Levitan v Newhaven Holiday Enterprises CC

• Jurisdiction: South Africa
• Court: Cape Provincial Division
• Judge: Conradie J and Van Deventer AJ
• Judgment Date: 10 January 1991
• Citation: 1991 (2) SA 297 (C)
• Hearing Date: 02 November 1990

Conradie J:

The defendant, to whom I shall refer as the excipient, has excepted to the particulars of claim of the plaintiff, whom I shall call F the respondent, as being vague and embarrassing. In accordance with long-standing practice it has applied in the alternative to strike out certain paragraphs of the respondent's particulars of claim. In terms of Rule 23(1) of the Uniform Rules of Court notice was given to the respondent to remove the cause of complaint. The respondent, however, G declined to do so.

Conradie J

A It has been stated, clearly and often, that an exception that a pleading is vague or embarrassing ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged.

In this Division the practice was stated by Benjamin J in Colonial B Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627 at 630 when he said that

'... save in the instance where an exception is taken for the purpose of raising a substantive question of law which may have the effect of settling the dispute between the parties, an excipient should make out a very clear, strong case before he should be allowed to succeed'. C

This approach was approved in Kahn v Stuart and Others 1942 CPD 386 at 391 which was in turn followed in Lobo Properties (Pty) Ltd v Express Lift Co (SA) (Pty) Ltd 1961 (1) SA 704 (C) at 711F - H.

An excipient must satisfy the Court that he will be substantially embarrassed, ie prejudiced, if the offending pleading is allowed to D stand. (See Herbstein and Van Winsen Civil Practice of the Superior Courts in South Africa 3rd ed at 339; Joubert (ed) Law of South Africa vol 3 para 199.) Mr Olivier, for the excipient, cheerfully took this task upon himself.

Mr Lory for the respondent - who candidly expressed his relief that he had not been the pleader - was driven to concede that the E particulars of claim were slovenly, but argued that the excipient was not embarrassed or at any rate not seriously embarrassed by their slovenliness. The respondent, he argued, could nevertheless plead to the allegations since the excipient's version of events did not depend upon the respondent's version.

F I think Mr Lory's submission is correct as far as it goes. The excipient is not prevented from putting up his own version, which is quite a simple one, as we know from the opposing affidavit filed in response to an application for summary judgment. It is, firstly, that a contract was never concluded between it and the respondent and, secondly, that it did not...