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Ver detailed notes of Chapter 14-24. Includes class notes and summaries of the textbook.
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Civil Procedure Chapter 1414.1 Intro
Exception HCR 23 and MCR 17 and 19.
Exception procedure used where pleading is incapable, on reasonable interpretation, of revealing a cause of
action/defence recognized in law.
Exception = “legal objection to opponent’s pleading.
Exception is legal objection to formal and material defect which appears ex facie the pleading, no facts
outside the pleading may be raised, and for purposes of deciding he exception, court will presume
truthfulness of all facts contained in pleading.
Notice of exception may not contain any additional averments, nor any evidence be adduced at the hearing.
Various grounds for exception differ in Magistrates’ Court (MC) and High Court (HC).
Party taking exception = “excipient” and said to “except” to opposing party’s pleading.
Pleading against which exception may be validly be taken is said to “excipiable”.
Opposing party = “respondent”.
When court upholds exception, respondent usually afforded opportunity of amending defective pleading.
Certain defects cannot be cured by amendment. In such event exception has effect of finally disposing of the
matter before trial.
Successful exception taken against pleading, plea, replication or other pleading is necessary until defect is
cured (only if pleading capable of amendment).
When exception is unsuccessful points of law raised by exception may be dealt with again at trial.
Court has general discretion to order exception to stand over until trial.
Purpose of exception = settle whole case, without necessity of going to trial to save costs, avoid unnecessary
leading of evidence and ultimately protect litigant from situation where opposing party’s pleading is so vague
and embarrassing that no proper response can be made thereto.
14.2 When an exception may be taken
Rules of HC and MC are designed to limit circumstances in which exception may be taken.
Certain degrees of overlap, grounds upon which party may except to the opposing party’s pleading in HC and
MC are different.
14.2.1. High Court
HCR 23(1) – exception may be taken to pleading:
(a) If it is vague and embarrassing; or
(b) If it lacks averment necessary to sustain an action/defence.
Exception may only be taken to pleading and exception may NOT be taken to affidavit.
Exception may be taken against combined summons and may NOT taken against simple summons because
simple summons is NOT a pleading.
Exception = pleading, courts have allowed exception against exception. Exception is bad in law if it doesn’t
properly set out grounds on which it is based.
Exception must contain prayer, either that plaintiff’s claim be dismissed or that defendant’s plea be set aside.
Exception which doesn’t contain prayer = bad in law.
Exception may be taken in the following circumstances:
14.2.1.1.Pleading is vague and embarrassing
Party is entitled to know what cause of action/defence he/she is being called upon to meet.
If it is not apparent from pleading, pleading is vague/unintelligible.
Number of situations in which pleading may be defined as vague and embarrassing.
(a) pleading will be vague and embarrassing when it can be read/interpreted in any number of ways. This
type of embarrassment will be substantial.
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, Example = lack of clarity as to whether plaintiff is suing in contract/delict. It may also arise where
averments in pleading are contradictory and not pleaded in alternative. Substantial embarrassment is also
caused where defendant fails to plead in one of specified ways set out in HCR 22(2), admitting, denying
or confessing and avoiding allegations in summons or declaration.
(b) When defendant, by admitting one of 2 sets of contradictory allegations in plaintiff’s pleading, has
rendered ineffective other allegations, particulars of claim are excipiable as being vague and
embarrassing.
(c) Where pleading lacks particularity it may be vague and embarrassing. Lack of particularity must be of
sufficient degree so to render pleading vague and embarrassing i.o.t. justify exception on this ground.
Contention that particulars of claim are vague and embarrassing cannot rest merely on averment that
they lack particularity.
Example: there will be lack of particularity where pleading doesn’t comply with HCR 18(4)/HCR 22(2).
Also lack of particularity where there is a bare reference in pleading to statute/set of regulations without
specifying particular section/regulation on which reliance is placed.
Pleading will lack particularity when party alleges contract was concluded by conduct but fails to specify
what that conduct was.
