IN THE HIGH COURT OF SWAZILAND
Civil Case No. 1421/2017
In the matter between
THOMAS INVESTMENTS CORPORATION PLAINTIFF
SIGMA LIFTS & ESCALATORS (PTY) LIMITED DEFENDANT
Neutral citation: Thomas Investments Corporation (Pty) Limited v Sigma Lifts & Escalators (Pty) Limited (1421/2017)  SZHC 90 (03 May 2018)
Coram: MAMBA J
Heard: 06 April 2018
Delivered: 03 May 2018
 Civil law and procedure – pleadings – Plaintiff’s claim based on breach of contract. Plaintiff claiming for monies paid to Defendant and to a third party who was engaged consequent upon the breach of contract by the defendant.
 Civil law and procedure – exception raised in terms of rule 23 of the Rules of court that Plaintiff’s particulars of claim are vague and embarrassing.
 Civil law and procedure – exception that particulars of claim are vague and embarrassing – purpose of such exception is to dispose of the case in whole or in part and is not directed at any particular paragraph but on the formulation of the whole cause of action as pleaded. Such exception will only be granted if the excipient would be prejudiced if the complaint is not removed or corrected.
 Civil law and procedure – plaintiff alleging what it paid to a third party and attaching a quotation for a lesser amount. Computation of actual sum paid is a matter for evidence. No discord or discrepancy in such pleading. Exception refused.
 The original combined summons in this case was issued by the Registrar of this court in or about October or November 2017, following an order issued by this court on 13 October 2017 permitting the Plaintiff to sue the Defendant by edictal citation. Subsequent to the service of the summons on the Defendant, the Defendant’s attorneys filed their notice of intention to defend the action. This was done on 03 November 2017.
 By notice dated 28 November 2017, the Defendant, through its attorneys, filed a Notice in terms of Rule 18 of the Rules of court complaining that the Plaintiff’s particulars of claim were vague and embarrassing. There were two complaints raised by the Defendant; namely:
(a) ‘The – particulars of claim are contradictory, vague and embarrassing in that in paragraph 9 the Plaintiff suggests that the claim arises out of delict [whilst] in paragraph 12 the Plaintiff alleges that the claim arises out of a breach of a contract.
(b) The particulars of claim are vague and embarrassing in that they have not been set out with sufficient particularity to enable the Defendant to [assess] the quantum thereof, in particular;
2.2.1 Annexure T4 (which is relied on) does not set out the breakdown of the sum of E458, 758-98, which supplier was paid and the work done; and
2.2.2 The quotation which accompanies annexure T4 talks about the total of E171, 448-00, not E458, 58-98.’
The said notice demanded that the Plaintiff must remove the two causes of the complaint aforesaid within a period of 14 days, failing which the Defendant would approach the court for an order compelling such removal of the complaints, by way of an exception in terms of Rule 23 of the Rules of this Court.
 In response to the above complaint, the Defendant filed an amended combined summons. In its new particulars of claim, the Plaintiff states, inter alia that:
‘8. In breach of the agreement between the parties, the Defendant has failed to maintain and keep the equipment in good working order and or has failed to provide the highest quality service in line with international industry standards and to keep the equipment functioning at optimum level.
9. The aforesaid breach was material.
10. The Plaintiff has had to resort to hiring a third party to effect repairs on the equipment despite the fact that the Defendant was contracted and paid to effect such repairs.
11. As a consequence of the breach, the Plaintiff has suffered damages equivalent to the sums paid by the Plaintiff to the Defendant for the entire duration of the agreement between the parties which is the sum of E223, 011-19 plus the sum of E223, 747-79 being monies that the Plaintiff has had to pay to the third party for repairs to the equipment.
Find attached hereto correspondence from M.A. Dlamini Consulting Engineers (Pty) Ltd marked as annexure T4:
12. The aforesaid damages flow naturally and directly from a breach of the nature of the one in question. The Plaintiff duly gave the Defendant notice of the breach of the agreement and notice of cancellation.’
In conclusion, the Plaintiff prays for judgment in its favour in the sum of E458, 758-98 and other ancillary relief.
 By filing its amended summons and recasting its particulars of claim, the Plaintiff tacitly submits that it has removed the two causes of complaint by the Defendant. The Defendant, however, complains that the second cause of complaint has not been addressed or removed or cured by the said amendment. The Defendant accordingly abandoned the first complaint.
 On 16 January 2018, the Defendant filed its exception to the Plaintiff’s amended particulars of claim. The relevant exception is couched in the following terms:
‘(a) The Plaintiff alleges in paragraph 11 that it suffered damages equivalent to the sum paid by the [plaintiff] for the entire duration of the agreement between the parties which is the sum of E223, 011-19 plus the sum of E235, 747-79 being the monies that Plaintiff has had to pay to the third party for the repairs to the equipment.
(b) The particulars of the claim are vague and embarrassing in that the Plaintiff has not set out [its] damages with sufficient particularity to enable the Defendant to [assess] the quantum thereof.
(c) In amplification of the aforesaid, the Plaintiff’s claim for E235, 747-79 is not referenced with sufficient particulars to allow the Defendant to understand;
3.1 How the sum of E235, 747-79 has been calculated; and
3.2 Annexure T4 also stipulates an amount of E171, 448-00, not the sum of E235, 747-79; and
3.3 There is no indication whether the sum of E171, 448-00 was paid or it is an estimate in view of the letter of the 1st June 2017 from Swazi Lifts which was a quotation.’
 Rule 23 (1) of the Rules of this Court provides:
‘23 (1) Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of rule 6 (14):
Provided that where a party intends to take an exception that a pleading is vague and embarrassing he shall, within the period allowed under this sub-rule, by notice afford his opponent an opportunity of removing the cause of the complaint within fourteen days:
Provided further that the party excepting shall within seven days from the date on which a reply to such notice is received or from the date on which such reply is due deliver his exception.’
