1

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

RULING

Case no: I 2359/2014

In the matter between:

OLD MUTUAL LIFE ASSURANCE COMPANY (NAMIBIA) PLAINTIFF

and

RISTO HASHEELA 1STDEFENDANT NORTHERN CHAMBERS INSURANCE BROKERS CC 2ND DEFENDANT

Neutral citation: Old Mutual Life Assurance Company of Namibia Ltd v Hasheela (I

2359-2014) [2015] NAHCMD 152 (26 June 2015)

CORAM: MASUKU, AJ

Heard on: 5 June 2015

Delivered on: 26 June 2015

NOT REPORTABLE

2

Flynote: PRACTICE – Rules of the High Court – application of rule 32 (9) and (10)

to interlocutory applications. Considerations of the applicability of the doctrine of

substantial compliance with the provisions of rule 32 (9) and (10). Amendment of

pleadings and propriety of objecting to a proposed pleading on the basis that is

excipiable. – Requirement for pleadings to contain a clear and concise statement of

material facts on which claim is based. CONTRACT – the allegations to be made in

pleadings relating to special and general damages in contractual damages claims.

DAMAGES – the need to set out claims for damages in pleadings in a manner that

enables the defendant to reasonably assess the quantum thereof.

Summary: The defendant launched a counterclaim against the plaintiff for payment of

damages arising out of an alleged breach of a contract. At the hearing of the exception,

the defendant applied for the matter to be struck out for failure to comply with the

provisions of rule 32 (9) and (10). Held that in terms of the evidence, the parties did

attempt to settle the matter amicably out of court but merely neglected to file evidence

of such attempts with the registrar. The court held that substantial compliance had been

proved and the application to strike the matter off the roll was refused.

EXCEPTION – Held that an excipient may object to an amendment on the basis that the

proposed amendment is excepiable. Held further that the pleadings in respect of the

plaintiff’s counterclaim did not set out material facts to enable the plaintiff to know the

case it has to meet. Held further that the defendant’s claim for damages was not drafted

in a manner that will enable the plaintiff to reasonably assess the nature and the

quantum thereof. Exception upheld with costs and the defendant granted leave to

amend the counterclaim.

ORDER

(1) The plaintiff’s exception has complied with the provisions of rule 32 (9) and

(10) of this court’s rules.

3

(2) The plaintiff’s exception to the proposed amendment of the defendant’s

counterclaim is hereby upheld with costs of one instructing and one instructed

counsel.

(3) The defendant is afforded leave to amend its counterclaim, if so advised

within fifteen (15) days of the date of this order.

(4) The matter is postponed for case management to 5 August 2015 at 15h15 for

status hearing.

RULING

MASUKU, AJ

[1] Two principal questions fall for determination in this ruling. The first is whether or

not the applicant has complied with the provisions of rule 32 (9) and (10) of the rules of

this court and consequently whether or not this matter should be struck off the roll

therefor. The second question relates to whether an exception taken by the plaintiff to

the defendant’s counterclaim ought to be upheld.

[2] If I find that the plaintiff has not complied with the provisions of rule 32 aforesaid,

there may be no need for me to proceed to consider the issue of the exception and this

will primarily be so for the reason that the plaintiff will have failed to comply with

provisions that from all indications, appear to be peremptory in their terms. I may then

be inclined to strike the matter off from the roll for the non-compliance therewith.

[3] It is important at this stage to briefly outline the circumstances in which the issues

crying out for determination arise. To this extent, a history of the litigation between the

parties may need to be indulged in to a necessary degree.

4

[4] The facts, which are common cause and on which the present ruling is

predicated acuminate to this: By combined summons (with the particulars of claim

eventually amended) dated 3 October 2014, the plaintiff sued the defendants for

payment of an amount of N$946 313, 95; an order declaring an agreement entered into

by the parties to be validly cancelled; interest on the aforesaid amount and costs. In the

main, the plaintiff averred that in 2009, it had entered into a written brokerage

agreement with the plaintiff and in which the 2nd defendant represented the 1st

defendant. The said agreement is annexed to the particulars of claim and bears no

relevance at the present moment.

