Summary
Summary CIV 3701 Civil Procedure Chapter SIP notes ch 14 - 24
- Course
- CIV 3701
- Institution
- University Of South Africa (Unisa)
Summary CIV 3701 Civil Procedure Chapter SIP notes ch 14 - 24
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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.
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, 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.
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
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, 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.
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.
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, 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.
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