COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
no: I 2194/2013
24 JULY 2015
the matter between:
GROUP OF AUCTIONEERS
OF THE HIGH COURT OF
citation: Namboer Group of Auctioneers CC v Kazondunge (I
2194-2013)  NAHCMD 169 (22 July 2015)
2 April 2015
22 July 2015
24 July 2015
Practice – Exception – On ground that pleading is
vague and embarrassing – basic requirements restated - pleading
is vague and embarrassing if either meaningless or capable of more
than one meaning - It is embarrassing if it cannot be gathered
therefrom what grounds are relied upon which results in an
insufficiency in law to support the whole or part of the action or
defence – Court held as far as the cheques are concerned they
are part of the pleadings in support of the allegation that the
commission agreed upon was 10 percent. I fail to understand on what
basis the defendant is unable to plead to that allegation - Exception
dismissed with costs.
The exception is dismissed with costs, such
costs to include the costs of one instructed and one instructing
The matter is postponed to 6
August 2015 at 15h30
for a status hearing.
The plaintiff instituted action against the defendants and claims for
the following relief:
Rectification of annexure “C” by substituting “Namboer
CC” where it appears with “Namboer Auctioneers CC”.
of annexure “C”, clause 10 thereof, by substituting “5%”
3. Payment in the
sum of N$822,250.00, alternatively N$411,125.00 from the first
4. Interest a
tempore morae on either one of the aforesaid amounts found to
be due and payable, at the rate of 20% per annum calculated from 11
June 2013 to date of payment.
5. Costs of suit,
including the costs of one instructing and one instructed counsel.
6. Further and/or
The first defendant defended the action but did not file his plea.
He however elected to serve and file an exception against the
plaintiff’s particulars of claim in terms of rule 57(1) of the
Rules of the Court. The exception is the subject of the hearing that
was set down on 1 July 2015.
The two grounds of exception as contained in paragraphs 1 to 8 of the
In paragraph 7 of the particulars of claim the plaintiff alleges that
a “written mandate to sell on public auction for a price not
less than N$4,378,000.00 is evidenced from the conditions of sale of
public auction of immovable property’;
aforementioned alleged “conditions of sale” comprise
annexure “C” to the particulars of claim (vide paragraph
8 of the particulars of claim);
3. Annexure “C”,
ex facie its content, is a document titled “conditions
of sale”, with an apparent certification (page 5 thereof) dated
10 June 2013;
4. Annexure “C”
Could not have been in existence at the time when the “instructions”
alleged in paragraph 5 of the particulars of claim were provided
4.2 Is not, and
does not evidence “the written mandate”;
5. In so far as
the “the written mandate” exists, the plaintiff has not
complied with the rule 45(7) and same is not attached to the
particulars of claim.
6. In paragraph 9
of the particulars of claim the plaintiff alleges that the
“conditions relevant to the plaintiff and binding on the
successful bidder” included that “the purchaser…
had to pay the auctioneer’s charges calculated at 5% of the
purchaser price (plus VAT thereon) on the day of sale” (vide
7. In paragraph
10.2 of the particulars of claim the plaintiff alleges that there is
a “second mistake”, and that the 5% unaltered in clause
10 was bona fide mutual error”.
8. Paragraphs 9.2
and 10.2 are mutually destructive and inconsistent. ‘
The first defendant claims that he is prejudiced by the vague and
embarrassing nature of the plaintiff’s pleadings and as a
result, has afforded the plaintiff the 14 days permitted by the rules
of court to remedy the aforesaid complaints, failing which the first
defendant prays that the court uphold his exception and dismissed the
plaintiff’s claim with costs.
The plaintiff elected not to amend the particulars of claim after the
exception was taken and chose to oppose the exception. The issue in
this matter is therefore whether the plaintiff’s particulars of
claim is vague and embarrassing.
the first defendant’s exception be upheld?
The first defendant’s exception stems from basis that the
particulars of claim are vague and embarrassing. The first defendant
argues that rule 45(7) is peremptory and the plaintiff's claim should
comply with the said rule. Rule 45(7) reads:
party who in his or her pleading relies on a contract must state
whether the contract
written or oral and when, where and by whom it was concluded and if
the contract is written a true copy thereof or of the part relied on
in the pleading must be annexed to the pleading.’
Mr Obbes on behalf of the first defendant, during oral argument
submitted that apart from non-compliance with rule 45(7), the vague
and embarrassing nature of the plaintiff’s pleadings are
seriously prejudicial to the first defendant, who is now required to
meet a case which is entirely unclear and uncertain. This aspect, he
argues, impacts on the first defendant’s rights to a fair trial
as guaranteed by Article 12 of the Namibian Constitution.
Mr Oosthuisen for the plaintiff, on the other submits that the first
defendant seems to be under mistaken impression that the court should
regard the individual paragraphs of the particulars disjunctively
from each other, which is clearly not the position envisaged by Rule
45 and the first sentence of the Trustco
Capital (Pty) Ltd v Atlanta Cinema CC and 3 Others.