Where a pleading is vague and embarrassing it is not open for the careless pleader to suggest, in defence of
pleading, that it is possible to plead to the particulars of claim by simply denying allegations made. Doesn’t
provide a satisfactory answer to plaintiff’s entitlement to know what cause he/she is called upon to meet.
Where party believes that the opposing party’s pleading is vague and embarrassing party must, within period
allowed for the filing of any subsequent pleading, deliver a notice calling opposing party to remove the cause
of complaint within 15 days of date of notice.
Notice of this nature it is customarily prefaced by words “take notice that the defendant (or plaintiff) hereby
affords the plaintiff (or defendant) an opportunity, in terms of HCR 23(1), to remove the following cause of
complaint which renders plaintiff’s particulars of claim (or defendant’s plea) vague and embarrassing; etc.”
Party taking exception has 10 days from date on which reply to such notice is received, or from date which
such reply is due, to deliver exception.
If opposing party believes that there is merit in the exception, the opposing party may within the 15-day period
amend to pleadings in prescribed manner.
When exception is taken to pleading on ground that it is vague and embarrassing, excipient must satisfy court
that vagueness causes embarrassment to such degree that excipient will be prejudiced in the conduct of the
action if forced to contest the action on the basis of the opposing party’s pleadings as they stand.
Excipient must establish substantial and material embarrassment.
Exception on this ground will not normally dispose of the matter. When exception is upheld on ground that
pleading is vague and embarrassing the court will usually afford respondent an opportunity to file an amended
pleading within specified time.
14.2.1.2. Pleading lack averment
Exception of this nature customarily prefaced by words “take notice that the defendant (or plaintiff) hereby
excepts to the plaintiff’s particulars of claim (or defendant’s plea) on basis that they lack averments necessary
to sustain a cause of action (or defence) and are bad in law for following reasons.
Nb to distinguish between exception which lacks averment necessary to sustain cause of action/defence and
exception which is bad in law.
1. lacking an averment necessary to sustain a cause of action.
claim may succeed only if it discloses complete “cause of action”.
Cause of action may be founded upon either one of substantive branches of the CL/statute.
“Cause of action” = “formula” which sets out a chain of material/essential allegations which
justify legal conclusion and prayer.
If plaintiff failed to plead allegation which is a necessary ingredient of the cause of action, or if
it does not justify legal conclusion/prayer, defendant may except to pleading.
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, Plaintiff pleads following averments:
Plaintiff and defendant entered into agreement in terms of which the defendant sold
to plaintiff a BMW for R150 000.
Defendant failed to deliver motor vehicle to plaintiff.
Defendant accordingly cancelled agreement.
Plaintiff claims relief on basis of these averments.
Plaintiff’s difficulty is that defendant’s failure to perform by failing to deliver car to plaintiff is
not in itself, sufficient to entitle plaintiff to cancel agreement.
Substantive contract law demands that there MUST be a term of the agreement which allows
cancellation in these circumstances.
Allegation that there is such a term is essential to complete plaintiff’s cause of action. Since
there is no allegation of that nature in pleading, plaintiff’s particulars of claim are excipiable
because it lacks cause of action.
Possible to raise defence of lack of jurisdiction by way of exception rather than filing special
plea. Jurisdiction is essential component of cause of action, and if it appears from pleading
that court does not have jurisdiction, pleading lack averments necessary to sustain cause of
action and party may except to pleading.
Other defences which may be raised by way of exception are lack of locus standi iudico and
non-joinder or misjoinder. However, defences should be raised by way of exception only
where facts in support of such defence should be raised by way of exception only where facts
in support of such defence appear ex facie the pleadings, because no evidence may be led
during exception procedure.
If evidence is required to establish defence, defence must be raised by way of special plea,
where leading of evidence is permissible.
Party wishing to except to pleading o.g.t. pleading lacks necessary averment is not obliged to
give opposing party opportunity to rectify pleading. However, custom is informally to invite
opposing party to amend pleading before taking exception. This may save costs and avoid
delay resulting from exception.
Exception based in mere technical ground will not succeed unless excipient can show
prejudice. OBJECT of exception = not to take advantage of technical flaw but to dispose of
the case, or portion thereof, in expedious manner or to protect excipient against
embarrassment which is serious enough to merit costs of exception.
