Northern Cape Livestock Vryburg Co-op Ltd v Grootbos Voerkrale (Pty) Ltd and Another (1880/2023) [2025] ZANWHC 117 (14 July 2025)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

CASE NUMBER: 1880/2023

Reportable: NO

Circulate to Judges: NO

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between:

NORTHERN CAPE LIVESTOCK VRYBURG CO-OP LTD EXCIPIENT And GROOTBOS VOERKRALE (PTY) LTD FIRST RESPONDENT MAHEM’S ABATTOIR (PTY) LTD SECOND RESPONDENT In Re GROOTBOS VOERKRALE (PTY) LTD FIRST PLAINTIFF MAHEM’S ABATTOIR (PTY) LTD SECOND PLAINTIFF And NORTHERN CAPE LIVESTOCK CO-OP LTD DEFENDANT

CORAM: OOSTHUIZEN-SENEKAL AJ

Date judgment reserved: 12 June 2025

The judgment was handed down electronically by circulation to the parties’ representatives via email. The date and time for hand-down is deemed to be 14 July 2025 at 10H00am.

ORDER

[1] The defendant’s exception against the Particulars of Claim of the first plaintiff is upheld with costs, to be taxed on Scale B;

[2] The defendant’s exception to the Particulars of Claim of the second plaintiff is upheld with costs, to be taxed on Scale B;

[3] The plaintiffs are afforded a period of 20 days from the date of this order to deliver a notice to amend their Particulars of Claim, with a view to remove the causes of complaint contained in the defendant’s Notice of Exception;

[4] Should any of the plaintiffs fail to timeously deliver a Notice of Intended Amendment to its Particulars of Claim, the claim of such plaintiff shall ipso facto be deemed dismissed.

JUDGMENT

OOSTHUIZEN-SENEKAL AJ:

Introduction

[1] This matter came before me on 12 June 2025 for the hearing of an exception raised by Northern Cape Livestock Vryburg Co-Op, the defendant (the “Excipient”) to Grootbos Voerkrale and Mahem’s Abattoir, the plaintiffs’, amended particulars of claim. The excipient contends that the pleadings are vague and embarrassing. Resultantly, the pleadings fail to comply with Rule 18(10) of the Uniform Rules of Court (“the Rules”). As a consequence, the excipient is prejudiced in its ability to plead or assess the quantum of damages.

[2] The plaintiffs oppose the exception on both procedural and substantive grounds. They argue that the defendant, having previously accepted its amendment without objection, is now precluded from raising an exception. Substantively, they argue that their particulars is not vague or embarrassing. They contend that any further detail the defendant seeks, pertains to evidence rather than pleading.

[3] For purposes of this judgment, I will refer to the parties as cited in the main action.

Background

[4] Summons was issued in August 2023. The defendant initially filed a Rule 30 read with Rule 23(1)(a) notice on 28 August 2023 (the “first objection”), alleging that the original particulars of claim were vague and embarrassing. In response, the plaintiffs served a notice of intention to amend, and the amended particulars of claim were formally delivered on 20 November 2023.

[5] The defendant did not object to the proposed amendment. However, on 6 December 2023, the defendant filed a second Rule 30 read with Rule 23(1)(a) notice (“second objection”) raising substantially the same concerns. This was followed by the present exception.

[6] In the main action the plaintiffs allege that on 14 September 2022, the defendant negligently permitted cattle infected, or potentially infected, with foot-and-mouth disease (FMD) to intermingle at its auction, resulting in the plaintiffs’ cattle being placed under government quarantine.

[7] The first plaintiff’s cause of action relates to a claim for the loss of turn over and costs of feeding during the two-week quarantine period. The second plaintiff claims for lost income and additional operational costs due to its inability to slaughter the usual number of cattle.

Submissions by the Excipient/Defendant

[8] The excipient/defendant submits that both plaintiffs’ claims are defective for want of essential particularity and thus are both vague and embarrassing.

[9] The first plaintiff claims delictual damages in the form of lost turnover amounting to R20, 096,124.00 and feed costs of R752, 223.73. The second plaintiff claims R1,057,113.72 for lost slaughtering fees and R149, 526.96 for increased operating costs.

