Epstein v Christodoulou and Another

• Jurisdiction: South Africa
• Judge: Van Reenen J
• Judgment Date: 03 November 1981
• Hearing Date: 02 November 1981
• Court: Witwatersrand Local Division

Van Reenen J:

F While Mr Browde for the plaintiff was opening his case yesterday his interpretation of the pleadings was challenged by Mr Cohen and Mr Zulman, and it was requested that I should at this early stage rule as to the effect of these pleadings, so that, if necessary, appropriate steps to set the matter right could be taken at this stage.

G At the outset I wish to set out my views on the general issue of the adequacy or not of pleadings. It is trite to say that the purpose of pleadings is to set out and define clearly the issues between the parties so that each one, as well as the Court, may know what case is to be made out and what case has to be met. In the past it was customary to scrutinise each individual pleading closely and our Courts were H continually called upon to rule upon technical objections. Meticulous observance of the Rules applying to each type of pleading was sought by litigants and enforced by our Courts. But for some decades now we have been moving away from this formalism and these technicalities. The pressure on our time and resources has become too great to squander energy in this way.

Litigants were allowed greater freedom in formulating their pleadings and the tendency has been to relax the Rules whenever it seemed

Van Reenen J

expedient to do so. But this tendency has led to another undesirable consequence, namely that the real issues to be decided were no longer A clearly formulated at the outset, but were left to emerge and become clarified as the case proceeded. Although this has given litigants greater freedom, it, in its turn, has now tended to overstrain our time and our resources. We must somehow resolve this dilemma with which we are faced.

On the one hand we must, for economy's sake, have clarity of pleadings B with issues clearly defined, while on the other hand we must avoid technicalities and formalism. This solution, in my view, is to be found by requiring not meticulous scrutiny of each individual pleading, but that, in the end, when the pleadings have been closed, all issues calling for resolution are clearly set out. The pleadings are to be C considered as a whole and, if by doing so it is clear what has to be decided, all is well, even though the various stages of the pleadings may not be as clear, or as accurate, or as elegant as they ought to have been.

It is in this way that I am about to consider the issues before me. Here we do have a very full set of...