[5] It is averred further that in terms of the said agreement, the defendant was to

canvass for life insurance, retirement annuities, pure endowments, health and disability

insurance and kindred investments and business on the plaintiff’s behalf. The

defendants would collect money from clients and transmit same to the plaintiff within 48

hours of receipt. The 2nd defendant was entitled to commission in respect of premiums

of all new applications for assurance introduced and issued as policies by the plaintiff. It

was alleged further that the defendant would become entitled to commission in respect

of premiums or instalments if paid on due date.

[6] It is the plaintiff’s averral that in breach of the agreement, the defendants failed to

comply with its obligations in terms of the agreement received premiums or instalments

on behalf of the plaintiff and in respect of which it received commission in advance but

failed to repay the claw back amount on policies which were either cancelled or

terminated prematurely for the period March 2012 to November 2013. As a result, the

defendant’s commission account had accumulated a debit balance in the amount

claimed, which despite demand, the defendants had failed and/or refused to pay, hence

the issuance of the summons.

[7] In its plea, the defendant denied liability for the amount claimed. Whilst admitting

the existence and terms of the agreement relied upon by the plaintiff and its execution

by both parties’ representatives, the defendant raised different interpretations to some

5

of the clauses in the agreement. The defendant alleged that it was the plaintiff which

repudiated the agreement by withdrawing codes which were allocated to the

defendants. It claimed that the plaintiff withheld some commission which are due to it in

terms of the agreement. It further averred that the amount allegedly owing to the plaintiff

in the summons was born out of the plaintiff’s unlawful termination of the agreement.

[8] The defendants did not stop there. They also filed a counterclaim which was also

predicated on the agreement referred to above. The defendants claim that in breach of

the agreement, the plaintiff cancelled the second defendant’s codes and other codes

allocated to the 2nd defendant’s employees. This cancellation, it is further alleged,

prevented the defendants from accessing and controlling payments by its clients in

respect of policies it had sourced for the plaintiff. This, further averrals allege, some

clients decided to cancel policies with the result that some of the second defendant’s

commission account being debited in terms of the agreement. It is the defendant’s case

that the 2nd defendant lost out on commission to which it was entitled in respect of new

business it generated in terms of the agreement. The 2nd defendant thus claimed

damages in the amount of N$5 000 000.

[9] It is this counterclaim that has attracted an exception from the plaintiff. I do not

find it necessary, at this stage, to traverse the grounds of the exception. This is because

it is desirable at this juncture, to first deal with the application of the provisions of rule 32

and to decide whether these are applicable; and if so, whether the parties complied with

same and the implications of non-compliance if proved, on the further progress of the

exception.

Rule 32 (9) and (10)

[10] Rule 32 is headed ‘Interlocutory matters and applications for directions’. Rules 32

(9) and (10), have the following rendering:

6

‘(9) In relation to any proceeding referred to in this rule, a party wishing to bring such

proceeding must, before launching it, seek an amicable resolution thereof with the other

party or parties and only after the parties have failed to resolve their dispute may such

proceeding be delivered for adjudication by the court.

(10) The party bringing any proceeding contemplated in this rule must before, instituting

the proceeding, file with the registrar details of the steps taken to have the matter

amicably resolved as contemplated in subrule (9) without disclosing privileged

information.’

[11] These two subrules have been the subject of some decisions in this court. The

most celebrated of these is the judgment of Parker A.J. in Mukata v Appollos1 where the

learned Acting Judge held that the above provisions applied to interlocutory applications

and applications for directives. The learned Judge also held that the said provisions

were peremptory in nature and that failure to comply with them was fatal and may result

in the court striking the matter off the roll. Indeed, in the said matter, which was a

summary judgment application, the court held that summary judgment was an

interlocutory proceeding and that the said provisions applied. The court also found that

the plaintiff in that matter had not complied with the provisions of both subrules and it

accordingly struck the matter off the roll, indicating that compliance with these subrules

was consonant with the overriding objectives of judicial case management.

[12] There is no gainsaying that an exception is an interlocutory proceeding and Mr.

