Trope and Others v South African Reserve Bank

• Jurisdiction: South Africa

Trope and Others v South African Reserve Bank
1993 (3) SA 264 (A)

1993 (3) SA p264

Citation	1993 (3) SA 264 (A)
Court	Appellate Division
Judge	Joubert ACJ, Kumleben JA, F H Grosskopf JA, Howie AJA and Kriegler AJA
Heard	March 9, 1993
Judgment	March 31, 1993

Flynote : Sleutelwoorde B

Appeal — In what cases — Against upholding of exception that plaintiff's particulars of claim vague and embarrassing — Leave to amend particulars C granted — Plaintiff contending that it could not amplify or amend claim and did not intend doing so — Plaintiff cannot in such a way change an order which did not have final effect into one which did — Decision not appealable.

Practice — Pleadings — Exception — Exception to particulars of claim on ground that they are vague and embarrassing — Exception succeeding — D Practice of Courts to order, where exception granted on ground that plaintiff's particulars of claim disclosed no cause of action, that pleading be set aside and plaintiff be given leave to file an amended pleading within a certain period of time, applying a fortiori where exception granted on ground that pleading was vague and embarrassing. E

Headnote : Kopnota

The practice of the Courts to order that, where an exception has successfully been taken to a plaintiff's initial pleading on the ground that it discloses no cause of action, the pleading be set aside and the plaintiff given leave to file an amended pleading within a certain period of time, applies a fortiori where an exception is granted on the ground that the pleading is vague and embarrassing, a ground which strikes at the formulation of the cause of action and not at its legal validity. F

The appellants were granted leave to appeal against the decision of a Provincial Division to uphold an exception taken by the respondent to the appellants' amended particulars of claim on the ground that they were vague and embarrassing. The issue on appeal was whether this order was indeed appealable. Although the Court a quo had granted the appellants leave to amend their particulars, they had indicated that they were not able and did not intend to do so, and would rely on their particulars as G pleaded. They furthermore submitted that the respondent's exception was in in substance an attack on the appellants' cause of action, and that by allowing the exception the Court a quo effectively erased material averments in support of the appellants' cause of action.

Held, that where an exception was properly taken on the ground that the particulars of claim were vague and embarrassing, the order was by its very nature not final in its effect: all the plaintiff has to do in such a H case is to set out his cause of action more clearly so as to remove the source of embarrassment.

Held, further, that a party could not, by refusing to amplify or amend his particulars, effectively change an order which was not final in its effect (and therefore not appealable) into one which was.

Held, further, that the appellants' contention that the exception was in substance one directed at the absence of a cause of action was, having I regard to the appellants' amended particulars of claim, the respondent's exception thereto and the judgment of the Court a quo, unfounded.

Held, further, that it had to be borne in mind that the Court a quo had not dismissed the actions, but had given the appellants leave to amend their particulars and that, by availing themselves of that opportunity, they would have been able to cure the deficiencies found therein by the Court a quo: that Court's finding had not been that the claim was unjustified in law, but that it had been pleaded in a manner lacking the J degree of clarity required by Rule 18(4) of the Uniform Rules of Court.

1993 (3) SA p265

A Held, accordingly, that the order of the Court a quo did not meet the requirements of appealability set out in Zweni v Minister of Law and Order 1993 (1) SA 523 (A) and that it followed that the appeal was not properly before the Court and had to be struck off the roll.

The order in the Transvaal Provincial Division in Trope v South African Reserve Bank and Another and Two Other Cases 1992 (3) SA 208 not appealable and appeal struck off the roll. B

Case Information

Appeal from a decision of the Transvaal Provincial Division reported at 1992 (3) SA 208 (T) (McCreath J). The facts appear from the judgment of F H Grosskopf JA.