 It is trite that an exception that a pleading is vague and embarrassing is not taken or aimed at a particular paragraph in the particulars claim or declaration. It is aimed or directed at the whole or complete cause of action or pleading. The logic, I think, is not difficult to find for this proposition. In considering an exception, the court looks at the pleading as a whole or unit and this is done on the assumption or premise that the allegations therein contained are correct or no facts extraneous thereto may be considered or admitted. The alleged vagueness or embarrassment must be centred on the overall formulation of the action rather than the legal substance or validity of such pleading. The exception will generally not be allowed unless the objector will be prejudiced if the cause of the complaint is not removed or corrected. (vide Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C), Jowell v Bramwell – Jones & Others 1998 (1) SA 836 (W), First National Bank of Southern Africa Limited v Perry N.O & Others 2001 (3) SA 960 (SCA), and Trope v South African Reserve Bank & Another & Two other cases 1992 (3) SA 208 (T). The excipient bears the burden to establish both vagueness or embarrassment and prejudice.
 In considering an exception, the court must, I think, also bear in mind that pleadings should not, as a rule contain evidence but rather allegations which if proven or supported by evidence, would establish a case for the pleader.
 In the instant case, the Plaintiff’s case is that the Defendant breached the agreement that was entered into by and between the parties. The agreement was to maintain service and repair the Plaintiff’s lifts or escalators at the Plaintiff’s premises situate in Manzini. Consequent upon the said breach, the Plaintiff has or was forced to hire or contract a third party to do or render the very same service it had contracted the Defendant to provide and it then cancelled the agreement between the parties herein. The cancellation was, however, done after the Defendant had been paid a sum of E223, 011-19 by the Plaintiff. “The Plaintiff has had to pay” a sum of E235, 747-79 to the third party. These are the allegations and the figures or amounts alleged or stated in paragraph 11 of the Plaintiff’s particulars of claim. The two amounts, added together, give or equal the total amount claimed i.e. E458, 758-98. The question as to how these two individual amounts are made up is, in my judgment a matter of evidence which need not be pleaded herein.
 Whilst it is true that in paragraph 11 of the Plaintiff’s particulars of claim there is a reference to annexure T4, which is a quotation from Swazi Lifts and the sum therein stated is E171, 448-00, there is nowhere in the Plaintiff’s particulars of claim where it is pleaded that that is the the amount that was paid to the third party. The Plaintiff has specifically and unambiguously pleaded that it paid or “has had to pay a sum of E235, 747-79 to the third party. To suggest that the pleading is in the circumstances vague and embarrassing is a quibble or pettifoggery. It is not prejudicial to the Defendant; or the Defendant has failed to show that it would cause the Defendant prejudice if not removed or corrected.
 The court also notes, in parenthesis herein that T4 whilst stipulating a charge of E171, 448-00 also proposes or offers that a monthly maintenance of E2 595-00 per unit per month could be entered into. There is no indication on the papers that this proposal was agreed to between the Plaintiff and the third party. If it was agreed upon, it may account for the difference between the sum quoted and that which was allegedly actually paid by the Plaintiff. This is again, a matter of evidence. The alleged inconsistency, discrepancy and or discord between paragraph 11 and T4 are not real but rather contrived or imagined by the Defendant. There are no contradictions or inconsistencies here.
 In Absa Bank Ltd v Boksburg Transitional Local Council (Government of the Republic of South Africa, Third Party 1997 (2) Sa 415 (W), the court had this to say:
‘…if a plaintiff’s pleading is seriously vague, it is wrong to blatantly say that a defendant is able to plead, even if it is then only a general denial. Once it is not such a flagrant fundamentally defective situation, the omission of detail will still either create vagueness to the extent that the other party does not adequately know what the Plaintiff’s case is or, alternatively, the case will fall outside that deficient category. But how a specific pleading is to be classified is then an ad hoc decision involving a matter of degree. The decision must necessarily be influenced, inter alia, by the nature of allegations, their content, the nature of the claim, the relationship between the parties. It is essentially a factual question. It is on that level that I conclude that despite the probable right to request further particulars (under Rule 21) (not necessarily) a right to obtain the information as asked because the defendant may be entitled to answer that it will have to establish the fact by way of inference from proclamations, press reports, silence, and other considerations), it seems to me that the third party notice as it stands at the moment. It can respond adequately even if a hypothetical outsider happens to be relatively disadvantaged. It may be that, as the exception claims, the third party is unable to establish ‘precisely’ what case it is called upon to meet. But it knows ‘adequately’ what the plaintiff’s case is. It can understand the defendant’s case and is able to take instructions from the client and to record a meaningful response to it.’
I endorse these remarks in this case. The Plaintiff’s particulars of claim, read as a whole, are not vague and embarrassing as alleged by the Defendant. The exception thus stands to fail and is hereby dismissed.
 I have already referred to the Plaintiff’s particulars of claim and in particular the contents of paragraph 11 thereof as read together with annexure T4 thereto. The Defendant’s objection or exception is basically that the amount allegedly paid to the third party is different from that appearing on T4. It was argued by the Defendant that T4 calls itself a quotation and not a receipt for payment. I have found that a holistic approach to the particulars of claim admits of no embarrassment or vagueness. There is, however, no doubt in my view that the particulars of claim – particularly paragraph 11, is inelegantly pleaded. T4 was perhaps not necessary to shore up or as an elaboration of that paragraph. For these reasons, I shall order that costs of this exception be costs in the cause.
FOR THE EXCIPIENT (DEFEDANT): MR. K. MOTSA
FOR THE RESPONDENT (PLAINTIFF): MR. TSAMBOKHULU