Mokone v Investec Bank Limited (41469/2012) [2014] ZAGPPHC 143 (26 March 2014)

Mokone v Investec Bank Limited (41469/2012) [2014] ZAGPPHC 143 (26 March 2014)

The court found that the real cause of complaint was that the defendant's plea was vague and embarrassing, rather than lacking averments necessary to sustain a defence. However, the applicant failed to follow the procedural requirement of giving notice to the defendant to remove the cause of complaint before taking the exception, as required by Rule 23(1). The court held that the requirement to give notice is obligatory, and since no such notice was given, the exception could not succeed. The court dismissed the exception and awarded costs against the applicant.

Citation
[2014] ZAGPPHC 143
Parties
Applicant: Simon Nkuba Mokone; Respondent: Investec Bank Limited
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
26 March 2014
Case Number
41469/2012
Procedural Posture
Civil Procedure / Exception to Plea
Outcome
Exception dismissed with costs awarded against the applicant.
Judges
Tlhapi V.V
Legal Topics
Exception Procedure, Vague and Embarrassing Pleadings, Malicious Institution of Proceedings
Civil Procedure Delict Exception Procedure Vague and Embarrassing Pleadings Malicious Institution of Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Simon Nkuba Mokone

Applicant

Investec Bank Limited

Respondent

Procedural Posture

Civil Procedure / Exception to Plea

Legal Issues

  1. 1 Whether the defendant's plea fails to disclose a defence to the plaintiff's claim.
  2. 2 Whether the defendant's plea is vague and embarrassing under Rule 23.
  3. 3 Whether the defendant's denial of animus iniuriandi is sufficiently pleaded.

Ratio Decidendi

The court found that the real cause of complaint was that the defendant's plea was vague and embarrassing, rather than lacking averments necessary to sustain a defence. However, the applicant failed to follow the procedural requirement of giving notice to the defendant to remove the cause of complaint before taking the exception, as required by Rule 23(1). The court held that the requirement to give notice is obligatory, and since no such notice was given, the exception could not succeed. The court dismissed the exception and awarded costs against the applicant.

Court Disposition

Exception dismissed with costs awarded against the applicant.

Orders

  • The exception is dismissed with costs.