C E Puckrin SC (with him M M Jansen) for the appellants referred to the C following authorities: Cape of Good Hope Bank v Fischer (1886) 4 SC 368; Patz v Greene & Co 1907 TS 427; Colonial Industries Ltd v Provincial Insurances Co Ltd 1920 CPD 627; Cape Town Municipality v Paine 1923 AD 207 at 216-7; Robinson v Randfontein Estates GM Co Ltd 1925 AD 173; Ketteringham v City of Cape Town 1934 AD 80 at 90; Perlman v Zoutendyk D 1934 CPD 151 at 158; Shill v Milner 1937 AD 101; Khan v Stewart 1942 CPD 386; Herschel v Mrupe 1954 (3) SA 464 (A) at 486-7, 489-90; Union Government v Ocean Accident & Guarantee Corporation Ltd 1956 (1) SA 577 (A) at 585; Prudential Assurance Co Ltd v Crombie 1957 (4) SA 699 (C); Purdon v Muller 1961 (2) SA 211 (A); Simmons NO v Gilbert Hamer & Co Ltd 1963 (1) SA 897 (N); Callinicos v Burman 1963 (1) SA 489 (A); Peri-Urban E Areas Health Board v Munarin 1965 (3) SA 367 (A) at 373E-G; Miller v Miller 1965 (4) SA 458 (C); Da Silva v Coutinho 1971 (3) SA 123 (A); Yannakou v Apollo Club 1974 (1) SA 614 (A) at 623H; Wessels v Pretorius NO 1974 (3) SA 299 (NC); Minister van Polisie v Ewels 1975 (3) SA 590 (A) at 597; Froom v Butcher [1975] 3 All ER 520 (CA); Brown v Hoffman 1977 (2) SA 556 (NC) F ; S v Temple 1978 (3) SA 185 (W); Administrateur, Natal v Trust Bank van Afrika Bpk 1979 (3) SA 824 (A) at 832-4; Sizani v Minister of Police 1980 (3) SA 1205 (SE); Franschhoekse Wynkelder (Ko-operatief) Bpk v SAR&H 1981 (3) SA 36 (C) at 40; Mabaso v Felix 1981 (3) SA 865 (A); Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 379-80; Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 497B-C, 498C-E; Shell & BP G South African Petroleum Refineries (Pty) Ltd and Others v Osborne Panama SA 1980 (3) SA 653 (D) at 659; Natal Fresh Produce Growers' Association and Others v Agroserve (Pty) Ltd and Others 1990 (4) SA 749 (N) at 757-8; Levitan v New Haven Holiday Enterprises CC 1991 (2) SA 297 (C); Arthur E Abrahams & Gross v Cohen and Others 1991 (2) SA 301 (C) at 309D-I; H 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; Harms Civil Procedure in the Supreme Court at 283 et seq; Boberg The Law of Delict vol 1 'Aquilian Liability' (1984, revised reprint 1989) at 24; Amler Precedents of Pleadings 2nd ed at 136; McKerron The Law of Delict I 7th ed (1971) at 276-81; Van der Walt Delict: Principles and Cases (1979) at para 25; Neethling, Potgieter and Visser Law of Delict (1990) at 59-60; Van Heerden and Neethling Onregmatige Mededinging (1983) at 154-68, 168-88; Neethling, Potgieter and Visser Deliktereg (1988) at 54-5; Prof E du Plessis 'The structure and operation of the Reserve Bank and its J relationship to the

1993 (3) SA p266

A Government' 1980 MB at 86 et seq; Dr M H de Kock South African Reserve Bank - Central Banking 4th ed (1974) at 14; Neethling and Potgieter 'Deliktuele Aanspreeklikheid weens 'n Late ens' (1990) 4 TSAR at 703 et seq.

B J W Louw SC (with him P Ginsburg SC and J H Dreyer) for the respondent referred to the following authorities: South Cape Corporation (Pty) Ltd v Engineering Management Services (Pty) Ltd 1977 (3) SA 534 (A); Van Streepen & Germs (Pty) Ltd v Transvaal Provincial Administration 1987 (4) SA 569 (A); Government Mining Engineer and Others v National Union of Mineworkers and Others 1990 (4) SA 692 (W); South African Druggists Ltd v Beecham Group plc 1987 (4) SA 876 (T); Dickinson and Another v Fishers C Executors 1914 AD 424; Publications Control Board v Central News Agency Ltd 1977 (1) SA 717 (A); Heyman v Yorkshire Insurance Co Ltd 1964 (1) SA 487 (A); Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd 1948 (1) SA 839 (A); Tropical (Commercial and Industrial) Ltd v Plywood Products Ltd 1956 (1) SA 339 (A); Ex parte Minister of Justice: In re R v D Bolon 1941 AD 345; Fourie v Minister van Lande en 'n Ander 1970 (4) SA 165 (O); Van Heerden v Cronwright and Others 1985 (2) SA 342 (T); Elida Gibbs (Pty) Ltd v Colgate Palmolive (Pty) Ltd 1988 (2) SA 360 (T); Du Randt v Du Randt 1992 (3) SA 281 (E); South African Motor Industry Employers' Association v South African Bank of Athens Ltd 1980 (3) SA 91 (A); Charugo Development Co (Pty) Ltd v Maree NO 1973 (3) SA 759 (A); SA Eagle E Versekeringsmaatskappy Bpk v Harford 1992 (2) SA 786 (A); Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A); Quinlan v MacGregor 1960 (4) SA 383 (D); Lethern v Tredoux 1911 NPD 346; Durban Picture Frame Co (Pty) Ltd v Jeena and Another 1976 (1) SA 329 (D); Lockhat and Others v Minister of the Interior 1960 (3) SA 765 (D) F ; Parow Lands (Pty) Ltd v Schneider 1952 (1) SA 150 (SWA); Yannakou v Apollo Club 1974 (1) SA 614 (A); Arthur E Abrahams & Gross v Cohen and Others 1991 (2) SA 301 (C); Minories Finance Ltd v Arthur Young (a firm) (Bank of England, third party) [1989] 2 All ER 105; Jodaiken v Jodaiken 1978 (1) SA 784 (W) at 787H; Fisheries Development Corporation of SA Ltd v Jorgensen and Another; Fisheries Development Corporation of SA Ltd v AWJ G Investments (Pty) Ltd and Others 1980 (4) SA 156 (W); Davis v Caledon Municipality 1960 (4) SA 885 (C); Gorfinkel v Gross, Hendler and Frank 1987 (3) SA 766 (C).

Cur adv vult. H

Postea (March 31).

Judgment

F H Grosskopf, JA.:

This is an appeal against the...