Court name
High Court
Case number
3268 of 2010
Case name
Trustco Capital (Pty) Ltd v Atlanta Cinema CC and Others
Media neutral citation
[2012] NAHC 190
Judge
Geier AJ













IN
THE HIGH COURT OF NAMIBIA







CASE
NO:(P) I 3268/2010











In the matter between:
















TRUSTCO CAPITAL (PTY) LTD



PLAINTIFF/RESPONDENT







and













ATLANTA
CINEMA CC


JOSEPH
JOHANNES BECKER


PETRUS
LODEWIKUS LUDWIG


DAMON
IAN VAN DER MERWE










1STDEFENDANT/EXCIPIENT



2ND DEFENDANT/EXCIPIENT



3RD DEFENDANT/EXCIPIENT


4TH
DEFENDANT/EXCIPIENT




_______________________________________________________________






SUMMARY






Practice - Pleadings - Exception - On ground that pleading vague and
embarrassing - Basic requirements restated – Pleading is vague
and embarrassing if either meaningless of 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 -An
exception that a pleading is vague and embarrassing strikes at the
formulation of the cause and action and not its legal validity -







Practice - Pleadings - Exception - On ground that pleading vague and
embarrassing – Will not be allowed unless excipient seriously
prejudiced if offending allegations would not be expunged –







Practice - Pleadings - Exception - On ground that pleading vague and
embarrassing – court in deciding exception to apply step by
step approach – 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
- 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 - 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 prejudice
-The excipient must make out his or her case for embarrassment by
reference to the pleadings alone-







Practice - Pleadings - Exception - On ground that pleading vague and
embarrassing – General underlying requirement to
non-objectionable pleading set by Rules 18(4) of the Rules of High
Court – and in cases of a contractual nature by sub-rule 18(6)
of the Rules-







Practice - Pleadings - Exception - On ground that pleading vague and
embarrassing – Plaintiff/respondent – in addition to
annexing and pleading terms of written loan agreement –
pleading - that the loan was advanced to first
excipient - that respondent complied with its obligations in terms of
the agreement relied upon already prior to the conclusion of the
agreement - that the respondent became entitled to demand immediate
repayment of all amounts owing in terms of the loan in the event of
the first excipient failing to comply with any terms of the loan
agreement -that first excipient failed to comply with its obligations
in terms of the loan agreement in that it failed to pay the
instalments for May, June and July 2010 -that repayment of all due
amounts was demanded -that second, third and fourth excipients - who
bound themselves - jointly and severally - as sureties and
co-principal debtors - in favour of the respondent - in respect of
the first excipient’s liability arising from the loan agreement
relied upon - in such premises– became - jointly and severally
liable - with first excipient – for repayment of all due
amounts to respondent -







Held – that this was a clear and concise statement of the
material facts relied upon by the pleader of the respondent’s
claim as required by Rules 18(4) and (6) – that such statement
was neither meaningless nor capable of more than one meaning –
which also disclosed an intelligible cause of action –







Held – If any vagueness created by the complained of allegation
that moneys were apparently advanced before the loan agreement was
concluded - the court –upon undertaking a quantitative analysis
of such embarrassment - findingthat the offending claim particulars
also not embarrassing - as the grounds relied upon by the pleader -
for the respondent’s claim – could clearly be gathered
therefrom -







Held –as excipients unable to show any vagueness amounting to
embarrassment and as there was no embarrassment on the pleadings
there can also be no prejudice if the excipients would be required to
plead to the claim formulation in this instance -







Held – that excipients failed to discharge their onus -
exception dismissed with costs -





























































IN
THE HIGH COURT OF NAMIBIA CASE NO:(P) I 3268/2010







In the matter between:
















TRUSTCO CAPITAL (PTY) LTD



PLAINTIFF/RESPONDENT







and













ATLANTA
CINEMA CC


JOSEPH
JOHANNES BECKER


PETRUS
LODEWIKUS LUDWIG


DAMON
IAN VAN DER MERWE










1STDEFENDANT/EXCIPIENT



2ND DEFENDANT/EXCIPIENT



3RD DEFENDANT/EXCIPIENT


4TH
DEFENDANT/EXCIPIENT







CORAM: GEIER, J






Heard: 12 June 2012



Delivered: 12July2012



_______________________________________________________________






JUDGMENT:






GEIER,J: [1] By way of a series of exceptions - the
defendant’s - to thisaction - have managed to place a number of
obstacles in the plaintiff’s way to reclaim repayment of a loan
of N$12 000 000.00.







