Salzmann v Holmes

• Jurisdiction: South Africa
• Judge: Lord De Villiers CJ, Innes JA, CG Maasdorp AJA, J De Villiers AJA and Dove Wilson Acting AJA
• Judgment Date: 07 March 1914
• Hearing Date: 07 March 1914
• Court: Appellate Division

Lord De Villiers C.J.:

The plaintiff's declaration consists of several counts charging the defendant with having uttered defamatory statements. of these counts the seventh is now in question. It reads as follows. [The CHIEF JUSTICE quoted the 7th paragraph of the declaration as above.] It is impossible to imagine words of a more defamatory nature than these. The defence, set up is first a denial; then the plea proceeds thus. [The CHIEF JUSTICE set forth pars. 4 and 5 of the plea as above.]

To these paragraphs the plaintiff excepts, "inasmuch as the same are obscure, uncertain, vague and embarrassing, and bad in law, plaintiff prays that the said paragraphs may be expunged, with costs."

The Court below held that the plaintiff ought properly to have applied by way of motion under rule 35 to have the paragraphs struck out as containing argumentative or irrelevant or superfluous matter. It appears to me, however, that the objection could also be taken by way of exception. Counsel for the defendant has admitted that the paragraphs were intended as a special defence, and, if that is so, they do not comply with rule 29, which provides that the defendant must in his plea admit or deny or confess and avoid all the material facts alleged in the declaration or claim, and must clearly and concisely state all the material facts on which he relies. In these paragraphs the defendant does not admit, deny, or confess and avoid anything. The words "more or less" might mean anything. What the "unpleasant associations" referred to were should have been stated and the words "what had transpired" ought similarly to have been explained. It is most embarrassing to the plaintiff to have to meet allegations such as these. I come

Innes, J.A.

to the conclusion, therefore, that the exception is good, because the plea is not only embarrassing, but it does not admit or deny or confess and avoid the material facts alleged in the declaration, nor does it state the material facts on which the defendant relies. The appeal will therefore be dismissed, with costs.

Judgment

Innes, J.A.:

I am of the same opinion. The distinction between an exception and an application to strike out is clear. An exception goes to the root of the entire claim or defence, as the case may be. The excipient alleges that the pleading objected to, taken as it stands, is legally invalid for its purpose. Whereas individual sections, which do not comprise an entire claim or...