Jones for the plaintiff accepted that position without demur. He argued that his client

had substantially complied with the provisions of the said subrules and he invited the

court to pay close attention to the events preceding the delivery of the proceeding for

hearing. He contended that viewed in sum and in proper perspective, there could be no

doubt that the plaintiff had complied with the said provisions. Mr. Amoomo strenuously

argued that there was value in strictly applying the prescriptions of the said subrules

strictly, including the need to limit interlocutory proceedings to what is strictly necessary

in order to achieve a fair and timely disposal of matters and causes. He argued that this

1 Case No. I 3396/2014.

7

court has no power to condone non-compliance with the aforesaid provisions as they

are peremptory in nature2.

[13] At the invitation of Mr. Jones for the plaintiff, I will indulge in an examination of

the events leading to and including the filing of the exception in order to determine

whether he is indeed correct that the plaintiff has substantially complied with the above

provisions as he claims. The first incident cited by Mr. Jones is the notice of exception

to the defendant’s counterclaim dated 17 September 2014. As dictated by practice and

the rules, the defendant was, in that notice, afforded a period of 10 days within which to

remove the cause of the complaint, failing which the plaintiff would then set the matter

down for the hearing of the exception. On 3 October 2014, the defendant filed its notice

to amend its aforesaid pleading. The plaintiff maintained that the proposed amendments

did not cure the defect alleged in the exception.

[14] In view of the discordant views about whether the said propose amendment

served to cure the defects in the pleadings alleged by the plaintiff, the court, per Smuts

J (as he then was), on 8 October 2014 ordered the plaintiff to file its objection by 15

October 2015’ the application to object to be filed by 27 October 2015; opposition, if

any, to be filed by 3 November 2014 and any replies to be filed by 7 November 2014.

The matter was then set down by the learned Judge for hearing of the interlocutory

application on 19 November 2014.

[15] On 10 October 2014, the plaintiff complied and filed its notice of objection as

ordered by the court. The defendants, however, failed to comply with the order in that

they failed to file their application to amend as ordered by the court. They instead filed a

notice to oppose the plaintiff notice of objection. On 11 November 2014, the 2 nd

defendant launched an application for leave to amend its plea and counterclaim dated

20 August 2014 in consonance with the notice of intention to amend dated 3 October

2014 aforesaid. The court, on 19 November 2014, ordered the plaintiff to file its

answering affidavit to the defendant’s application dated 11 November 2014 and the

2 Andreas Lungameni and Others v Angelina Hagen And Another Case No. LC 99/2012.

8

matter was thus postponed to 15 February 2015 for argument.3 On the said date, the

application for leave to amend was postponed to 10 April 2015 before me for argument.4

[16] On the appointed date i.e. 10 April, the 2nd defendant’s application for leave to

amend was dismissed with costs and the hearing of the application was postponed to

12 May 2015 for argument.5 On 19 May 2015, the plaintiff’s attorneys addressed a letter

to the defendants’ attorneys. The contents of the said letter are important and bear

repeating therefor. The letter, written on a ‘without prejudice’ basis reads as follows in

part:

‘In an attempt to amicably resolve the issues raised in the Plaintiff’s exception against

the 2nd Defendant’s counterclaim, the Plaintiff herewith affords the 2nd Defendant an

opportunity to remove the cause of complaint , by filing a notice of amendment on or

before Wednesday, 20 May 2015 at 15:00. Should the Plaintiff be of the view that the

amendment(s) as set out in the notice of intention to amend does not remove the cause

of the complaint, the Plaintiff will inform the 2nd Defendant on Wednesday, 20 May 2015

at 17:00 and the 2nd Defendant will be required to file its heads of argument on the 22nd

of May 2015 as per the court order dated 12 May 2015.’

[17] In response to this letter, the defendants’ counsel wrote a letter to the plaintiff’s

letter dated 21 May 2015. The said letter had attached to it a proposed notice to amend

the counterclaim and it required the plaintiff to indicate its attitude to the proposed

amendment. By letter dated 22 May 2015, the plaintiff’s attorneys indicated that in their

view, the proposed amendment still does not remove the cause of complaint. The

plaintiff’s attorneys accordingly stated that in the circumstances, the matter will proceed

on 5 June 2015 for argument in respect of the exception. It was on the said date that the

issue of compliance with rule 32 was raised.