[2] The action herein was instituted during September 2010. By June
2012 the defendants had not yet pleaded.







[3] It should also be mentioned that the plaintiff - in response to
an earlier exception – did for the first time amend its claim
particulars during March 2011.







[4] During August 2011 the defendants raised a further exception
thereto in response to which the plaintiff amended its particulars of
claim further during November 2011.







[5] The defendants nevertheless continued to contend that this
further amendment did also not address their cause for complaint and
hence this exception was taken further and now forms the subject
matter of this hearing.







THE HISTORY OF THE PLEADINGS







[6] The offending pleadings were initially styled as follows :







The plaintiff’s claim against the
first defendant is for specific performance, and is based on a loan
agreement entered into and between the plaintiff and the first
defendant. The written memorandum containing the terms and conditions
of the loan agreement, also makes provision for surety by the second,
third and fourth defendants for the loan to the first defendant.







The written agreement is annexure POC1 to the plaintiff’s
particulars of claim.”







[7] Upon amendment the plaintiff the relied upon particulars of claim
now read :







On 18th
May 2009 and at Windhoek, the plaintiff (as
“lender”) entered into a written loan agreement with the
first defendant (as “borrower”), the material terms
whereof were the following –







7.1 the plaintiff lend(t) and advanced to the first defendant the
amount of N$12 million (twelve million Namibian dollar);







7.2 the loan would be repayable over a period of 240 (two hundred
and fourty) months in equal instalments, the first of which would be
made on 30 September 2009 and subsequently on the 30
th
day of each month hereafter, until the full amount of capital and
interest would be paid;







[8] In respect of the advancement of the monies, the plaintiff
pleaded:







6A. On 24 March 2009, the plaintiff
advanced to the first defendant the monies, being the amount of N$12
million as per the aforesaid loan agreement in that it paid on behalf
of the first defendant, to Trustco Group International (Pty) Ltd, the
amount of N$12 million, by virtue of the provisions of clauses 4.7
and 4.8 of the written loan agreement, which provides as follows:







it is specifically recorded that the
loan amount is to be utilized to purchase the Itumba Restaurant and
other moveable assets and that the loan amount may not be used
otherwise. If the Borrower fails to make any payment on due date or
is otherwise in breach of this Agreement or at any stage alienates
the business or transfers its membership, to any person without the
prior written consent of the Lender or falls behind with any payment
the whole amount then will become payable.”



[9] The plaintiff then pleaded that the first defendant failed to
comply with the obligations in terms of the loan, in that it failed
to make repayments for the months May 2010, June 2010 and July 2010.







[10] Ultimately the plaintiff claimed payment of the amount of
N$13,636,862-52 together with other ancillary relief from the
defendants, jointly and severally.







[11] To these amended particulars of claim, and during August 2011,
the defendant raised a further exception on the basis that same were
vague, embarrassing and hence excipiable.







[12] Pursuant to such exception the plaintiff amended its particulars
of claim further during November 2011. The impact of this amendment
is not relevant for purposes of this decision.







[13] As the excipient however took the view that also this further
amendment did not remedy all the causes of the complaint raised by
the defendants in their exception,in that it was now contended that
certain grounds of the objection, raised by the excipients, remained
which would further sustain the exception.







THE EXCIPIENTS’ ARGUMENT







[14] The crux of the exception that remainedwas :








  1. thatthe relied upon annexure “POC1”
    was -ex facie the pleadings - and the document itself - only
    concluded on 18 May 2009;









  1. clause A of the agreement annexed as “POC1
    expressly provides that ‘the lender hereby lends to the
    borrower the sum of N$ 12 million’;









  1. the amended paragraph 6A of the amended particulars of claim
    dated 22 November 2011 do not address the ... central concern …
    in that the allegation remains that on 24 March – and before
    the loan agreement was concluded – the plaintiff advanced to
    the defendant “the monies” being the amount of N$ 12
    million, “as per the aforesaid loan agreement”;









  1. it was thus contended on behalf of the excipients that the
    plaintiff’s current pleading even as amended read with the
    annexure thereto failed to state -








Whether the monies referred to in
paragraph 6A of the amended particulars of claim dated 22 November
2011were advanced by the plaintiff in terms of the written agreement
relied upon in paragraph 6 of the plaintiff’s amended
particulars of claim dated 22 November 2011 and if so, on what basis
(if any) the said amount was “advanced” prior to the date
of conclusion of POC1 (moreover considering the wording of clause A
thereof);







