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Civil Procedure A questions and answers
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- Civil Procedure
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- Walter Sisulu University (WSU)
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CIVIL P 7 SEP 2017 TEST1. Discuss the circumstances when an exception to pleadings may be taken, the test to be
applied by the court when deciding on whether or not to uphold an exception and the
practical procedure for taking an exception. (20)
HCR 23(1) and MCR 19(1) are designed to limit the circumstances in which an exception may be
taken to summons or pleadings. Consequently an exception may only be taken against a pleading
which fails to disclose a cause of action or defence or is vague and embarrassing. In terms of HCR
18 a pleading must contain a complete chain of relevant factual allegations which set out in a
clear and concise language the claim or defence relied upon.
The omission of a necessary averment in a pleading breaks the sequence of factual allegations
and renders the pleading excipiable because of the omission of a necessary averment, it may be
considered vague and the whole pleading becomes unintelligible and legally invalid.
When the vagueness is such as to embarrass the opponent by preventing the opponent from
understanding the case which must be met, the pleading may be excepted to. Similarly where
the vagueness is due to the failure to disclose a cause of action or defence, the pleading is
rendered excipiable.
In Leathern v Tredoux, it was provided that where a statement is vague, it is either meaningless
or capable of more than one meaning. It is embarrassing in that it cannot be gathered form it
what ground is relief on, and therefore it is also something which is insufficient in law to support
in whole or in part the action or defence.
The practical procedure for taking an exception
A. The content of an exception- a notice of exception is a pleading and therefore in the HC
the notice must be signed by an advocate and by an attorney, unless the attorney in
question has been granted the right of appearance in a HC, in which event the pleading
may be signed by the attorney alone. The document must set out the grounds on which
the exception is founded and must end with a prayer for the relief sought. It is not
necessary to plead over when an exception is taken.
B. The exception to a vague and embarrassing pleading- when an exception wishes to
except to a vague and embarrassing pleading, the excipient must by notice afford the
opponent an opportunity to remove the cause of complaint within 15 days. If the
opponent concedes that the pleading is vague and embarrassing, then he/she may
rectify the defect by amending the pleading or by furnishing the other party with greater
particularity with regard to the pleading complained of.
C. The exception to a pleading that does not disclose a cause of action or defence- when
a pleading lacks averments necessary to sustain a cause of action or defence, there is no
obligation on the excipient to afford the opponent an opportunity of remedying the
, defect in terms of HCR 23(1). The excipient may immediately deliver a notice of
exception.
D. Conclusion- when an exception is upheld the pleading against which it is raised is
immediately destroyed. This does not mean that the action is dismissed or that the
defence is struck out. The exception will only serve to finalise the matter when the party
against whose pleading the exception is upheld is unable to effectively breach the
problem by means of an amendment.
The test to be applied by the court when deciding on whether or not to uphold an
exception
I. The court is oblige to determine whether the pleading lacks particularity and
whether this lack of particularity amounts to vagueness.
II. If there is vagueness, the court is then oblige to undertake a quantitative analysis of
such embarrassment as the excipient can show is caused to him/her by the
vagueness complained of. In other words is the pleading very vague or not so vague?
III. Consequently a decision must be made as to whether the embarrassment resulting
from the vagueness is so serious as to cause prejudice to the excipient of he/she is
compelled to plead to the pleading in its present vague form.
IV. Prejudice to the excipient is the ultimate test to determine whether or not an
exception should be upheld.
V. The onus is therefore on the excipient to show both vagueness amounting to
embarrassment and embarrassment amounting to prejudice.
VI. When an exception is upheld, the court will usually give the respondent an
opportunity to file an amended pleading within a certain time limit.
2. Where summons has been issued and served and the defendant does not wish to
defend the action he may enter into negotiations with the plaintiff to settle the dispute.
Discuss the various forms of offer or tender that may be made and the procedure to be
followed
A. An unconditional offer or tender
In terms of the rules the defendant may make an unconditional admission of liability either
in part or in whole. This is done by means of an unconditional offer of an amount in
settlement of the plaintiff’s money claim or an unconditional tender of performance of an act
in settlement of an obligation due to the plaintiff. The plaintiff may accept the amount offered
or the performance tender and still proceed to recover the balance of the claim or the balance
of the performance. The plaintiff will be granted an order of costs if successful in providing
an entitlement to any portion of the balance.
B. A conditional offer or tender
The defendant may choose not to admit liability but is prepared, as a compromise, to make
an offer or tender of settlement in order to end the litigation. This allows the defendant to
, continue to defend the action should the plaintiff refuse to accept the settlement. This type
of offer or tender presents the plaintiff with a difficult choice. If the plaintiff accepts the
settlement, the action is ended and if the plaintiff cannot proceed to recover the balance. If
the plaintiff rejects the offer or tender and continues with the action and subsequently at
trail fails to prove an entitlement to more than was offered or tendered, he/she is liable for
all the legal costs incurred in the action from the date of the offer or tender to the date of
the trial.
C. Offer or tender at common law
An offer or tender to settle need not necessarily be made in terms of the rules of the court. The
procedure described in rules is obviously the most effective one but it does not exclude other
forms of offers or tenders being made. Offers and tenders outside the rules are governed by the
common law. Here offer or tender is simply an offer of payment or performance made by one
party for acceptance by another.
Three different types at common law;
• The debtor-offeror may make an offer of compromise with a denial of liability. Such an
offer is made on condition that it is accepted in full and final settlement. (an offer of
compromise)
• The debtor-offeror may make a tender admission of liability. The debtor-offeror admits
liability for part payment of the creditor-offeree’s claim but denies liability for the
balance. (tender with admission of liability)
• The debtor-offeror may make a payment with admission of liability for part or the whole
of the claim. (unconditional payment with admission of liability)
Discuss the requirements of a plea on the merits in response to the plaintiff’s particulars claim.
• HCR 22(2) and (3)-
• (2)- The defendant shall in his plea either admit or deny or confess and avoid all the
material facts alleged in the combined summons or declaration or state which of the said
facts are not admitted and to what extent, and shall clearly and concisely state all the
material facts upon which he relies
• (3) every allegation of fact in the combined summons or declaration which is not stated
in the plea to be denied or to be admitted shall be deemed to be admitted if any
explanation, or qualification or any denial is necessary, it shall be stated in the plea.
MCR 17(2) and (3)
Admission
Denial
Non-admission
Confession and avoidance
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