[10] The defendant argues that these figures are unsupported by essential factual averments such as:

1) Production costs;

2) Overhead expenses;

3) Feed conversion ratios;

4) Average animal weight gains; and

5) Sale prices per kilogram before and after quarantine.

[11] The defendant argues that delictual damages must reflect a diminution in patrimony as referred to in Trotman v Edwick[1] and not gross turnover or revenue. In the absence of pleading the nett profit and factors that would inform such a calculation, the defendant is left to speculate the extent of the plaintiff’s loss.

[12] In the present matter, the defendant raises significant procedural objections relating to the manner in which the plaintiff has framed their particulars of claim. At the core of the defendant’s contention is the assertion that the pleading fails to set out the essential factual foundation required to properly assess the quantum of the claim. This failure, according to the defendant, results in substantial prejudice and undermines the fairness of the

proceedings.

[13] The first basis of the defendant’s complaint is that the plaintiffs have not pleaded sufficient factual material to enable the defendant to reasonably assess the quantum of the damages claimed. In the absence of details such as the nature of the losses suffered, the calculations supporting the claimed amount, or the basis upon which the figures are derived, it argues that it is unable to form a proper view on the merits or extent of the claim. This lack of information directly impedes the defendant’s ability to engage meaningfully with the claim. It prevents the defendant from considering settlement negotiations or conducting a targeted forensic investigation

[14] Secondly, the defendant argues that prejudice arises from this lack of particularity. Prejudice in the context of exceptions lies not merely in the inconvenience of unclear pleadings but in the inability to respond meaningfully to the allegations contained therein. A vague pleading creates uncertainty and obliges the defendant to speculate on the case it must meet. This violates the fundamental requirement of procedural fairness, which insists that a litigant must know the case it is expected to answer. Without knowing the basis of the damages claimed, it is handicapped in its ability to marshal the appropriate facts, witnesses, and legal arguments to defend itself effectively.

[15] Thirdly, the defendant argues that it is not enough to merely allege a total revenue loss without contextual facts. A narrative supported by material facts is required[2]. Accordingly, the claim as it stands forces the defendant to speculate, which is prejudicial and contrary to Rule 18(10).

[16] In sum, the defendant argues that its objection is not technical but substantive. It rests on the principle that effective litigation depends on clear articulation of claims and defences. Without the requisite factual foundation, the defendant is placed at a disadvantage, both procedurally and substantively. This undermines both the principles of procedural fairness and the constitutional imperative of access to courts on equitable terms. Therefore, the defendant argues that the exception should be upheld and that the plaintiffs be directed to amend the pleadings in compliance with the Rules.

[17] The defendant also requests, in the alternative, that the matter be referred to oral evidence, arguing that the alleged irregularities in the procurement of the plaintiffs’ cattle and the factual matrix surrounding the damages require ventilation at a hearing. This request echoes the caution expressed in Valor IT v Premier, North West Province and Others[3], where disputes of fact on the papers concern compliance with mandatory statutory procedures, oral evidence may be necessary to

ensure procedural justice.

Submissions by the Plaintiffs

[18] The plaintiffs contend that the defendant, previously, accepted the amendment by not objecting to it and cannot now raise an exception based on vagueness. The plaintiffs’ claim that the argument conflates procedural acquiescence with substantive sufficiency. The Rules do not preclude an exception merely because an amendment was accepted without objection, particularly if the complaint relates to a deficiency in the newly pleaded facts.

[19] In response to the exception, the plaintiffs submit that their particulars of claim, when read as a whole, are both substantively adequate and procedurally compliant. They argue that their cause of action is clear and intelligible, meeting the requirements set out in Rule 18. In particular, the plaintiffs contend that their pleading contains a concise and coherent statement of the material facts upon which the claim is based, and that it enables the defendant to understand the nature of the case it must meet.

[20] A central plank of the plaintiffs’ argument is the distinction between facta probanda and facta probantia. Facta probanda are those material allegations that a party must plead in order to establish a cause of action or defence. In contrast, facta probantia are the evidentiary details that serve to prove those material facts.