If not, on what basis (if any), the plaintiff allegedly advanced
to the first defendant the amount of N$ 12 million. No basis is
disclosed in the pleadings for the “advance” of the
aforementioned amount during March 2009, and the plaintiff’s
most recent (futile) attempt to cure the grounds of concern raised in
the August exception have simply lent credence to the February
exception. In so far as the plaintiff relies on an agreement
regarding the alleged advance (which, in any event, does not appear
from the pleadings as they presently stand), the plaintiff has
materially failed to comply with the peremptory provisions of Rule
18(6).”







[15] It was on these grounds contended that in the result the
excipients are and remain prejudiced by the vague and embarrassing
nature of the plaintiff’s pleadings, ‘same meriting
the raising and pursuance of the present exception’
.







THE APPLICABLE LAW







[16] In support of this conclusion the court was referred to ‘Beck’s
Theory and Principles of Pleadings in Civil Actions’
where
the following is stated:







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 all.”







and further –







In 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.







In 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
particularity.







The object of all pleadings is that a succinct statement of the
grounds upon which a claim is made or resisted shall be set forth
shortly and concisely, and where such statement is vague, it is
either meaningless or capable of more than one meaning. It is
embarrassing in that it cannot be gathered from it what ground is
relied on by the pleader.







[W]here a statement is vague, it is either
meaningless, or capable of more than one meaning. It is embarrassing
in that it cannot be gathered there from what ground is relied on,
and therefore it is also something which is insufficient in law to
support in whole or in part the action or defence.”
1







[17] The court was also referred to ‘Erasmus Superior Court
Practice’
from which the following relevant extracts were
quoted:







An exception that a pleading is vague
and embarrassing is not directed to a particular paragraph within a
cause of action: it goes to whole cause of action, which must be
demonstrated to be vague and embarrassing. The exception is intended
to cover the case where, although a cause of action appears in the
summons there is some defect or incompleteness in the manner in which
it is set out, which result in embarrassment to the defendant. An
exception that a pleading is vague and embarrassing strikes at the
formulation of the cause and action and not its legal validity.







An exception that a pleading is vague and
embarrassing will not be allowed unless the excipient will be
seriously prejudiced if the offending allegations will not be
expunged... The test applicable in deciding anexception based on
vagueness and embarrassment arising out of lack of particularity can
be summed up as follows
2:








  1. 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.









  1. 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.








  1. 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.








  1. The ultimate test as to whether or not the exception should be
    upheld is whether the excipient is prejudiced.








  1. The onus is on the excipient to show both vagueness amounting to
    embarrassment and embarrassment amounting to prejudice.








  1. The excipient must make out his or her case for embarrassment by
    reference to the pleadings alone.








  1. 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.”
    3








[18] It was thus in conclusion submitted that the plaintiff’s
pleadings read with annexure “POC1” even after amendment:








  1. remained inherently defective;









  1. taint the Plaintiff’s whole cause of action;








  1. contain inconsistent, ambiguous and vague allegation;








  1. are vague and embarrassing;








  1. seriously prejudice defendants (also detracting from their rights
    in terms of Article 12 of the Namibian Constitution)inter alia
    inthat it remains unclear as to the case which the Defendants are
    required to plead to and meet and as to the full and proper basis on
    which the plaintiff purports to pursue its actions against the
    defendants’; and








  1. therefore areexcipiable.”








THE RESPONDENT’S ARGUMENT







[19] Respondent’s counsel submitted that the grounds of the
exception, in their analysis, seemed to be that:







a) That the
written loan agreement (annexure POC1) was concluded on 18 May 2009;







b) that POC1 provides that the lender “hereby lends”
to the borrower the amount of N$12 million;







c) that the plaintiff pleads that the monies were advanced on 24
March 2009 – thus before the written agreement was concluded.







The written agreement, in clause 11.3 thereof, provides:







This Agreement supersedes the Agreement
entered into and between Trustco Capital (Pty) Ltd and Joseph Becker,
PetrusLodewikus Ludwig and Damon Ian Van der Merwe acting on behalf
of a Close Corporation to be formed and signed on 24 March 2009.”







It is clear that the sequence of events herein were that –







a) on 24 March 2009, the plaintiff advanced an amount of N$12
million;







b) on 18 May 2009, the parties agreed that the monies so advanced
were advanced as a loan to the first defendant and that the second,
third and fourth defendants are sureties in respect of the loan.







