively.
[12] The annexure just speaks for itself and cannot be tolerated in its current form and contents. It must be struck as legally inappropriate. This is the annexure:
DETAILS
VALUE Planter MF 3 ry hydrolies met spiutpomp en tenk R 90 000,00 Planter MF 3 ry (lift) met spiutpomp R 50 000,00 MF skrop se raamwerk met wiel R 20 000,00 Selgeboude lusemplanter R 20 000,00 LM skofffel net stikolof bakkie R 15 000.00 Onkruidspuit op wiele meet 20001 tenk en nuwe pomp R 100 000,00 Ford K1010 kajuit en bak met tyres R 50 000,00 Verkeie soos ontrent 300 ysterpale 900 droppers, 50 staal pyd, ander paie R 150 000,00 Ou wol skuerstafel R 20 000,00 Emmer met spesiale jakals vlagysters -10 R 20 000,00 Verskele los ysters voor oliekamer en stoor R 50 000,00 Agter werkswinkel verkele yster, tenkstaander en staal R 50 000,00 1 x MF offsit 2.1m breed R 15 000,00 4 x MF raamploee 3 skaar R 12 000,00 3 x MF Balkploee 4 skaar R 45 000,00 3 x Ou lusemsyners R 3 000,00 1 x 4 tol hooi hark R 20 000,00 1 x veevoer waertjie R 10 000,00 2 x Skoffeltjies R 20 000,00 3 x Stolmaster beitteploee R 60 000,00 1 x Big ox blou beiteploeg R 10 000,00 l x LM 5 tand rippers R 50 000,00 I x 3 ry ripper saadbed voorbereider R I 00 000,00 2 x 1 ry "moffie" rippers R 20 000,00 l x John Shearer saadbed voorbereider R 80 000,00 I x Dortsky hammermeuk R 50 000,00 1 x 3 ry roleg R 30 000,00 I x 2 ry roleg R 12 000,00 1 x Laai graaf (hydrolies) Verskeie ouderdele, saad en planterkarrerjies R 50 000,00 uit kamer van melkstal (toegesluit) R 30 000.00
Verskeie ander los artikels in melkstal R 10 000.00 Treinspoor trekpale en ander akerpale R 50 000,00 l x misskraper (Jan Uys) R 15 000,00 1 x Kunsmis toediener R 10 000,00 1 x Outydse mielieplanter R 5 000,00 1 x Enjin ophyser van H-staal R 20 000,00 1 x Skaapselvervoeder R 10 000,00 3 x Onderdak voerders vir wild R 15 000,00 1 x Baal laai vurk R 10 000,00 5 x Ronder baa! houers R 25 000,00 Verskeie rolle 2de hande draad R 10 000,00 I x 2.4m x 2.4m Koelkamer R 60 000,00 1 x Ford K1010 Enjin R 80 000,00
GRAND TOTAL R 1572 000,00
[13] The result of the above is that the exception succeeds in as far as the annexure is to be struck out on the basis that it was inappropriately drafted, the court cannot consider the value of the equipment set out in the annexure and that the description of the equipment in the annexure lacks detail to identify the items. The issue that the annexure does not form part of the text of the particulars of claim is not fatal but it would be prudent to draft the particulars of claim in such a manner as to include it therein.
[14] If an exception is allowed, the court will usually give the respondent an opportunity to file an amended pleading within a stated time. In service of the interest of justice[3] and as recommended by counsel for the excipients, a reasonable opportunity will be granted to amend the particulars of claim.
[15] Given the fact that the excipients are successful and the poor quality of the particulars of claim and the annexure; the respondents must carry the costs.
[16] Order of Court:
Accordingly, it is ordered that:
1. The exceptions on the second ground (In re: The quantum of the plaintiffs' claim) and the third ground (In re: The description and value of implements, equipment, and objects in the annexure to the plaintiffs' particulars of claim) are upheld. Save as aforesaid the exception on the first ground is dismissed.
2. The respondents (plaintiffs) are ordered to pay the costs of suit as on party and party scale A.
3. The plaintiffs (respondents) are afforded one (1) month from the date of this order to amend their particulars of claim.
OPPERMAN J
Appearances For excipients/defendants:
J
DELPORT Instructed by: Van der Merwe Dorning Maponya Inc. c/o Honey Attorneys Bloemfontein For the respondents/plaintiffs: E.J.J. NEL Instructed by: Jansen and Jansen Attorneys c/o Symington de Kok Attorneys Bloemfontein
[1] Substituted by GNR.3397 of 12 May 2023.
[2] Unimark Distributors (Pty) Ltd v ERF 94 Silvertondale (Pty) Ltd 1999 (2) SA 986 (T).
[3] Christies Fish Supplies (Pty) Ltd v Ornelas Fishing Co (Pty) Ltd 1978 (3) SA 431 (C).
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