[18] The question to be answered is whether the chronicle of events above, which I

must say is supported by relevant documents, cumulatively amount to compliance with

3 See court order dated 19 November 2014.4 See court order dated 19 February 2015.5 See court order dated 10 April 2015.

9

the provisions of rule 32 (9) and (10). It is important to note that the said provisions

require two distinct steps. First, the party intending to bring the proceeding in question,

must seek an amicable resolution of the dispute before delivering the pleading in

question for adjudication by the court. This is to be found in subrule (9). The second

step, contained in subrule (10), is the said party filing with the registrar details of steps

taken to have the matter resolved amicably. There is no doubt, in my view that the steps

outlined above do show ineluctably that the plaintiff attempted to have the matter of the

exception amicably resolved by allowing the defendants another bite to the cherry as it

were, to file a fresh notice to amend. The plaintiff pointed out that should the defendants

fail to cure the excepiability of the counterclaim, it would then proceed to set the

exception for hearing and which it did do.

[19] It would appear to me, having said the foregoing, that there is no evidence that

the plaintiff thereafter filed with the registrar details of the steps taken by the parties to

have the matter resolved. Should the matter be struck off from the roll for failure to

comply with the latter requirement which I have found was not complied with? In an

ordinary case, I would say without fear of contradiction that the non-compliance

established above has fatal consequences and should result in the application being

struck off from the roll. In the present circumstances, however, when viewing the matter

in its entirety, it is abundantly clear that the plaintiff did take steps to have the matter

amicably resolved although same did not bear fruit. Secondly, letters in support of the

attempt to resolve the matter amicably were exchanged by the parties and they have

been referred to above. The only failure by the plaintiff, was to file with the registrar

evidence of the attempts to resolve the matter. That evidence exists and has since been

made available to the court.

[20] The question is whether the failure to file the said evidence of attempts to

amicably resolve the matter should serve to non-suit the plaintiff in this case? I think not.

I say so because the intention of the rule maker was to impress on the parties the need

to seek to amicably resolve issues before submitting same to court for adjudication. In

this case, this was complied with and evidence to that effect has been placed before

10

court. As indicated, the only defect was that the plaintiff did not file the evidence, in the

form of letters with the registrar, when they evidently did attempt to resolve the matter

amicably.

[21] Filing the evidence of attempts with the registrar is no magic wand save serving

as proof of the attempts to amicably resolve the issue. In casu, it is clear that the main

intention of the subrule has been met i.e. an attempt to amicably resolve the matter.

Furthermore, evidence of these attempts, which were made before the case was set

down and are not a recent development, has been placed before court. The registrar

would not have done anything more than making these letters or records of attempts to

settle the matter amicably, available to the court. In my view, there has been substantial

compliance with the said rule and there was no attempt, in my view, by the plaintiff to

circumvent the prescriptions of the said rule.

[22] The issue of substantial compliance has been the subject of various decisions of

the courts of this Republic and they include Kanguatjivi v Shivoro Business and Estate

Consultancy6; Kessl v Ministry of Lands Resettlement and Two Others7 and Rally for

Democracy v Electoral Commission.8 In the Kessl judgment, for instance, the court

relied in dealing with the doctrine of substantial compliance, on Devenish, Govender

and HuIme9, where the learned authors state:

‘The answer to whether there has been substantial compliance must be sought in

the purpose of the statutory requirement, which must be ascertained from its

language, in the context of the legislation as a whole.’

In the instant case, the purpose of the subrules in question, as stated earlier, is to

ensure that in interlocutory proceedings, the parties seek to first amicably resolve the

dispute before setting it down for determination by the court. It is clear from what I have

6 2013 (1) NR 271 7 2008 (1) NR212-213 8 2010 (2) NR 487 at 515 D-E9 Administrative Law and Justice in South Africa (2110) at 248.

11

said above that that purpose was met and the only deficiency was not placing the

evidence of the attempts to amicably resolve the matter before the registrar. I therefore

find that there has been substantial compliance with rule 32 (9) and (10) and for that

reason, this court is at large to consider the interlocutory application without further ado.

