Katiti v Namibia Institute of Pathology Ltd (HC-MD-CIV-ACT-CON-2019/02012) [2020] NAHCMD 163 (26 May 2020);

Group

Full judgment

“ANNEXURE 11”

IN THE HIGH COURT OF NAMIBIA

 

Case Title:  Augustinus Katiti // Namibia Institute of Pathology Ltd

 

Case No:  HC-MD-CIV-ACT-CON-2019/02012

 

Division of Court:

High Court, Main Division

Heard before:

Honourable Justice Herman Oosthuizen

Agreed date for Delivery: 

29 May 2020

 

Delivered on:  26 May 2020

 

Neutral citation:  Katiti v Namibia Institute of Pathology Ltd (HC-MD-CIV-ACT-CON-2019/02012) [2020] NAHCMD 194 (26 May 2020)

 

Result on merits:

The exceptions failed.

The Order:

 

Having read the Heads of Argument by respective counsel:

 

IT IS ORDERED THAT:

 

[1]        Plaintiff's exceptions are dismissed.

[2]        Plaintiff shall pay the uncapped costs of the defendant on a party and party scale, which costs, shall include the costs of one instructed and one instructing counsel.

[3]      Plaintiff must plea to the counterclaim on or before 16/06/2020.

[4]    Defendant must replicate to the plaintiff’s plea to the counterclaim on or before 25/06/2020.

[5]     Both parties shall discover on or before 09/07/2020.

[6]     The parties must file a joint case management report on or before 15/07/2020.

[7]     The matter is postponed to 20/07/2020 at 14:15 for a Case Management Conference Hearing.

 

Reasons for Orders:

 

[1]        Plaintiff and defendant entered into a written agreement of employment during 2014 in terms whereof the defendant hired the services of the plaintiff as its Chief Executive Officer for the term of 5 years.

[2]        The employment of plaintiff was terminated during 2018. Plaintiff then claimed a sum of money from the defendant in terms of the written employment contract and appended the written employment agreement to his particulars of claim.

[3]        Defendant instituted a counterclaim also sounding in money. Defendant referred to the written employment agreement as appended to plaintiff's particulars of claim and claim that the said agreement be incorporated in its entirety as part and parcel of its counterclaim.

[4]        Defendant counterclaims from plaintiff on the basis of the written agreement and on the basis of an alleged fiduciary duty which plaintiff owed the defendant in conducting the defendant's business.

[5]        Defendant alleges that when the employment agreement was entered into and existed, the parties knew —

‛[5.1] That the Plaintiff, as the Chief Executive Officer, would devote his full time, ability and attention to the business of the Defendant and would further at all times faithfully and to the best of his ability endeavour to promote and extend the business of the Defendant.

[5.2] Further, that the effect of the employer-employee relationship created by the said contract of employment, imposed a duty on the Plaintiff to act in the Defendant's best interest that he had a duty not to work against the Defendant's interest and further that the Plaintiff, as a result thereof, was placed in a position in which he owed a fiduciary duty to the Defendant.

[5.3] That Plaintiff who was saddled with the fiduciary duty to Defendant, would breach his duty, if and when he fails to act bona fide in the furtherance of the interest of the Defendant and that such would entitle the Defendant to terminate the said contract.

[5.4] Further that, as a result, the Defendant would probably suffer a loss and as a consequence thereof, would be entitled to a compensation so as to be placed in the same position it would have been had the Plaintiff complied with the conditions of the employment contract.’

[6]        In its counterclaim the defendant further alleges that the contract of employment was concluded between the parties on the basis of such knowledge, alternatively that such knowledge was implied or inferred from the terms of the contract of employment.

[7]        Defendant further alleges that the plaintiff in breach of his fiduciary duty and without any authority or the approval of defendant's Board of Directors, perpetrated the wrongful acts which found the monetary claims of defendant against the plaintiff. These acts, the defendant claims, only came to the knowledge of defendant's directors during July 2017 when the internal audit was served on them.

[8]        Defendant then proceeds to set out four claims it alleged lies against the plaintiff for losses suffered by defendant on account of the alleged wrongdoing by plaintiff.

[9]        Plaintiff elected not to plead over on the counterclaim and to raise exceptions to the counterclaims of defendant on the basis that it is vague and embarrassing on grounds identified by the plaintiff.[1]

[10]      It is trite that the Excipient must show that the particulars pleaded by the defendant is so vague that it is confusing to the degree of becoming embarrassing to the extent that it will cause the Excipient prejudice to plead thereto

[11]      It is also trite that in deciding an exception the court shall determine the excipiability (in casu the vagueness and embarrassing nature thereof) on the pleading (counterclaim) as it stands assuming the facts stated therein to be true and correct.

