Vernon and Others NNO v Bradley and Others NNO

• Jurisdiction: South Africa
• Judge: Henning J
• Judgment Date: 12 November 1964
• Citation: 1965 (1) SA 422 (N)
• Hearing Date: 21 October 1964
• Court: Natal Provincial Division

Henning, J.:

This matter comes before the Court on exception. Two days before the hearing the respondents gave written notice that they would ask in limine for the exception, which was filed on 14th September, 1964, to be struck out on the ground that it was bad because it contained no prayer for relief. On the following day the respondents' attorneys were advised that the excipients conceded that the exception

Henning J

was defective in form and that an amendment would be applied for so as to add a suitable prayer. When the matter came before the Court, Mr. Feetham, for the respondents, applied for the exception to be struck out A and Mr. Mitchell, for the excipients, made an application for leave to amend the exception by adding a prayer in the following terms:

'Wherefore the defendants pray that the exception be allowed with costs and the action be dismissed with costs.'

The applications were heard together. In the result, I granted the amendment sought and ordered each of the parties to pay their own costs in respect of the application to amend, and the excipients to pay the respondents' costs involved in the point taken in limine. My reasons B follow.

In Pietermaritzburg City Council v Local Transportation Board, Pietermaritzburg, 1960 (1) SA 254 (N) at p. 256, the decision in an unreported case there cited, that an exception which did not contain a C prayer for relief was bad, was applied and by consent the exceptions were suitably amended. In Kistensamy v Bramdaw and Others, 1962 (3) SA 797 (D), exceptions which lacked a prayer were struck out and an application by the excipient to amend was refused. In that case I assumed that the defect could be cured by an appropriate amendment. Further particulars of the allegations in the declaration were furnished D after the exceptions had been filed, with the result that the basis for one of them fell away. Counsel also stated in that case that the merits of the exception would be argued on some future date, should the amendment sought by the excipient be granted. As appears from the judgment, the excipient was in terms of the Rules at liberty to file fresh exceptions if those before the Court were struck out. In those E circumstances I considered that the best course would be to strike out the exception.

Mr. Feetham's opposition to the application to amend was based solely on the fact that the excipient filed a plea simultaneously with the F exceptions. (Mr. Mitchell explained from the Bar that the plea was filed in error). Mr. Feetham made it clear that the respondents would not have offered opposition had no plea been filed, nor would they have opposed in spite of the filing of the plea had the exception contained a prayer for relief. He said that it was unnecessary to consider whether the exception was a nullity. He did not suggest that the Court had no G power to grant the amendment, but he submitted that it was no longer open to convert a bad exception into a good one, because the excipient had filed a plea. The opposition was thus based on a highly technical ground.

In the unreported case referred to above (Matzopoulos v Kraay and H Others, 3/4/57 N.P.D.) the full Bench, having apparently mero motu raised the point in a reserved judgment, held on the authority of Holtshousen v Holtshousen, 1928 G.W.L. 41, that an exception which does not conclude with a prayer for relief is bad, but nevertheless upheld one of the exceptions taken without an amendment providing for a prayer. In Pietermaritzburg City Council v Local Transportation Board, Pietermaritzburg, supra, the matter was not argued and an amendment was granted by consent. In Holtshousen's case the Court also granted an

Henning J

amendment. Accepting the position, as I am bound to do, that an exception which lacks a prayer is bad, I am in no doubt that the Court has the power to order an amendment to make good the defect, provided no prejudice or injustice is thereby caused to the respondent. The A requirement of a prayer is not laid down by the Rules, and can only be a matter of practice. I can...