Man Financial Services (SA) (Pty) Ltd v Van der Westhuizen (1739/2014) [2016] ZANCHC 62 (25 February 2016)

Man Financial Services (SA) (Pty) Ltd v Van der Westhuizen (1739/2014) [2016] ZANCHC 62 (25 February 2016)

The court found that the reference to ABSA Bank Limited in the heading of the section 127 notice did not render the Particulars of Claim vague and embarrassing. When the notice is read as a whole, it is clear that Man Financial Services (SA) (Pty) Ltd is the credit provider demanding payment. The incorrect reference does not prejudice the excipient or prevent him from pleading to the Particulars of Claim. The exception does not strike at the root of the cause of action, and there is no non-compliance with section 127 of the National Credit Act that would render the pleading excipiable. The exception was therefore dismissed.

Citation
[2016] ZANCHC 62
Parties
Plaintiff: Man Financial Services (SA) (Pty) Ltd; Defendant: Jurgens Johannes van der Westhuizen
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
25 February 2016
Case Number
1739/2014
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
Erasmus, AJ
Legal Topics
National Credit Act, Exception Procedure, Vague and Embarrassing Pleading, Notice Requirements
Civil Procedure Commercial and Corporate National Credit Act Exception Procedure Vague and Embarrassing Pleading Notice Requirements

Case Brief

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Parties

Man Financial Services (SA) (Pty) Ltd

Plaintiff

Jurgens Johannes van der Westhuizen

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the Particulars of Claim are vague and embarrassing due to the reference to ABSA Bank Limited in the section 127 notice.
  2. 2 Whether the Particulars of Claim lack averments necessary to sustain a cause of action under sections 127, 129, and 130 of the National Credit Act.

Ratio Decidendi

The court found that the reference to ABSA Bank Limited in the heading of the section 127 notice did not render the Particulars of Claim vague and embarrassing. When the notice is read as a whole, it is clear that Man Financial Services (SA) (Pty) Ltd is the credit provider demanding payment. The incorrect reference does not prejudice the excipient or prevent him from pleading to the Particulars of Claim. The exception does not strike at the root of the cause of action, and there is no non-compliance with section 127 of the National Credit Act that would render the pleading excipiable. The exception was therefore dismissed.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed.
  • The excipient is ordered to pay the costs of the exception.