[12]      The Supreme Court decision in Van Straten NO and Another v Namibian Financial Institutions Supervisory Authority and Another[2] is sensible, convincing and binding in circumstances as the present.

‛[19] Whether an exception on the ground of being vague and embarrassing is established would depend upon whether it complies with rule 45(5) of the High Court Rules. This rule requires that every pleading must contain a clear and concise statement of the material facts on which the pleader relies for his or her claim with sufficient particularity to enable the opposite party to identify the case that the pleading requires him or her to meet. Assessing whether a pleading is vague and embarrassing is now to be undertaken in the context of rule 45 and the overriding objectives of judicial case management. Those objectives include the facilitation of the resolution of the real issues in dispute justly and speedily, efficiently and cost effectively as far as practicable by saving costs by, among others, limiting interlocutory proceedings to what is strictly necessary in order to achieve a fair and timely disposal of a cause or matter.’

‛[20]     The two-fold exercise in considering whether a pleading is vague and embarrassing entails firstly determining whether the pleading lacks particularity to the extent that it is vague. The second is determining whether the vagueness causes prejudice. The nature of the prejudice would relate to an ability to plead to and properly prepare and meet an opponent’s case. This consideration is also powerfully underpinned by the overriding objects of judicial case management in order to ensure that the real issues in dispute are resolved and that parties are sufficiently apprised as to the case that they are to meet.’

[13]      Claims 1 to 4 of the counterclaim allege the periods, events, transgressions and amounts with adequate clarity in order to place the plaintiff in a position to plead sensibly to each claim.

[14]      The assessment whether the respective claims in the counterclaim are vague and embarrassing are done taking into account the whole of the counterclaim in context together with Rule 45 of the Rules of Court and the overriding objectives of judicial case management.

[15]      Van Straten highlights and emphasises two distinct stages:

Firstly, determining whether the pleading lacks particularity to the extent that it is vague, and

Secondly, whether the vagueness, if found, causes prejudice.

[16]      In the subject matter criticism may be levelled against the particularity to the extent that the pleaded transgressions could have been fleshed out more in the pleading itself. The criticism however does not rise to the level of causing vagueness and therefore no prejudice to the plaintiff is found.

[17]      In the premises then and having had regard to defendant's counterclaim as a whole the court is satisfied that the counterclaim set out with the required particularity the case the plaintiff has to meet and that plaintiff is able to plead thereto with sufficient clarity for the battlelines to be clearly drawn. What remain for the parties is to tender evidence on the real issues in order for the case to be decided on its true nature and import after proper and full discovery and making use of expert evidence where appropriate and utilising their rights in terms of inter alia Rules 94 and 95 of the Rules of Court and their rights to request and supply trial particulars.

[18]      All the exceptions raised by the plaintiff in the context of the counterclaim fails in the result.

[19]      Plaintiff being unsuccessful with his exceptions shall pay the costs occasioned thereby, not capped by Rule 32(11) and on party and party scale, which shall include the costs of one instructing and one instructed counsel. Both parties have asked for costs of two counsel. The amounts of money involved and the fact that senior counsel was employed by both parties also have an effect on the costs order.

[20]      In the result -

It is ordered that: 

[20.1]  Plaintiff's exceptions are dismissed.

[20.2]  Plaintiff shall pay the uncapped costs of the defendant on a party and party scale, which costs, shall include the costs of one instructed and one instructing counsel.

[20.3] Plaintiff must plea to the counterclaim on or before 16/06/2020.

[20.4] Defendant must replicate to the plaintiff’s plea to the counterclaim on or before 25/06/2020.

[20.5] Both parties shall discover on or before 09/07/2020.

[20.6] The parties must file a joint case management report on or before 15/07/2020.

[20.7] The matter is postponed to 20/07/2020 at 14:15 for a Case Management Conference Hearing.

 

 

Judge’s signature:

Note to the parties:

Counsel:

Plaintiff

Defendant

 

Mr AW Corbert SC

Metcalfe Attorneys

 

Advocate T Ngcukaitobi SC

Instructed by Muluti & Partners

 

 


[1]   Exception dated 12 February 2020.

[2]   2016 (3) NR 747 (SC) at page 756.

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