The exception

[23] As intimated above, the plaintiff excepted to the defendant’s counterclaim on the

bases that it did not disclose a cause of action and/or that it was vague and

embarrassing. The defendants were afforded a period of 10 days within which to

remove the cause of the complaint. In response to this notice, the defendants delivered

a notice of intention to amend the particulars of claim, which notice was met with a firm

objection by the plaintiff. The main bases for this objection are that the insertion of the

proposed amendment would render the said pleading excipiable on the grounds that

same is vague and embarrassing.

[24] In order to fully comprehend, and to therefore determine whether the exception is

meritorious, it is prudent at this stage to set out the intended amendment together with

the specific grounds of objection thereto raised by the plaintiff. In its proposed

amendment, the defendant intends to add the following paragraph:

’11. As a result, the second defendant suffered damages which are made up as follows:

11.1 An amount of N$ 3 000 000. (Three Million Namibian Dollars) in the form of lost

commission in respect of cancellation of existing policies;

11.2 An amount of N$ 500 000. (Five Hundred Thousand Namibian Dollars) in respect

of premium increases on existing policies;

11.3 An amount of N$ 1 500 000. (One Million Five Hundred Thousand Namibian

Dollars) in respect of commission not earned (future loss of income) due to the

fact that the second defendant and its employees could no longer canvass for

policies on behalf of the plaintiff.’

12

[25] The plaintiff complains about the proposed amendment as being vague and

embarrassing on the following bases:

(a) that it is not clear from the pleadings which of the plaintiff’s clients

cancelled their policies or even the number of cancellations;

(b) the period during which the alleged cancellations took place is not

disclosed;

(c) the nature of the policies allegedly cancelled have not been disclosed i.e.

whether they be life insurances, pure endowments, endowment insurance,

retirement annuities, health and disability insurance e.t.c.

(d) the counterclaim does not disclose the nature and extent of the claim as

the number of cancellation of policies by clients is not disclosed;

(e) the proposed amendment does not allege the extent of the alleged debits

by the plaintiff and does not state whether or not there is a nexus between

each debit and the alleged cancelled policies;

(f) the defendants claim damages but there are no allegations of how the

damages allegedly suffered are calculated and arrived at; and

(g) the plaintiff has no way of ascertaining how the separate amounts of

damages claimed are arrived at and calculated, thus rendering the plaintiff

unable to properly prepare for trial in relation thereto.

[26] The first question to answer in this matter, having dealt with the bases of the

complaint, is whether it is acceptable to object to a proposed amendment on the basis

that same is excipiable. This question arises primarily in view of the court’s general

approach to amendment of pleadings. The learned authors Herbstein and Van Winsen10

state that the tendency of the courts has always been to allow amendments where this

can be done without causing prejudice to the other party. This, it was stated may be so

even if the other party has been negligent or careless and even in cases where the said

amendment has been introduced at a very late stage in the proceedings.11 This court

has, however, had occasion to pronounce itself very emphatically on amendments and

10 The Civil Practice of the Supreme Courts of South Africa Vol. 1, 5th ed, Juta at p 678-9.11 Macduff & Co (in liquidation) v Johannesburg Consolidated Investment Co. Ltd 1923 TPD 309.

13

how judicial case management has affected the approach of the court to amendment of

pleadings.

[27] In Cross v Fereira,12 the following appears regarding the very question posed

above:

‘While the practice is not entirely uniform on this point, the weight of authority seems to

favour the view that if the pleading as sought to be amended would be excipiable, this

affords ground upon which the Court may, in the exercise of its discretion, refuse the

application for an amendment’.

At page 450 E-F, the same court said, ‘save in exceptional circumstances where the

balance of convenience or some such reason might render another course desirable, an

amendment ought not to be allowed where its introduction into the pleading would

render such pleading excipiable.’

[28] It makes perfect sense in my view to disallow a proposed amendment if it is

indeed excipiable. I say so for the reason that the parties incur costs, time, and effort, to

allow a pleading sought to be amended to stand and then at a later stage, to take

proceedings to have it set aside on the basis that it is excipiable, when that may have

been plain from the very onset. Otherwise, what is an obviously limping or lame

document on the face of it will be incorporated into the pleadings at some expense and

loss of time, only to be later attacked and sought to be undone on the basis that it was

excipiable in any event. In my view, the bringing of an exception at this stage i.e. in

objection to a pleading being amended makes sense and is anticipatory in nature and

serves to prevent what may in some cases be the inevitable.