[21] The plaintiffs maintain that the exception improperly conflates the two, demanding a level of evidentiary detail that is not required at the pleading stage. They rely on long-established authority that pleadings are not meant to contain evidence, but rather the essential facts upon which the party relies. They referred the court to McKelvey v Cowan NO[4], where the Supreme Court of Appeal made this distinction clear, affirming that while pleadings must state material facts with sufficient particularity, they are not required to set out the evidence by which those facts are to be proved[5].

[22] Further, the plaintiffs contend that the appropriate procedural mechanisms for obtaining more detailed financial or technical data are not exceptions, but rather discovery and trial. Counsel on behalf of the plaintiffs argue that once the issues are delineated by the pleadings, the defendant will have the opportunity, through the normal pre-trial procedures, to obtain the supporting documentation and calculations necessary for a more detailed understanding of the claim.

[23] The exception, they suggest, is being used as a tactical tool to demand premature disclosure of evidence, rather than to address any genuine vagueness or embarrassment.

[24] The plaintiffs also take the position that the technical and financial details complained of by the defendant, such as feed conversion ratios, starting weights, and similar metrics, are not material to the determination of whether a valid cause of action exists. While such figures may be relevant at the stage of proving the extent of damages, they do not go to the root of the claim itself.

[25] The plaintiffs argue that a pleading should only be struck down as vague and embarrassing where the deficiency is such that the defendant is genuinely unable to plead to it or suffers actual prejudice. This principle, the plaintiffs contend was laid down in Jowell v Bramwell-Jones and Others[6], where the court emphasized that a pleading must be “vague to the point of embarrassment” and must cause real prejudice to the excipient for an exception to succeed.

[26] In sum, the plaintiffs maintain that their pleadings meet the required legal standard, and that the defendant’s complaint lies not with the legal sufficiency of the claim, but with a desire for greater evidentiary detail, an objective better pursued through discovery than by exception. As such, they contend that the exception ought to be dismissed.

Legal Framework

[27] The importance of clear, concise, and properly structured pleadings cannot be overstated. Two key provisions in the Rules, Rule 18 and Rule 23, operate in tandem to ensure that disputes are framed with sufficient clarity to facilitate fair and efficient adjudication. Rule 18 sets out the substantive requirements for drafting pleadings, while Rule 23 provides the procedural mechanism for objecting to those pleadings where they are defective.

Rule 18: Clarity and Particularity in Pleadings

[28] Rule 18 mandates that all pleadings must contain a “clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer... with sufficient particularity to enable the opposite party to reply thereto.” Rule 18(3) requires that each cause of action or defence be set out in separate paragraphs. Furthermore, Rule 18 (10) states that in claims for damages, the quantum must be stated in a manner enabling the defendant to reasonably assess it.

[29] The purpose behind these requirements is to inform the opposing party of the case they must meet. Rule 18(4) reinforces this by obliging parties to set out material facts, not merely conclusions of law, with clarity and detail. This ensures that litigation proceeds on a defined basis, eliminating surprises at trial and enabling proper case management.

Rule 23: Mechanism for Challenging Defective Pleadings

[30] Where a party believes that an opposing pleading fails to comply with the standards set out in Rule 18, Rule 23 allows for an exception to be taken. Specifically, Rule 23(1) permits a party to except to a pleading on the basis that it does not disclose a cause of action or defence, or that it is vague and embarrassing or vexatious. Before doing so, Rule 23(2) requires the excipient to afford the opposing party an opportunity to remove the cause of complaint, typically within 15 days. If the complaint is not cured, the exception may then be filed, with the excipient obliged to clearly state the grounds of objection (Rule 23(3)).

[31] The rationale behind this procedure is to dispose of legally or procedurally defective pleadings at an early stage, thereby conserving judicial resources and focusing litigation on genuine disputes.

Case Law on Vagueness and Embarrassment

[32] Courts have developed significant jurisprudence around the application of exceptions, particularly those based on vagueness and embarrassment. In Jowell, the court laid down the test, holding that an exception on this ground should only succeed if the pleading is “vague to the point of embarrassment” and causes actual prejudice to the excipient. The prejudice must arise from the excipient's inability to respond effectively to the pleading.