The aforesaid might be an unusual sequence of
events, but there is nothing about it which can be said to be
“meaningless”
or vague and/or embarrassing.
An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not its legal validity.
4







The test applicable in deciding an exception based on vagueness
and embarrassment arising out of lack of particularity, is whether
the reader is unable to distill from the statements/ averments in the
pleading a clear and single meaning.
5







[20] It was submitted further that the question to be answered was
whether the Defendants could actually sensibly plead to the amended
Particulars of Claim. The following possible ways in which the
Defendants might formulate a plea were suggested by way of example :







that the monies were advanced, but that
it was not a loan;







that the monies were not advanced / that they are not sureties;







that the loan agreement was a simulated agreement;







that the substratum of the agreement has since fallen away;







that there was misrepresentation when the agreement was entered



into…”.







[21] It was thus submitted that the
plaintiff’s case was clear that it was a plain claim for
specific performance in respect of monies lend and advanced, and on
which ... the first defendant had defaulted in its repayment - this
default lies in the fact that the first defendant stopped to paying
back the loan after having made only some repayments - the second,
third and fourth defendants as sureties, are simply jointly and
severally liable with the first defendant –that it was
therefore more than abundantly clear what case the excipients needed
to meet and that there was thus no merit in the defendant’s
exception and that it therefore stood to be dismissed with costs’.







[22] For purposes of deciding this exception I
will now turn to - and apply - the step by step approach to deciding
exceptions - based on vagueness and embarrassment, arising out of
lack of particularity –as conveniently summarised in
Erasmus
Superior Practice
6
- as set out
above.







DO THE PLEADINGS LACK PARTICULARITY TO AN EXTENT
AMOUNTING TO VAGUENESS







[23] In this regard it must firstly be kept in
mind thata statement is vague if is either meaningless or capable of
more than one meaning ie.the reader must be unable to distil from the
statement a clear, single meaning. In this regard the requirements of
Sub-Rule 18(4) of the Rules of High Court would be of application.
7







[24] Secondly it is also clear from the pleadings
that the respondent relies on an agreement. In this regard the
requirements of Sub- Rule(6)
8
of Rule 18 of the High Court would – as a
minimum requirement –also come into play.







[25] It appears immediately that the entire agreement relied upon by
respondent was annexed to the complained of pleading. It thus
appeared further that the agreement relied upon was written, that it
was entered into at Windhoek and that it states by whom it was
concluded. The requirements set by Rule 18(6) were therefore
substantially complied with.







[26] It appears also from the claim formulation that the material
facts, upon which the pleader relied – are - in addition to
pleading and annexing the contract –and the terms relied upon -
:








  1. that the money - being N$ 12 000 000.00 - was advanced to first
    excipient on 24 March 2009; ie. that respondent complied with its
    obligations in terms of the agreement relied upon already on that
    date;









  1. that the respondent became entitled to demand immediate repayment of
    all amounts owing in terms of the loan in the event of the first
    excipient failing to comply with any terms of the loan agreement;









  1. that first excipient failed to comply with its obligations in terms
    of the loan agreement in that it failed to pay the instalments for
    May, June and July 2010;








  1. that repayment of all due amounts– being N$ 13 636,862.52 -
    was demanded;









  1. that second, third and fourth excipients - who bound themselves -
    jointly and severally - as sureties and co-principal debtors - in
    favour of the respondent - in respect of the first excipient’s
    liability arising from the loan agreement relied upon - in such
    premises– became liable - jointly and severally - with first
    excipient – for repayment of all due amounts – being N$
    13 636,862.52 - to respondent.








[27] This seems to be a clear and concise statement of the material
facts relied upon by the pleader of the respondent’s claim as
required by Rule 18(4).







[28] It also cannot be said that such statement is meaningless or
capable of more than one meaning.







[29] In my view a reader is able to distil from
the claim formulation that the claim instituted by respondent against
the excipients relates to the enforcement of the terms of a written
loan agreement – entered into between the parties – at
Windhoek - due to the non-compliance with its terms by the other
party, the excipients. That to me seems to be the clear and single
meaning which must be assigned to the claim particulars relied upon,
which therefore disclose an intelligible cause of action.
9







IS THERE ANY EMBARRASSMENT







[30] The high- watermark of the exception arises from the unusual
facet of this case in that – in this instance – moneys
were apparently advanced before the loan agreement was concluded.