[29] It is thus clear to me that the course adopted by the plaintiff in the instant matter

is line with authority. What the court needs to establish at this juncture is whether the

exception raised is meritorious having regard to the contents of the pleading sought to

be impugned. It is thus important for present purposes to visit albeit briefly, the 12 1959 (3) SA 433 (C) at 449G-450H.

14

instances according to case law, where an exception properly applies. In July v Motor

Vehicle Accident Fund13 the court held s follows on this very issue:

‘It is a cardinal principle in dealing with an exception that if evidence can be led, which

discloses a cause of action alleged in the pleading, that particular pleading is not

excipiable. Thus a pleading is excipiable on the basis that no possible evidence led on

that pleading can disclose a cause of action.’

A not dissimilar conclusion was reached in Caterplus Namibia (Pty) Ltd v Hallie

Investment One Hundred and Fourty Two CC14 where the court expressed itself in the

following terms:

‘It is a first principle in dealing with matters of exception that, if evidence can be led

which can disclose a cause of action alleged in the pleadings, that particular pleading is

not excipiable. A pleading is only excipiable on the basis that no possible evidence can

be led to disclose a cause of action.’

[30] I now proceed to determine whether the grounds advanced by the excipient that

the pleading in question is, either vague and embarrassing, or discloses no cause of

action holds any water. In the counter-claim at paragraph 6.1, the defendant alleges that

in breach of the brokerage agreement referred to earlier, the plaintiff repudiated the

agreement by cancelling codes of the second defendant and/or codes allocated to the

1st defendant’s employees Risto Hasheela and T.S. Nilonga. At paragraph 7 of the

counterclaim, the defendant further avers that as a result of the cancellation of the said

codes, the 2nd defendant no longer has access to and control over payments by its

clients in respect of policies it has sourced for the plaintiff. The defendant claims that as

a result of this action attributed to the plaintiff, it lost out on commission it was otherwise

entitled to and therefor suffered damages in the amount of N$5 000 000.

13 2010 (1) NR 368 (HC) at 371 (8).14 (I 3086/2012) 2014 NAHCMD 192 (20 June 2014) [14].

15

[31] There are no allegations in the counterclaim regarding the identity or number of

clients who allegedly cancelled the policies as a result of the plaintiff’s aforesaid action.

Nor are the nature and types of the policies allegedly cancelled identified in the

pleadings. Furthermore, there is no nexus created between the said Hasheela and

Nilonga and the contract on which the dispute oscillates. In point of fact, no basis is laid

in the pleadings for the claim by the 1st defendant as he is not a party to the brokerage

agreement. The fact that he may have represented the 2nd defendant in signing the

agreement does not necessarily catapult him to a position where he can be regarded as

a party to the agreement in his own right and therefore liable to file a claim.

[32] Rule 45 (5) provides the following:

‘Every pleading must be divided into paragraphs, including subparagraphs, which are

numerically numbered and must contain a clear and concise statement of the material

facts on which the pleader relies for his or her claim, defence or answer to any pleading,

with sufficient particularity to enable the opposite party to reply and in particular set out –

*

(c) such particulars of any claim, defence or other matter pleaded as are necessary to

enable the opposite party to identify the case that the pleading requires him or her to

meet.’

It is plain that the above rule has been couched in peremptory terms, meaning that

every pleader is bound to comply with its imperatives. Failure to comply with any of the

imperatives will obviously result in the said pleading being regarded as bad and the

subject of an exception or other procedure to have same set aside.

[33] In view of what is stated above in paragraph [28], I am of the view that the

defendants have failed to comply with the mandatory provisions of the above rule in that

the material facts on which the defendant’s counter claim is based have not been

provided. Furthermore, as mentioned above, the pleader has not provided sufficient

material to enable the plaintiff to know the case it has to meet and therefore, to be able

16

to properly plead to it; identify the nature of evidence required to meet it and to

eventually prepare for trial accordingly.

[34] I now turn to the second complaint raised by the plaintiff regarding the counter-

claim and it is this: the defendants purport to claim damages which are alleged to result

from the plaintiff’s alleged breach of the contract. Rule 45 (9) provides that, ‘A plaintiff

suing for damages must set them out in such a manner as will enable the defendant reasonably

to assess the quantum thereof.’