Counsel for the plaintiff further argues that all that is required
from a plaintiff is to plead clearly and concisely the material facts
on which it rely for its claim, so as to enable the opposing party to
plead thereto and set out its defence, if any. In addition, if
a party relies on a contract, to state whether it is written or oral
and if written, annex such a copy to the particulars of claim and
state that it relies thereon.
The plaintiff therefore avers that, apart from the citation of the
parties, the plaintiff has complied with rule 45(7) and that all
essential averments necessary to sustain a cause of action are indeed
alleged and contained in the plaintiff’s amended particulars of
claim filed on 27 March 2015. On this premise, the first defendant’s
first ground should be dismissed.
The test for determining whether a pleading is vague and
embarrassing was succinctly set out in Jacobs
v The Minister of Safety and Security
where Parker, AJ stated at para 12 that:
a statement is vague it is either meaningless or capable of more than
one meaning. (Wilson
v South African Railways and Harbours
1981 (3) SA 1016 (C) at 1018H) And exception involves a two-fold
consideration, that is: (a) whether the pleading complained of lacks
particularity to the extent that it is vague, and (b) whether the
vagueness is of such nature that the excipient is prejudiced. (Trope
v SA Reserve Bank and Two Other Cases).
Where the court finds that the pleading is not vague, the second
consideration does not arise.’
It is trite therefore that a pleading is vague and embarrassing if it
is capable of more than one meaning or if it is not reasonably clear
what the pleading means. The necessity to plead was emphasised
and it was stated that particulars of claim should be phrased so that
a defendant may reasonably be required to plead thereto.
The court has recently restated the legal principles relating to
exceptions to pleadings on the grounds that they are vague and
embarrassing in the Trustco
Capital (Pty) Ltd v Atlanta Cinema CC and Others 
where the court stated that;
A pleading may disclose a cause of action or defence but may be
worded in such a way that the opposite party is prevented from
clearly understanding the case he or she is called upon to meet.
In such a case the pleading may be attacked on the ground that it is
vague and embarrassing. A man who has an excipiable cause of
action is in the same position as one who has no cause of action at
any case an exception on the ground that the pleading is vague and
embarrassing will not normally be upheld unless it is clear that the
opposite party would be prejudiced in his defence or action as the
case might be.
the first place when a question of insufficient particularity is
raised on exception the excipient undertakes the burden of satisfying
the court that the declaration, as it stands, does not state the
nature, extent and the grounds of the cause of action. In other
words he must make out a case of embarrassment by reference to the
pleadings alone … If an exception on the ground that
certain allegations are vague and embarrassing is to succeed, then it
must be shown that the defendant, at any rate for the purposes of his
plea, is substantially embarrassed by the vagueness or lack of
The court went on further to state that:
test applicable in deciding an exception based on vagueness and
embarrassment arising out of lack of particularity can be summed up
In each case the court is obliged first of
all to consider whether the pleading does lack particularity to an
extent amounting to vagueness. Where a statement is vague it is
either meaningless or capable of more than one meaning. To put it at
its simplest: the reader must be unable to distil from the statement
a clear, single meaning.
If there is vagueness in this sense the
court is then obliged to undertake a quantitative analysis of such
embarrassment as the excipient can show is caused to him or her by
the vagueness complained of.
In each case an ad hoc ruling must be made
as to whether the embarrassment is so serious as to cause prejudice
to the excipient if he or she is compelled to plead to the pleading
in the form to which he or she objects. A point may be of the utmost
importance in one case, and the omission thereof may give rise to
vagueness and embarrassment, but the same point may in another case
be only a minor detail.
The ultimate test as to whether or not the
exception should be upheld is whether the excipient is prejudiced.
The onus is on the excipient to show both
vagueness amounting to embarrassment and embarrassment amounting to
The excipient must make out his or her case
for embarrassment by reference to the pleadings alone.
The court would not decide by way of exception the
validity of an agreement relied upon or whether a purported contract
may be void for vagueness.’
As far as the cheques are concerned they are part of the pleadings in
support of the allegation that the commission agreed upon was 10
percent. I fail to understand on what basis the defendant is unable
to plead to that allegation.
In the result, I make the following order:
The exception is dismissed with costs, such costs to include the
costs of one instructed and one Instructing counsel.
The matter is postponed to 6
August 2015 at 15h30
for a status hearing.
G H Oosthuisen SC
by Francois Erasmus and Partners, Windhoek
by Koep & Partners, Windhoek
Capital (Pty) Ltd v Atlanta Cinema CC and 3 Others, Case
no. I 3268/2010 delivered on 12 July 2012. See also Ardea
Investments (Pty) Ltd v Namibia Ports Authority (I
553/2009)  NAHCMD 107 (19 April 2013).
(I 3772/2013)  NAHCMD 27 (19 February 2015) at para 12, p 7.
((P) I 3268-2010)  NAHC 190 (12 July 2012), p 8.