SIP 400
Semester Test 2
Summaries
by Marissa Badenhorst
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These summaries were compiled from the following sources:
Theopilopoulos et al “Fundamental Principles of Civil
Procedure” 3rd edition 2015 LexisNexis
SIP Study Guide
SIP class slides
All other prescribed material referred to in the study guide
(legislation, case law etc.)
Copyright vests in the authors of the book and in the University
of Pretoria. These notes are in no way a substitute for the
textbook, but merely a personal summary of the course syllabus.
Please use at your own risk. Although I always try to create
summaries that are as comprehensive as possible I will not
accept any responsibility for the outcome of your assessments
and strongly advise that you use these in conjunction with the
textbook and prescribed material. Keep a copy of the MCR
rules & Amler’s Precedents of Pleadings with you when
completing the test.
- Marissa, 2020
,SIP 400 Study Theme 10
Study Theme 10
Further Interim Proceedings
During the Pleadings Phase:
Action Procedure
Prescribed Material
CHAPTER 14 read with MC rule 19
HCR 18; 23.
Trope v South African Reserve Bank 1993 (3) SA
Study Unit 1:
264 (A)
Exceptions Wellington Court Shareblock v Johannesburg City
Council 1995 (3) SA 827 (A)
MCR 19.
Study Unit 2: CHAPTER 14.3 read with MC rule 19.
Striking Out
Study Unit 3: CHAPTER 14 read with MC rule 60A.
HCR 30.
Irregular steps ito High
MCR 60A.
Court Rule 30 and MCR Cyril v Smiedt (Pty) Ltd v Lourens 1966 (1) SA 150
60A (O).
Study Unit 4: CHAPTER 14.
Request for Copies and MCR 16, 60 and 60A.
Paul v Peter 1985 (4) SA 227 (N)
Further Particulars in the
Magistrate’s Court
CHAPTER 15 read with MC rules 18, 18A and 27
and Form 6.
Study Unit 5:
HCR 34 and 34A.
The Settlement Offer MCR 18, 18A and 27 and Form 6.
Thutha v Thutha 2008 3 SA 494 (TkH).
CHAPTER 15 read with MC rule 62 and s 32 of the
MCA and Forms 10 – 12.
HCR 28; 47 and 47A. MCR 62 and s 32 of the MCA
Study Unit 6:
and Forms 10 – 12.
Security for Costs Magida v Minister of Police 1987 (1) SA 1 (A).
Giddey no v JC Barnard 2007 5 SA 525 (CC)
Luiz & Taljaard 2009 SAMLJ 102 – 109.
,SIP 400 Study Theme 10
Defective Processes and Non-Compliance
with the rules
The purpose of pleadings is to define clearly the issues (i.e. the facta probanda)
between the litigating parties
Pleadings that are vague & confusing, or do not comply with the rules of
court, are not able to clearly define the issues
A number of interim procedures have therefore been developed to provide a
remedy for defective pleadings and to ensure compliance with the rules
These procedures are as follows:
Exception
Application to strike out
Application to set aside an irregular step
Enforcing compliance and condoning non-compliance with the rules
Amendment of pleading
• Used to attack an ENTIRE pleading that lacks:
• cause of action OR
Exception
• defence OR
• is drafted in a vague and embarrassing manner
Application to • Used to attack portions of a pleading which are
strike out offensive
• Used when there has been non-compliance with the
Application to set rules
aside an irregular
step • It allows an incorrect or defective procedural step to
be set aside
Enforcing
compliance and • Used to enforce compliance with a rule OR to
condoning non- condone non-compliance by a party on good
compliance with cause shown
the rules
• Allows a pleader (i.e. a plaintiff or defendant) to
Amendment of
correct his/her own pleadings which have been
pleading
identified as defective
,SIP 400 Study Theme 10
Summary of the principles relating to exceptions,
applications to strike out and irregular steps
Exception Striking Out Irregular Step
Definition: It is an objection Definition: The removal of a Definition: The removal of an
which is apparent ex facie word or paragraph or entire pleading because of
the existing pleading and averment which should not non-compliance with the
which extinguishes the entire be in the pleading rules of litigation
pleading
Procedure: A notice which Procedure: An interlocutory Procedure: An interlocutory
amounts to a pleading application and a short form application and a short form
of notice of notice
Available to either party Available to either party Available to either party
Only applies to trial actions Applies to both trials and Applies to both trials and
motion applications motion applications
Must establish prejudice if Must establish prejudice Must establish prejudice
vague and embarrassing
Taken against a pleading, Taken against a pleading or Taken against a pleading or
but not an affidavit, which affidavit that is irrelevant, affidavit that is an irregular
contains no cause of action scandalous or superfluous step
or is vague and
embarrassing
No pleading over is No pleading over is No further procedural step
necessary necessary may be taken
,SIP 400 Study Theme 10
Study Unit 1: Exceptions
Definition When may it be used?