Exception on technical ground will not normally dispose of the matter.
Exception upheld o.g.t. averment is technically flawed, court will usually give respondent
opportunity to file amended pleading within specified time, irrespective of whether respondent
requested leave at the hearing or not.
2. Bad in Law
Morris: “when pleadings up to date of exception contain sufficient averments/admissions by
your opponent to justify court in deciding case against him/her assuming all averments are
true…when I refer to “deciding case against him/her” I mean to convey that the decision will
be final one based on law and not on any technical deficiency in pleading”
Kind of exception is based purely on law not technical deficiency in pleading capable of
subsequent rectification.
Objection doesn’t relate to manner in which claim is pleaded, premised on contention that law
recognises no such claim. Where plaintiff bases claim for damages on innocent
misrepresentation inducing contract, exception may be taken.
Preller v Jordaan defendant took exception to plaintiff’s claim on basis that undue
influence was not a ground for setting aside contract.
Party wishing to except to pleading on ground that it is bad in law is not obliged to give
opposing party opportunity to rectify pleading, as pleading is simply not capable of
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, rectification. BUT even in these circumstances practitioners except opponents to afford them
courtesy of informally notifying them of intention to take exception.
When exception upheld on these grounds, decision is a final one based on law and not on
any technical deficiency in pleading capable of subsequent rectification. Effect = successful
exception will finally dispose of the matter. In this context = exception may be described as a
means of obtaining inexpensive and speedy decision on question of law.
When several causes of action/alternative defences, exception to one of these is permissible
even if exception to another is not.
Valid exception to one of several causes of action/alternative defences doesn’t destroy the
entire pleading.
When several distinct claims are founded upon separate and distinct facts which have been
separately and distinctly pleaded, exception to one is always proper.
In context of exceptions brought on basis that a pleading lack averment necessary to sustain
a cause of action/defence.
Party failing to take exception which would have made it unnecessary for the case to go to
trial will be allowed such costs only as would have been incurred if matter had been disposed
of on exception.
This is not an inflexible rule. Question in each case is whether party who did not take
exception was unreasonable in failing to do so. If failure to take exception was unreasonable,
party is not entitled o costs incurred.
14.2.1.3. Procedure for taking an exception i.t.o HCR 23
Procedure for taking exception in HC = set out in HCR 23(1) read with HCR 23(3) and HCR 25(4). Procedure
in HC differs slightly from MC, depending on whether objection is based on “the pleading is vague and
embarrassing” or on “it lacks averments necessary to sustain an action/defence.”
1. Exception to vague and embarrassing pleading
Where excipient wishes to take exception that pleading is vague and embarrassing, excipient
must, within time allowed for filling any subsequent pleading, deliver notice affording
opposing party 15 days to remove cause of complaint.
If opposing party concedes that pleading is vague and embarrassing, opposing party may
rectify the defect by amending pleading.
If opposing party fails to remove cause of complaint, excipient may except by delivering
“notice of exception”.
Excipient must deliver “notice of exception” within 10 days of date on which opposing party
delivers a reply to notice to remove cause of complaint/within 10 days from date on which
reply is due.
2. Exception to pleading which doesn’t disclose a cause of action/defence.
Where excipient wishes to take exception to pleading which lacks averments necessary to
sustain action/defence, excipient must, within time allowed for filing any subsequent pleading,
deliver “notice of exception”.
There is no obligation on excipient to afford opposing party an opportunity of remedying
defect i.t.o HCR 23(1).
“notice of exception” = pleading and therefore in HC notice must be signed by advocate and
an attorney, UNLESS attorney has been granted right of appearance in HC, in which event
pleading may be signed by attorney alone.
Document must set out in clear and concise terms grounds on which exception is founded.
“Notice of exception” MUST end with prayer for relief sought. Not necessary to plead over
when exception is taken.
When exception is upheld, pleading against which it is raised is immediately destroyed.
Doesn’t mean action is dismissed/that defence is struck out.
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