[33] This principle was echoed in Trope v South African Reserve Bank[7], where the court held that the test involves two inquiries:

1) whether the pleading lacks particularity to the extent that it is vague, and

2) whether the vagueness amounts to embarrassment that prejudices the excipient.

[34] The burden of proof rests squarely on the excipient to establish both that the pleading is vague and that such vagueness results in embarrassment that materially prejudices the ability to plead. The principle was applied in HI NO v Strauss[8] where the court reiterated that exceptions should only succeed where the pleading is so vague that it materially hampers the excipient’s

ability to respond, and that they should not be used to compel evidentiary disclosure at the pleading stage.

Duty to Plead Material Facts

[35] It is well-established that parties must plead the material facts that support their claim or defence, not merely conclusions of law. In First National Bank of SA Ltd v Perry NO and Others[9], the Supreme Court of Appeal confirmed that a pleading devoid of factual foundation cannot survive an exception on the basis that it fails to disclose a cause of action.

[36] Similarly, in McKelvey, the court stressed that: “a plaintiff should know the case he is seeking to make and it should not be for the defendant to guess at it.” Incomplete or conclusory pleadings that force the defendant to speculate are inherently prejudicial and violate the principles enshrined in Rule 18.

Detail vs Materiality: Requests for Particulars

[37] The courts have also distinguished between a lack of material facts and a lack of detail. As Heher J observed in Jowel, where the deficiency relates to minor or evidentiary details, the appropriate remedy is to seek further particulars, not to raise an exception. This distinction upholds the principle that exceptions should be reserved for pleadings that are fundamentally

flawed, not those that merely require elaboration.

The Constitutional Perspective

[38] A cautionary note was sounded by the Constitutional Court in Pretorius and Another v Transport Pension Fund and Another[10], which warned against an overly technical application of procedural rules. The Constitutional Court emphasized that while clarity in pleadings is essential, procedural formalism should not obstruct access to justice. Exceptions must not be sustained where doing so would undermine the constitutional imperative of resolving disputes in a fair, just, and expeditious manner.

Misuse of Exceptions

[39] Furthermore, courts have repeatedly cautioned against the use of exceptions as a tactical tool to delay litigation. In Minister of Police v Du Plessis and Others[11], the Supreme Court of Appeal stated the following:

“The purpose of pleading is to define the issues between the parties. That purpose is not served by an overly technical approach that seeks to exploit minor deficiencies for tactical advantage rather than to resolve the real dispute. An exception is not a vehicle to force a plaintiff to plead evidence or to engage in a fishing expedition. Its abuse undermines the efficient resolution of disputes and burdens the court unnecessarily.”

[40] Thus, while Rule 23 allows a defendant (excipient) to object to a vague and embarrassing pleading, the court in Du Plessis made it clear that the rule’s purpose is to ensure fairness and efficiency in litigation, not to create an avenue for strategic delay or harassment.

Discovery and the Pleading of Damages

[41] A central issue is whether the information the defendant seeks, namely overhead costs, weight gain, and meat grading is required at the pleading stage or can properly be left for discovery.

[42] The court in Nasionale Aartappel Koöperasie v PwC[12] cautioned against allowing actions to proceed based on vague damages claims that are only clarified during discovery, as this frustrates

trial preparation and causes prejudice.

[43] While Jowell and similar cases permit some detail to be deferred, that applies where the core facts of the damages claim are sufficiently clear.

Here, the plaintiffs claim lost turnover as delictual damages, which, by definition, requires a showing of nett patrimonial loss.

[44] Gross revenue or turnover is not a valid measure of delictual damages. In Trotman the court emphasized that delictual damages must restore the plaintiff’s patrimony, meaning, the nett position had the delict not occurred.

Evaluation

[45] The plaintiffs have set out the fact of the quarantine, the defendant’s alleged negligence, and the general nature of their business operations. However, their damages claim, articulated as “total turnover lost,” remains unsubstantiated and devoid of the factual particulars required to evaluate the true extent of the loss.

