Jacobs V the Minister of Safety and Security (I 3772-2013) 2015 NAHCMD 27 (19 February 2015)

9

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: I 3772/2013

In the matter between:

ABISAI JACOBS PLAINTIFF

and

THE MINISTER OF SAFETY AND SECURITY FIRST DEFENDANT

THE INSPECTOR GENERAL OF THE

NAMIBIA POLICE SECOND DEFENDANT

THE PROSECUTOR-GENERAL THIRD DEFENDANT

Neutral citation: Jacobs v The Minister of Safety and Security (I 3772/2013) [2015] NAHCMD 27 (19 February 2015)

Coram: PARKER AJ

Heard: 4 February 2015

Delivered: 19 February 2015

Flynote: Practice – Pleadings – Exception – On ground that pleading vague and embarrassing – Court held that ultimate test is whether pleading complies with the general rule laid down in rule 18(4) of the repealed rules (rule 45(5) of the current rules of court) – Court held further that exception involves two-fold consideration – First, whether pleading complained of lacks particularity to the extent that it is vague, and second whether the vagueness causes embarrassment of such nature that excipient is prejudiced – Where vagueness is not established the second consideration does not arise.

Summary: Practice – Exception – On ground that pleading vague and embarrassing – Court held that ultimate test is whether pleading complies with the general rule laid down in rule 18(4) of the repealed rules (rule 45(5) of the current rules of court) – Court held further that exception involves two-fold consideration – First, whether pleading complained of lacks particularity to the extent that it is vague, and second whether the vagueness causes embarrassment of such nature that excipient is prejudiced – Where vagueness is not established the second consideration does not arise – Excipient complained that the pleading that plaintiff was detained unlawfully and wrongfully lacks particularity because it does not say for how long plaintiff was detained by the Police and for how long he was detained by order of court – Second exception relates to information about plaintiff that third defendant placed before the lower court in plaintiff’s abortive bail application – Court found that the pleading is not vague because it is not meaningless and it is not capable of having two meanings – Court found further that the pleading is clear and concise and contains sufficient particularity to enable the defendants to reply to it in term of repealed rule 18(4) – Consequently, court found that defendants have failed to show that pleading is vague – Consequently, court dismissed exception.

ORDER

(a)  The claim against the third defendant is struck out.

(b)  The defendants’ exceptions are dismissed.

(c)  There is no order as to costs against any party.

(d)  The legal practitioners must attend a case management conference at 08h30 on 5 March 2015; and if any of the legal practitioners fails to attend, the managing judge shall consider invoking rule 18(3)(b) of the rules and make an appropriate order as consequence of failure to comply with this order.

JUDGMENT

PARKER AJ:

[1] The plaintiff instituted action, as the citation of the case indicates, against the first defendant, second defendant and third defendant. But in the text of the combined summons it is indicated that the plaintiff has instituted the action against the ‘FIRST AND SECOND DEFENDANT(S)’ only in which the ‘PLAINTIFF claim the relief and on the grounds set out in the particulars annexed hereto’ (ie the Particulars of Claim).

First exception ‘and/or’ striking out:

[2] The defendants have raised exception ‘to the plaintiff’s Combined Summons on the ground that it is vague and embarrassing’. And why does the defendants so contend? It is this. According to the defendants the pleading ‘is vague and embarrassing in that the defendants are unable to see how the claims in the Particulars of Claim could be made against the THIRD DEFNEDANT who is sued jointly and severally with them when the summons makes no claim against her and/or how judgment may be given against her in default of her entry of appearance to defend or of delivery of her plea’. For this reason, the defendants contend that the claim against the third defendant is excepiable or should be struck out with costs.

Second exception:

[3] The defendants aver further that the Summons is excipiable on the basis that as respects claim 1, the particulars are lacking in ‘specificity’ with regard to ‘the period over which the plaintiff was detained by the police before he was brought to court on remand’ and ‘the period the plaintiff spent in custody after his initial court appearance’ (para 6 of the Particulars of Claim).

Third exception:

[4] The defendants avers further that the Summons is excipiable on the basis that as respects Claim 2, the particulars do not specify the precise ‘information about the plaintiff that the police gave to the third defendant, upon which the court acted’ and ‘what ground were in fact advanced by which of the defendants in opposing bail’.

[5] In Classic Engines CC vs Reinhold Hashetu Nghikofa Case No. I 887/2010 (judgment delivered on 29 July 2011) (Unreported), para 4, I accepted counsel’s submission that a party is free to frame his or her exception in any way he or she chooses but the party is bound by the terms in which it is framed and the issues which the party raises. As I did in Classic Engines CC, para 5, in the instant case, too, I respectfully distil and apply the following general principles relating to exception taken on the ground that a pleading is vague and embarrassing (see Herbstein and Van Winsen: The Civil Practice of the High Courts and the Supreme Court of Appeal of South Africa, 5th ed, pp 634-8):

‘(1) It is incumbent upon a plaintiff only to plead a complete cause of action which identifies the issues upon which he seeks to rely and on which evidence will be led, in intelligible and lucid form and which allows the defendant to plead to it.