Exceptions are provided for in HCR 23
May be used where a pleading is
and MCR 19. They are described as “a
incapable, on a reasonable interpretation,
legal objection to the opponent’s
of revealing a cause of action or defence
pleading”
recognised in law. The grounds upon which
• Since an exception is a legal
a party may except to the opposing party’s
objection to a formal and material
pleading are the same in the High Court
defect which appears ex facie the
and Magistrates’ Courts
pleading no facts outside the
• HCR 23(1) and MCR 19(1) provide that an
pleadings may be raised
exception may be taken to a pleading if
the pleading:
What is the purpose of an 1. Is vague and embarrassing; or
2. Lacks averments which are
exception? necessary to either:
• To settle the whole case or part thereof • sustain an action; or
without the necessity of going to trial and • a defence
so to save costs
Parties Involved
• The party taking the exception = the excipient
• The party whose pleading is being excepted against = the respondent
• A pleading against which exception may validly be taken = is said to be
excipiable
What happens when a court upholds an exception?
• The court has a general discretion to order the exception OR stand over until trial
• The respondent (the party whose pleading was excepted against) is usually afforded
the opportunity of amending the pleading however, there are certain defects which
an amendment cannot cure and, in such event, the exception has the effect of finally
disposing of the matter before trial
• When a successful exception is taken against a pleading, no plea, replication or other
pleading is necessary until the defect is cured
• Even when an exception is unsuccessful the points of law raised by the exception
may be dealt with again at the trial
• An exception may only be taken to a pleading exception may not be taken to an
affidavit
• Exception may be taken against a combined summons but not against a simple
summons
• Why?
• Because simple summons does not constitute a pleading
• An exception itself constitutes a pleading and therefore it is possible to have an
exception to an exception
• An exception MUST set out the grounds of exception
• It MUST contain a prayer that either the Plaintiff’s claim be dismissed, or that the
Defendant’s plea be set aside
,SIP 400 Study Theme 10
A pleading is vague and embarrassing
• Definition: A pleading is vague and embarrassing when it can be read/interpreted in
any number of ways i.e. when material averments are unclear or ambiguous this
type of embarrassment is substantial
• A party is entitled to know what cause of action or defence he/she is being called
upon to meet if this is not apparent from the pleading, the pleading is vague or
unintelligible
• The party receiving the pleading is entitled to protection against embarrassment
• Situations in which a pleading may be defined as vague or embarrassing:
1. When it can be read or interpreted in any number of ways
– i.e. the material averments are unclear or ambiguous
• This type of embarrassment is substantial
• Substantial embarrassment is also caused when the defendant
fails to plead ito either HCR 22(2) or MCR 17(2), i.e. admitting, non-
admitting or denying or confessing and avoiding the allegations in
the summons or declaration, or failure state which allegations are
not admitted
• E.g. a lack of clarity as to whether the plaintiff is suing in contract or
delict
• Embarrassment may also arise when averments are contradictory and
not pleaded in the alternative
2. When they are self-contradictory or contradict one
another
• E.g. when a defendant, by admitting one of two sets of contradictory
allegations in a plaintiff’s pleading, renders ineffective the other
allegations – the POC are excipiable as being vague and embarrassing
3. When it lacks particularity – i.e. it does not include
material averments
• E.g. there will be a lack of particularity when the pleading does not
comply with HCR 18(4) and MCR 6(4) or HCR 22(2) and MCR 17(2) the
pleading lacks particularity when it contains a bare reference to a
statute or set of regulations without specifying the particular section or
regulation on which reliance is placed (Trope v SA Reserve Bank)
• It will also lack particularity when a party alleges that a contract was
concluded by conduct but fails to specify what that conduct was
,SIP 400 Study Theme 10
• Where a pleading is vague and embarrassing it ≠ open for the careless pleader
to suggest in defence of the pleading that it is possible to plead to the POC by
simply denying the allegations made
• This ≠ a satisfactory answer to the plaintiff’s entitlement to know that case
he/she is called upon to meet
• Where a party believes that the opposing party’s pleading is vague and
embarrassing the party must, within the period allowed for the filing of any
subsequent pleading, deliver a notice calling on the opposing party to remove
the cause of complaint within 15 days of the date of notice
• A notice of this nature is customarily prefaced with the words:
“take notice that the defendant (or the plaintiff) hereby affords the plaintiff (or
the defendant) an opportunity, in terms of HCR 23(1) and MCR 19(1), to remove
the following cause of complaint which renders the plaintiff’s particulars of
claim (or the defendant’s plea) vague and embarrassing”
• The party taking exception has 10 days from the date on which a reply to
such a notice is received, or from the date on which such reply is due, to
deliver the exception
• If the opposing party believes that there is merit in the exception the
opposing party may within the 15 day period amend the pleadings in the
prescribed manner
• When an exception is taken to a pleading on the ground that it is vague and
embarrassing, the excipient must satisfy the court that the vagueness causes
embarrassment to such a degree that the 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
