Ngwenya v Malete

• Jurisdiction: South Africa
• Judge: B Mashile J
• Judgment Date: 22 April 2014
• Docket Number: 3326/2013
• Court: South Gauteng High Court, Johannesburg
• Hearing Date: 03 March 2014
• Citation: 2014 JDR 0898 (GSJ)

Mashile, J:

[1]

This is an application brought in terms of Uniform Rule 28. The Applicant seeks leave to amend his particulars of claim to remove a source of complaint that has been pointed out by the Respondent.

2014 JDR 0898 p2

Mashile J

[2]

The Respondent objects thereto on the ground that the proposed amendment will not rid the particulars of claim of their vague and embarrassing nature.

[3]

The background facts are that the Applicant issued summons against the Respondent wherein he claims payment of damages occasioned by the Respondent's negligent failure to promptly serve and file the Applicant's claim for damages arising out of a motor vehicle collision against the Road Accident Fund.

[4]

On 29 October 2013 following the service of the summons upon the Respondent, the Respondent served and filed a notice of irregular step in terms of Rule 30(2)(b) and Rule 23(1) in which he singled out paragraphs 6.1 and 10 as being the source of complaint.

[5]

The complaint was that the Applicant avers in both paragraphs that he and the Respondent entered into a verbal alternatively, a written mandate agreement in terms of which the Respondent agreed to institute an action for damages against the Road Accident Fund on his behalf.

[6]

The Respondent stated in its notice that claiming that the agreement was in writing alternatively, verbal rendered the particulars of claim vague and embarrassing in terms of Uniform Rule 18(6) and Rule 18(12).

2014 JDR 0898 p3

Mashile J

[7]

The Respondent vied that the Applicant's averments as set out in his particulars of claim were imprecise and uncertain on what the terms of the verbal or written agreements were. Furthermore, Applicant had omitted to attach a copy of the written contract.

[8]

In view of the above, the Respondent was prejudiced by the uncertainty whether there existed a written agreement or not. What's more, argued the Respondent, he was embarrassed on how to plead on account of the ambiguity.

[9]

The Applicant acknowledged that his particulars of claim were indeed vague and embarrassing in that respect and accordingly on 30 October 2013 delivered a notice of intention to amend his particulars of claim by deleting the words "alternatively a written agreement".

[10]

In response to the Applicant's Rule 28 Notice, the Respondent served and filed a Notice of Objection on 12 November 2013 to the Applicant's anticipated amendments contained in his Notice in terms of Rule 28.

[11]

The Respondent finds the particulars of claim objectionable in that it does not comply with Uniform Rules 18(4) and (12) and 23. The particulars fall short of compliance with Rule 18(4) as it does not contain a clear and concise statement of the material facts and it is vague and embarrassing as envisaged in Uniform Rule 23.

2014 JDR 0898 p4

Mashile J

[12]

In his paragraph 2.2 of his Notice of Objection the Respondent states that the Applicant alleges in paragraph 6.1 of his particulars of claim that:

"... the Plaintiff...and the Defendant...entered into a verbal agreement of mandate for the institution of an action for damages against the Road Accident Fund."

"2.3

In paragraph 6.2 where the Plaintiff alleges that "it was explicitly alternatively tacitly further alternatively impliedly agreed between the Plaintiff and the Defendant representative...

2.4

In his subparagraphs 6.2.1 to 6.2.6, the Plaintiff suggests that there was a contingency fee agreement between the Plaintiff and the Defendant. However, no such allegation is made.

2.5

Therefore the Particulars of Claim lack the necessary averment to sustain a cause of claim.

2.6

Furthermore, it is unclear what the material terms of the verbal agreement were.

3.

Accordingly the Defendant is prejudiced by the uncertainty and furthermore embarrassed on how to formulate his plea as a result thereto.

2014 JDR 0898 p5

Mashile J

Plaintiff alleges that the only terms of the verbal agreement were only those explicit alternatively tacit or further alternatively implied."

[13]

The Applicant has pointed out that none of the complaints set out in the Respondent's Notice of objection were in the original notice by which he required the Applicant to remove the source of the complaints that he had listed.

[14]

The Applicant detests the piecemeal objections and finds that they are devoid of any merit whatsoever. Instead of attending to these further complaints raised in the Respondent's objection, he launched this application and implores this court to make a determination on whether the objection raised by the Respondent is valid or not.

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