[46] In the context of a commercial enterprise, alleging lost income without addressing the associated costs presents an incomplete and misleading picture of the alleged loss. This renders the pleading vague and embarrassing, particularly since the plaintiffs possess, or ought to possess, the financial records necessary to provide the required clarity.

[47] The court accepts that not every evidentiary detail must be pleaded. However, where the quantum itself forms an essential component of the claim and is based on facts within the plaintiff’s exclusive knowledge, then those

facts must be pleaded with sufficient particularity. The defendant cannot be expected to guess whether the plaintiffs’

lost “turnover” translates into a genuine economic loss.

[48] Accordingly, the plaintiffs’ reliance on Jowell, is misplaced in this case. The exception does not demand evidence, but rather the material facts that underpin the pleaded

damages, such as production inputs, operational costs, and sales metrics. Such facts are not peripheral; they are central to establishing patrimonial loss with the degree of precision required at the pleading stage.

[49] The plaintiffs’ failure to address their cost base, profit margins, or overhead structure, while claiming a large turnover as loss, impedes the defendant’s ability to assess the claim, formulate a plea, or make a settlement offer. The defendant is left to respond to broad generalities, thereby incurring a risk of surprise and unnecessary costs at a later stage.

[50] The defendant has demonstrated both vagueness and prejudice sufficient to justify upholding the exception.

Conclusion

[51] The plaintiffs’ amended particulars of claim, while asserting a cause of action, fail to comply with Rule 18(10) in relation to the pleading of damages. The failure to set out the basis for calculating nett loss renders the pleadings vague and embarrassing.

[52] The prejudice to the defendant is not hypothetical, it is real and procedural, flowing from its inability to plead meaningfully or engage with the quantum of damages in any substantive way.

[53] The exception is accordingly upheld. However, the plaintiffs will be afforded a final opportunity to amend their particulars of claim to cure the identified deficiencies.

Costs

[54] The general rule is that costs follow the result. There is no basis to depart from that rule. The defendant has been required to bring this application due to the plaintiffs’ failure to plead their damages with sufficient clarity.

[55] Accordingly, the plaintiffs must bear the costs of the exception on the ordinary party-and-party scale.

Order

[56] In the result, the following order is made:

[3] The plaintiffs are afforded a period of 20 days from the date of this order to deliver a Notice to amend their Particulars of Claim, with a view to remove the causes of complaint contained in the defendant’s Notice of Exception;

CSP OOSTHUIZEN-SENEKAL

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

For the Plaintiffs Adv. A.P Ellis

Instructed by: Jassat

Mitchell Inc

Klerksdorp

c/o Bruce Loxton Inc

20 Cooke Street

Mahikeng

Email: cachet@loxinc.co.za

For the Defendant: Adv. M.G Hitge

Email: law@mhitge.co.za

Instructed by: Kotze

Low & Swanepoel

Vryburg

c/o Smit Neethling Attorneys

29 Warren Street

[1] 1951 (1) SA 443 (A) at 449C–E.

[2] First National Bank of SA Ltd v Perry NO and Others 2001 (3) SA 960 (SCA) at paragraph [6].

[3] 2022 (4) SA 1 (CC) at paragraphs [54] – [56].

[4] 1980 (4) SA 525 (Z).

[5] McKelvey v Cowan N.O. 1980 (4) SA 525 Z D –E, Beadle, AJ said as follows: “It is the first principle in dealing with matters of exception that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleadings can disclose a cause of action.”

[5] McKelvey v Cowan N.O. 1980 (4) SA 525 Z D –E, Beadle, AJ said as follows:

“It is the first principle in dealing with matters of exception that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleadings can disclose a cause of action.”

[6] 1998 (1) SA 836 (W).

[7] 1993 (3) SA 264 (A).

[8] Unreported Case no. 13523/2020, delivered 23 March 2021 at paragraphs [12]-[14].

[9] 2001 (3) SA 960 (SCA) at paragraph [6].

[10] 2019 (2) SA 37 (CC).

[11] 2014 (1) SACR 217 (SCA) at paragraph [23].

[12] 2004 (6) SA 66 (T)