(2) An attack on the pleading as being vague and embarrassing cannot be found on the mere averment of lack of particularity, although a lack of particularity might allow an application in terms of rule 30, which is an entirely different proceeding.

(3) 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 from it 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.

(4) The test whether a pleading is vague and embarrassing has also been stated to be whether an intelligible cause of action (or defence) can be ascertained.

(5) An exception that a pleading is vague and embarrassing may only be taken when the vagueness and embarrassment strike at the root of the cause of action or the defence.

(6) An exception that a pleading is vague and embarrassing strikes at the formulation of the cause of action (or defence) and not its legal validity.

(7) Whether a pleading is vague and embarrassing on the ground of lack of particularity depends on whether it complies with rule 28(4), which requires every pleading to contain a clear and concise statement of the material facts on which the pleader relies, with sufficient particularity to enable the opposite party to plead to it. It has been held that it is sufficient if a defendant knows ‘adequately’ what a plaintiff’s case is or ‘sufficiently’ shows the defendant the case which he is called upon to meet.’

That is the manner in which I approach the determination of the exceptions.

First exception and/or motion to strike out:

[6] As mentioned earlier, although the citation on the combined summons indicate the parties who are the defendants as the Minister of Safety and Security (fist defendant), the Inspector-General of the Namibia Police (second defendant) and the Prosecutor General (third defendant), in the text of the summons, it is indicated that the plaintiff institutes action against the first and second defendants only whereby the plaintiff claims the relief set out in the particulars of claim. It is abundantly clear, as Mr Nkiwane, counsel for the defendants, submitted, that no claim is sought against the third defendant. I, therefore, find that the pleadings in relation to the third defendant is vexatious and irrelevant within the meaning of rule 23(1) of the repealed rules (under which the instant action was instituted) for the reason that since action was instituted against all three defendants jointly as co-defendants, the defendants will be prejudiced in the conduct of their defence if the motion to strike out is not granted.

[7] It behoves me to make the following remarks which are relevant to the question of costs. I have granted the relief of ‘strike out’ solely on the basis of the process filed of record by the plaintiff and for the reasons I have given; otherwise, Mr Nkiwane, either in his written submission or oral submission, did not clearly distinguish between exception and strike out. That is not surprising. It would seem Mr Nkiwane conflated the relief of exception and the relief of strike out and yet the two are polar apart. What an applicant who seeks the granting of exception must establish in terms of rule 23(1) (of the repealed rules) is different from what an applicant who seeks striking out must establish in terms of rule 23(2).

[8] Based on these reasons, I grant the application to strike out the averments relating to the claim against the third respondent. However, for the reasons I have given, the defendants are not entitled to their costs as respects the strike out application. I now proceed to determine the second and third exceptions.

Second and third exceptions:

[9] Keeping the general principles adumbrated in para 5 and my holding in Classic Engines CC v Reinhold Hashetu Nghikofa that a party is bound by the terms in which the exception is framed and the issues which the party raises, in my mind’s eye. I proceed to consider the second and third exceptions, which are framed in this way:

Second exception:

1.  Ad Claim 1

1.1 The particulars do not disclose the period over which the plaintiff was detained by the police before he was brought to court on remand.

1.2 The particulars do not disclose the period the plaintiff spent in custody after his initial court appearance.

Specificity on 1.1 and 1.2 in this claim is necessary to enable the first two defendants on the one hand and the third defendant on the other to profer special or any other pleas to the plaintiff’s claims.

Third exception:

2.  Ad Claim 2

2.1 What, precisely, was the information about the plaintiff that the police gave to the third defendant, upon which the court acted?

2.2 What grounds were in fact advanced by which of the defendants in opposing bail?

[10] It has been said that whether a pleading is vague and embarrassing on the ground of lack of particularity depends on whether it complies with rule 18(4), which requires every pleading to contain a clear and concise statement of the material facts on which the pleader relies, with sufficient particularity, to enable the opposite party to plead to it. (Trope v SA Reserve Bank and Two Other Cases 1992 (3) SA 208 (T) at 210F-211B). In this regard it has been held that it is sufficient if a defendant knows ‘adequately’ what a plaintiff’s case is or ‘sufficiently’ shows the defendant the case which he or she is called upon to meet. (Herbstein and Van Winsen, ibid, at p 636, and the cases there cited).

[11] In the instant case I accept the submission by Ms Mainga, counsel for the plaintiff, that it is clear that the defendants know adequately what the plaintiff case is and the pleadings show the defendants sufficiently the case which they are called upon to meet. It must be remembered that in the present proceeding it is not part of the enquiry whether the plaintiff will succeed in proving the allegations in due course during the trial of the action; that is the legal validity of the cause of action. See July v Motor Vehicle Accident Fund 2010 (1) NR 368 at 373 I-J.

[12] What I have said about the second exception applies with equal force to the third exception. I do not think, as the pleading stand, it lacks particularity to an extent amounting to vagueness. Where 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.

[13] As the pleading complained of stands, I do not find that it is not meaningless; neither is it capable of more than one meaning. Furthermore, I do not find that the pleading complained of lacks particularity to the extent that it is vague. Consequently, I conclude that the defendants have failed to discharge the onus cast on them to establish vagueness. They have, therefore, failed to show that the pleading in question is excipiable.