Standard Bank of South Africa v Qin Jiang and Another (11829/2020) [2021] ZAGPPHC 581 (13 September 2021)

SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

N REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NO: 11829/2020

REPORTABLE: NO

OF INTEREST TO OTHER JUDGES: NO

REVISED. NO

DATE: 13/09/2021

In the matter between:

THE STANDARD BANK OF SOUTH AFRICA

Plaintiff

(Registration NO: [....])

And

QIN JIANG

First Excipient /Defendant

LUOYA HUANG

Second Excipient /Defendant

JUDGMENT

MAHLANGU AJ

INTRODUCTION

[1] This is an exception in terms of the Rule 23(1) of the Uniform Rules of Court, taken against the Plaintiff, Standard Bank of South Africa Limited (“the Bank”) by the Defendants, Quin Jiang and Luoya Huang, on the basis that the Plaintiffs Particulars of Claim are vague and embarrassing. The parties will be referred to as they appear in the main action.

FACTUAL BACKGROUND

[2] On 18 March 2004, the Plaintiff and the Defendant concluded a written home loan agreement in terms of which the Plaintiff advanced a loan to the Defendants in the amount of R960 000.00. The loan was repayable over 360 month’s instalments of R8092, 30.

[3] The loan was secured by a continuing mortgage bond over the property described in the particulars of claim. The Defendants chose a postal address specified in the loan agreement as their domicilium address.

[4] The Plaintiff alleges that the Defendant breached the home loan agreement by failing to pay the monthly instalments as agreed. During 2020, the Plaintiff notified the defendants of the breach in terms of 129 of the National Credit Act, by registered mail, at the chose domicilium address. It received no response from the Defendants.

[5] On the 18th February 2020, the Plaintiff issued summons against the Defendants, claiming payment of the full outstanding balance of the loan. It served the summons on the Defendants on 4 March 2020 and on the 18th March 2020, the Defendants entered an appearance to defend. They subsequently served a notice in terms of Rule 23 (1) on the Plaintiff, to remove a cause of complaint. They Plaintiff did not comply with the Defendants’ request.

[6] On the 29 May 2020 the Defendants served a notice of exception on the Plaintiff. They set

out two grounds of exception, detailed below.

THE ISSUES

[7] These are the issues to be determined:

(a) Whether the Plaintiff’s particulars of claim are excipiable; and

(b) Whether the Plaintiff’s particulars of claim are vague and embarrassing.

APPLICABLE LEGAL PRINCIPLES

[8] Rule 23 (1) provides that:

‘Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case maybe, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of paragraph (f) of sub-rule (5) of Rule 6: Provided that where a party intends to take an exception that a pleading is vague and embarrassing, he shall within the period allowed as aforesaid by notice afford his opponent an opportunity of removing the cause of complaint within 15 days: Provided further that the party excepting shall within 10 days from the date on which a reply to such notice is received or from the date on which such reply is due, deliver his exception.’

[9] According to Rule 23 the above can be explained as follows that:

(a) The ultimate test as to whether or not the exception should be upheld is whether the excipient is prejudiced to the extent that he or she is unable to plead or to the pleadings to which he or she has excepted to.

(b) The onus is on the excipient to show that the particulars of claim are either vague and embarrassing or lack the necessary averments to sustain a cause of action.

[10] Rule 18 provides that:

“(4) Every pleading shall contain clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading as the case may be, with sufficient particularity to enable the opposite party to reply thereto’’.

FIRST GROUNDS OF EXCEPTION

[11] The Defendants` complaint is that they never received the section 129 Default notices which the plaintiff alleges it cause to be delivered to the Defendants.

[12] The averments in the Particulars of Claim, to which this ground of exception relates, complies in material respects with Rule 18 (4). Therefore, the ground of exception lacks merit. It stands to be rejected.

THE SECOND GOUND OF EXCEPTION

[13] The defendants are aggrieved that the plaintiff alleges that they fell into arrears with the mortgage loan instalments on 8 June 2007, but fail to state what the defendants did to remedy the arrears. Yet, the plaintiff only dispatched a default notice to the defendants on 21 January 2020 without explaining why it took the plaintiff 13 years to notify the defendant of the default.

[14] This complaint lacks merit. The Plaintiff has fully pleaded the defendants’ obligations to pay monthly

instalments to it, its rights in the event of a breach by the defendants, as well as the alleged breach of the loan agreement with

sufficient particularity to enable the defendants to plead thereto.

[15] Therefore, this ground of exception stands to be dismissed.

CONCLUSION

[16] In light of the foregoing, it is found that the defendants will not be prejudice in the conduct of their defence if the exception is not granted. Therefore, the defendants’ exception stands to be dismissed with costs.

Accordingly, IT IS ORDERED THAT:

1. The exception is dismissed with costs;

2. The defendants are directed to file their plea to the plaintiff’s particulars of claim within 20 days of the date of delivery of this judgment.

K.S Mahlangu

Acting Judge of the High

Court of South Africa

Gauteng Division, Pretoria

For the Plaintiff:

Counsel: Adv M Rakgoale

Instructed: Vezi & De Beer Inc.

For the Respondent:

In person: Mr. Qin Jiang.

Date of hearing: 04 May 2021

Date of judgement: 13 September 2021