• The excipient must therefore establish a substantial or material
embarrassment
• An exception on this ground will not normally dispose of the matter
• When an exception is upheld on the ground that a pleading is vague and
embarrassing the court will usually afford the respondent an
opportunity to file an amended pleading within a specified time
A pleading lacks averments
Definition: if the plaintiff has failed to plead an allegation which is a necessary
ingredient of the cause of action, or if it does not justify the legal conclusion or the
prayer, the defendant may except to the pleading
An exception of this nature is customarily prefaced by the words:
“take notice that the defendant (or plaintiff) hereby excepts to the plaintiff’s particulars
of claim (or the defendant’s plea) on the basis that they lack averments necessary to
sustain a cause of action (or defence) and are bad in law for the following reasons…”
,SIP 400 Study Theme 10
It is NB to distinguish between an exception which lacks an averment necessary to sustain a
cause of action/defence; and an exception which is bad in law:
1. Lacking an Averment necessary to sustain a cause of action
• A claim may succeed only if it discloses a complete cause of action such a
cause of action may be founded upon either of the substantive branches of
the common law or upon a statute
• A cause of action is a formula which sets out a chain of material
facts/essential allegations which justify a legal conclusion and a prayer
• If the plaintiff has failed to plead an allegation which is a necessary
ingredient of the cause of action, or if it does not justify the legal
conclusion or the prayer the defendant may except to the pleading
• For example:
• A plaintiff pleads the following averments:
• The plaintiff and the defendant entered into an agreement ito which the
defendant sold to the plaintiff a BMW motor vehicle for R150 000
• The defendant failed to deliver the motor vehicle to the plaintiff
• The plaintiff accordingly cancelled the agreement
• The Plaintiff claims relief on the basis of these averments – his difficulty is,
however, that the defendant’s failure to perform by failing to deliver the
vehicle to the plaintiff is not, in itself, sufficient to entitled the plaintiff to cancel
the agreement substantive contact law demands that there must be a
term of the agreement which allows cancellation in these circumstances
• An allegation that there is such a term is essential to complete the plaintiff’s
cause of action
• Since there is no allegation of that nature in the pleading the plaintiff’s
particular’s of claim are excipiable because it lacks a cause of action
• It is also possible to raise the defence of lack of jurisdiction by way of exception
rather than by filing a special plea this is because jurisdiction is an essential
component of a cause of action
• If it appears from the pleading that the court does not have jurisdiction, the
pleading lacks the averments necessary to sustain a cause of action and a
party may except to the pleading
• A party wishing to except to a pleading on the ground that the pleading lacks a
necessary averment ≠ obliged to give the opposing party an opportunity to rectify
the pleading
2. Bad in law
• Definition: The claim is based on the contention that the law recognises no such
claim
• A party wishing to except to a pleading on the grounds that it is bad in law is not
obliged to give the opposing party an opportunity to rectify the pleading, as the
pleading is simply not capable of rectification
• A successful exception will fully dispose of the matter
• This kind of exception is based purely on the law and not on a technical deficiency
in the pleading capable of subsequent rectification
• The objection does not relate to the manner in which the claim is pleaded
it is premised on the contention that the law recognises no such claims
, SIP 400 Study Theme 10
• A party wishing to except to a pleading on the grounds that it is bad in law ≠
obliged to give the opposing party an opportunity to rectify the pleading, as the
pleading is simply not capable of rectification
• However, in practice informally notifying the other party of the intention to
take an exception is a form of common courtesy
• When an exception is upheld on these grounds the decision is a final one
based on law and not on any technical deficiency capable of subsequent
rectification
• ∴ successful exception will finally dispose of the matter and in this context
an exception may be described as a means of obtaining an inexpensive
and speedy decision on a question of law
Procedure to taking an exception
Exception to a vague and embarrassing Exception to a pleading which does not
pleading disclose a cause of action or defence
1. The excipient must deliver a notice 1. The excipient must, within the time
affording the opposing party 15 days to allowed for filing any subsequent pleading,
remove the cause of complaint deliver a notice of exception
If the opposing party If the opposing party Where the excipient Where the excipient
concedes that the fails to remove the is the plaintiff: is the defendant:
pleading is vague cause of complaint
and embarrassing The plaintiff will have The defendant must
15 days after the within 20 days
the opposing party the excipient may service upon except to the
may rectify the then except by him/her of the plea Plaintiff’s Particulars
defect by amending delivery a notice of in which to except of Clam
the pleading exception to the defendant’s
plea
2. The excipient must deliver the notice of There is no obligation on the excipient to
exception within 10 days of the date on give the opposing party an opportunity to
which the opposing party delivers a reply to remedy the defect ito HCR 23(1) and MCR
the notice to remove the cause of 19(1)
complaint OR within 10 days from the date
on which such a reply is due
