Hassim v Lishiva (35381/2020) [2021] ZAGPJHC 120 (14 May 2021)

Hassim v Lishiva (35381/2020) [2021] ZAGPJHC 120 (14 May 2021)

The court found that the plaintiff's particulars of claim were sufficiently clear and contained the necessary material facts to enable the defendant to plead. The main and alternative claims were not mutually destructive and did not require an election at the pleading stage. The alleged lack of particularity regarding oral acknowledgements, tacit or implied terms, and loan details did not render the pleading vague and embarrassing. Any further detail required could be obtained through a request for further particulars, not by way of exception. The defendant failed to demonstrate serious prejudice or embarrassment. Accordingly, all grounds of exception were dismissed.

Citation
[2021] ZAGPJHC 120
Parties
Plaintiff: Akbar Hassim; Defendant: Andrew Mbengeni Lishiva
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 May 2021
Case Number
35381/2020
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
All four grounds of exception are dismissed. Costs awarded against the defendant.
Judges
Majavu
Legal Topics
Exception Procedure, Vague and Embarrassing Pleading, Cause of Action, Request for Further Particulars
Civil Procedure Exception Procedure Vague and Embarrassing Pleading Cause of Action Request for Further Particulars

Case Brief

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Parties

Akbar Hassim

Plaintiff

Andrew Mbengeni Lishiva

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim are vague and embarrassing within the meaning of rule 23(1).
  2. 2 Whether the particulars of claim lack necessary averments to sustain a cause of action.
  3. 3 Whether the defendant is prejudiced in pleading due to alleged lack of particularity.

Ratio Decidendi

The court found that the plaintiff's particulars of claim were sufficiently clear and contained the necessary material facts to enable the defendant to plead. The main and alternative claims were not mutually destructive and did not require an election at the pleading stage. The alleged lack of particularity regarding oral acknowledgements, tacit or implied terms, and loan details did not render the pleading vague and embarrassing. Any further detail required could be obtained through a request for further particulars, not by way of exception. The defendant failed to demonstrate serious prejudice or embarrassment. Accordingly, all grounds of exception were dismissed.

Court Disposition

All four grounds of exception are dismissed. Costs awarded against the defendant.

Orders

  • The first to fourth grounds of exception are dismissed.
  • The defendant is ordered to pay costs on a party and party scale, including the costs consequent upon the employment of counsel.