[35] It stands to reason that in the instant case, and for purposes of this subrule, the

defendant is a plaintiff in the light of its counterclaim. For that reason, the provisions of

this subrule apply to a defendant, which is a plaintiff in its claim in the claim in

reconvention. In setting out the damages claimed, it must be stressed that this must be

done at the pleading stage and it is not a matter to be dealt with at the trial or when the

court has already found in favour of the plaintiff from the evidence already led. That this

is the case is clear from the subrule, which requires ‘every pleading to set out -.’ This must

therefore be set out at the stage of pleading and not the later stages of a trial. In this

case, it is clear that the defendant has failed to set out the damages claimed in a

manner that can enable the plaintiff to assess the quantum thereof. At best, the figures

claimed may well be a thumb-suck by the defendant as no material is placed which

serves to show how the figures claimed has been computed and arrived at.

[36] The damages claimed are pleaded in global manner. The nature of the damages,

which appear on the pleadings, to sound in contract, is also not clear, i.e. whether they

are general or special, to enable the plaintiff to deal properly with these and to also

ascertain, depending on the type alleged, whether the necessary averrals relating to the

type of damages claimed have been made. For instance, if a plaintiff claims general

damages in contract, it is incumbent upon the plaintiff to allege that the damages

claimed were within the contemplation of the parties and were for that reason, not too

remote.15 If the damages claimed are special damages, then an averral that in the

15 Amler’s Precedents of Pleading, 7th edition, 203 at p 118.

17

special circumstances attendant to the agreement, the parties actually or presumptively

contemplated that such damages would probably result from the breach alleged is

necessary.16

[37] In his spirited heads of argument, Mr. Amoomo, with guns blazing, as it were,

quoted the following excerpt by Joubert17 which was in turn quoted with approval by

Uietele J. in Oryx Development Group (Pty( Ltd v Government of the Republic of

Namibia18

‘The court should not look at a pleading with a magnifying glass of too high power. It is

the duty of the court when an exception has been taken to a pleading to see if there is a

point of law to be decided which will dispose of the case in whole or in part. If there is

not, then it must see if there is an embarrassment which is real as a result of the faults in

the pleadings to which an exception is taken. Unless the excipient can satisfy the court

that there is such a point of law or real embarrassment the exception should be

dismissed.’

I am of the view that in the instant case, considering the analysis of the pleadings

above, even viewing the defendant’s claim with a telescope, the court could arrive at no

other conclusion than that the pleadings in this matter are clearly excipiable and that

they are vague and serve to cause an embarrassment to the plaintiff, placing the

plaintiff in an awkward position regarding properly pleading thereto. This is, in my view

an eminently fitting case in which the exception should be upheld.

[38] I may not have captured all the deficiencies pointed out by the plaintiff in its

criticism of the defendant’s counterclaim, and I must say that I am in agreement with

most of them. I am of the considered view that from the contents of the foregoing

paragraphs, it is clear that the defendants’ counterclaim is excipiable and any latitude

given to them to file the proposed amendment, attended as it is by serious non-

compliance with the rules related to pleading, as demonstrated above, is a wasteful 16 Ibid at p 119.17 Law of South Africa vol 3 part 1 (first reissue by Harms and Van der Walt, 1997.18 NAHC MD 129 (20 May 2013).

18

exercise, both in terms of money and time for both sets of litigants. It would be akin to

taking a dead horse to the river to drink, resting on the forlon hope that it might, through

some miraculous happening, resurrect when it gets to the river. I will not take such a

chance.

[39] In the result, I issue the following order:

(1) The plaintiff’s exception has complied with the provisions of rule 32 (9) and (10)

of this court’s rules.

(2) The plaintiff’s exception to the proposed amendment of the defendant’s

counterclaim is hereby upheld with costs of one instructing and one instructed

Counsel.

(3) The defendant is afforded leave to amend its counterclaim, if so advised within

fifteen (15) days of the date of this order.

(4) The matter is postponed for case management to 5 August 2015 at 15h15 for a

status hearing.

_____________TS Masuku

Acting Judge