[31] If there is any vagueness created by this – which I doubt
- the court is then obliged to undertake a quantitative analysis of
such embarrassment as the excipient can show his cause to him or her
by the vagueness complained of.







[32] I have already found that the offending claim particulars are
not vague, in the sense that they are meaningless or because more
than one meaning can be ascribed to them. They are also not
embarrassing in that it can – quite clearly - be gathered -
from them - what grounds are relied on by the pleader. The grounds
are clear –







“… I have loaned you moneys - and
you - the defendant are in breach of our agreement – in terms
of which you now have to repay me … “. Does it matter in
such scenario when the moneys were advanced? Surely not!
10







[33] Thus even if the first question would be answered in the
excipients favour - they must fail on the second leg - ie.on the
quantitative analysis of the embarrassment - and in terms of which no
real embarrassment can be shown by them.







IS THERE PREJUDICE







[34] Can there be prejudice to the excipients if they would be
compelled to plead to the pleading in the form to which they object?







[35] The onus was always on the excipients to show both vagueness
amounting to embarrassment and embarrassment amounting to prejudice.







[36] The excipients had to make out their case for embarrassment with
reference to the pleadings alone.







[37] I have already found that they were unable to show any vagueness
amounting to embarrassment. As there is thus no embarrassmenton the
pleadings there can also be no prejudice if the excipients would be
required to plead to a straight forward claim formulation.







[38] The excipients have thus failed to discharge their onus.It
follows that the exception cannot be upheld.







COSTS







[39] Both parties sought a costs order, which follows the result,
such costs to include the costs of two instructed- and one
instructing counsel.







[40] While I have no quarrel with awarding a costs order that will
follow the result I fail to understand – save for the factor of
the claim amount - on which other basis such costs should include the
costs of two instructed- and one instructing counsel? The nature of
the subject matter of this exception was not complex, or one which
required the special forensic skills of senior counsel. In my view
any practising legal practitioner – should have been able to
argue this matter. Accordingly I decline to exercise my discretion in
this regard.







[41] In the result the exception is dismissed with costs. The
excipients are directed to file their further pleadings within 15
days of this order.


























_____________________


GEIER,
J














































ON BEHALF OF THE APPLICANT: Adv. R Heathcote, SC



Adv. H Schneider



Instructed by: Van der Merwe-Greef Inc.










ON BEHALF OF THE RESPONDENT :Adv. N Graves, SC



Adv. D Obbes



Instructed by:LorentzAngula Inc.



















1At
paragraph 8.1 page 132 ff and the authorities referred to there –
see also the judgment by Parker J in
Classic
Engines cc v Ngihikofa
reported
at
http://www.saflii.org/na/cases/NAHC/2011/229.html
at para [5]




2At
p B1 -154 (Service 37,2011)




3See
Erasmus Superior Court Practice at pages B1-153 to B1-154 A
(service 37-11)




4Trope
v South African Reserve Bank
1993 (3) SA 264 (A) at 268F




5Quinlan
v MacGregor
1960 (4) SA 383 (D) at 393 E-H




6At
p B1 -154 (service 37/2011) to pB1-154A (Service 35/2010)




7Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim … with
sufficient particularity to enable the opposite party to reply
thereto’.




8A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral, where and by whom it was concluded,
and if the contract is written a true copy thereof or the part
relied on in the pleadings shall be annexed to the pleading’.




9See
also:Keeley v Heller 1904 TS 101 at 103 and Factory
Investments (Pty) Ltd v Record Industries Ltd
1957 (2) SA 306
(T) at p310 B - C





10Without
deciding this issue I take into account here also that the parties
‘freedom to contract’ maybe limited in certain instances
by the operation of limiting rules which may flow from
non-statutory- or statutory law - (see generally’ The
Principles of the Law of Contract’, 6th Ed by Prof
AJ Kerr at p130) –that counsel for the Excipients did not
point out that any such limitations would apply in this instance
where the claim relates to a so-called ‘loan for consumption’
(see for instance’ Wille’s Principles of South African
Law’ - 9th Ed - at p948 – 950) and in respect
of which all the essential allegations to be made in claim
particulars have been pleaded – ie. a) the loan agreement; b)
that money was advanced in terms of the agreement; and c) that the
loan is repayable, (see for instance’ Amler’s Precedents
of Pleadings’ – 7th Ed – by LTC Harms)