Trope and Others v South African Reserve Bank

• Jurisdiction: South Africa
• Judge: Joubert ACJ, Kumleben JA, F H Grosskopf JA, Howie AJA and Kriegler AJA
• Judgment Date: 31 March 1993
• Citation: 1993 (3) SA 264 (A)
• Hearing Date: 09 March 1993
• Court: Appellate Division

F H Grosskopf, JA.:

This is an appeal against the judgment of McCreath J, sitting in the Transvaal Provincial Division (reported sub nom Trope v South African Reserve Bank and Another and Two Other Cases 1992 (3) SA 208 (T) I ). The Court a quo upheld an exception taken by the respondent to the appellants' amended particulars of claim on the ground that they were vague and embarrassing. The present appeals relate to three of 38 virtually identical actions, brought by various plaintiffs against the respondent as first defendant and Volkskas Bank Ltd ('Volkskas') as second defendant, claiming damages from them jointly and severally. These are J delictual

F H Grosskopf JA

A actions for the recovery of pure economic or financial loss, based on the alleged wrongful and negligent conduct of the respondent and Volkskas. (Compare Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 829H-830B; Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 498C-E.) Before the merits of the B appeal can be considered the appellants must first show that the order of the Court a quo is appealable. The Court a quo granted the appellants leave to appeal to this Court on a number of grounds set forth in their notice of application for leave to appeal. Thereafter this Court granted the appellants further leave to appeal on certain additional grounds set out in the said notice, but subject to the respondent's right to argue C that the order of the Court a quo is not appealable.

Leave to appeal is of course only one of the jurisdictional requirements for a civil appeal from a Provincial or Local Division sitting as a Court of first instance. The other is that the decision appealed against must be a 'judgment or order' within the meaning of those words in the context of D s 20(1) of the Supreme Court Act 59 of 1959 (Zweni v Minister of Law and Order 1993 (1) SA 523 (A) at 531B-D). The question whether a decision is an appealable 'judgment or order' is not always easy to determine, as appears from a number of authorities referred to in the Zweni judgment. It will serve no purpose to re-examine those authorities. It has been held in E Zweni's case supra at 532J-533B:

'A "judgment or order" is a decision which, as a general principle, has three attributes, first, the decision must be final in effect and not susceptible of alteration by the Court of first instance; second, it must be definitive of the rights of the parties; and, third, it must have the effect of disposing of at least a substantial portion of the relief claimed in the main proceedings (Van Streepen & Germs (Pty) Ltd case supra F [1987 (4) SA 569 (A)] at 586I-587B; Marsay v Dilley 1992 (3) SA 944 (A) at 962C-F). The second is the same as the oft-stated requirement that a decision, in order to qualify as a judgment or order, must grant definite and distinct relief (Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue and Another 1992 (4) SA 202 (A) at 214D-G).'

G The decision of the Court a quo and its effect must therefore be considered in order to determine whether it qualifies as an appealable 'judgment or order'.

Before I deal with the facts of the present case I should first make a few general observations relating to exceptions, and more particularly exceptions on the ground that a pleading is vague and embarrassing. H

Rule 18(4) of the Uniform Rules of Court provides as follows:

'Every pleading shall contain a 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.'

I (And see Rule 18(12).) Previously 'minor blemishes in, and unradical embarrassments caused by, a pleading' could be cured by further particulars (Purdon v Muller 1961 (2) SA 211 (A) at 215F), but requests for further particulars to pleadings are no longer competent. Exceptions that pleadings are vague and embarrassing have been allowed in the past J even though the embarrassment might have been removed by the furnishing of

F H Grosskopf JA

A particulars in response to a request. (See Osman v Jhavary and Others 1939 AD 351 at 365-6, a case which dealt with the practice at that time pertaining in Natal.) The position is now regulated by Rule 23(1) of the Uniform Rules of Court, which provides that, where a party intends taking an exception that a pleading is vague and embarrassing, he shall first B afford his opponent an opportunity of removing the cause of complaint. The embarrassment and consequent prejudice complained of can indeed often be removed by an appropriate amendment providing further and better particularity. No such preliminary step is required, on the other hand, where the exception is taken on the ground that the pleading lacks averments necessary to sustain an action or defence. C

The respondent in the present matter duly gave the appellants notice in terms of Rule 23(1) that unless they removed the cause of complaint set out in the notice it intended taking an exception to their particulars of claim on the ground that they were vague and embarrassing. The appellants D thereupon amended their particulars of claim, but the respondent was still not satisfied and gave them notice once again that it intended taking an exception that their amended particulars of claim were vague and embarrassing. Their response to his request was that they did not intend amending their particulars of claim, which they averred were in order. The E respondent then took an exception in terms of Rule 23(1) on the ground that the appellants' amended particulars of claim were vague and embarrassing. There was never any suggestion that the respondent also objected to the particulars of claim on the ground that they did not disclose a cause of action. The exception was nothing more than it purported to be, ie an exception that the amended particulars of claim F were vague and embarrassing. Both in substance and in form the notice of exception unequivocally assails the manner in which the particulars of claim were formulated and not the validity of the causes of action sought to be alleged therein. That is how the parties treated the exception throughout and how the learned Judge a quo viewed it and dealt with it in G his judgment. The following statement appears in the judgment of the Court a quo supra at 217H-I, immediately preceding the order:

'Finally, I should state that I have not considered it necessary to deal with certain aspects of the law raised in the very comprehensive arguments advanced on behalf of the plaintiffs. Those aspects are, in my judgment, H apposite in the case of an exception on the grounds that no cause of action is disclosed by the pleadings, but are not appropriate for purposes of the present exception.'

It appears, therefore, that the learned Judge a quo was under no misapprehension as to the true nature of the exception he was dealing with in his case.

I However, Mr Puckrin, who appeared for the appellants, maintaining that substance and not form should prevail, submitted that the true nature of the exception was that the particulars of claim disclosed no cause of action, and not that they were merely vague and embarrassing. A similar argument had been advanced, for the first time, when counsel for the appellants sought leave to appeal in the Court a quo, and it appears from J the following extract from the judgment granting leave that counsel

F H Grosskopf JA

A managed to persuade the learned Judge a quo...