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FORM A

FILING SHEET FOR EASTERN CAPE JUDGMENT

ECJ NO: 023/2004

PARTIES : THOMAS REGINALD CHOWLES HOSKING & 3 OTHERS

THOMAS REGINALD CHOWLES HOSKING & 2 OTHERS

WILLIAM HENRY VOYSEY & 2 OTHERS

PLAINTIFFS

and

THE ATTORNEYS FIDELITY FUND BOARD OF CONTROL

DEFENDANT

REFERENCE NUMBERS -

Registrar: 17/2003

18/2003

19/2003

DATE HEARD: 10 June 2004

DATE DELIVERED: 2 September 2004

JUDGE(S): CHETTY J

LEGAL REPRESENTATIVES:

Appearances:

• for the Plaintiffs: PJ de Bruyn SC/BJ Pienaar

for the Excipients: RG Buchanan SC/O Ronaasen /N Gqamana

Instructing Attorneys:

• Plaintiffs: Burman Katz

• Excipients: Kaplan Blumberg

CASE INFORMATION -

• Nature of proceedings: Trial

• Topic: Exception and application in terms of Rule 30 of the Uniform Rules of Court

• Keywords: Replication vague and embarrassing - principles reiterated - attack on constitutionality of ss 47(1)(g), (4), (5) and 47A of the Attorneys Act 53 of 1979

IN THE HIGH COURT OF SOUTH AFRICA

(SOUTH EASTERN CAPE LOCAL DIVISION)

In the matter between: Case No: 17/2003

Date Delivered:

THOMAS REGINALD CHOWLES HOSKING

(In his capacity as Trustee of Paragon Asset

Management Trust Western Cape)(IT 1695/99) First Plaintiff

ROBERT LAWRENCE REYNOLDS

(In his capacity as Trustee of Paragon Asset

Management Trust Western Cape)(IT 1695/99) Second Plaintiff

MICHAEL GEORGE RANDELL

(In his capacity as Trustee of Paragon Asset

Management Trust Western Cape)(IT 1695/99) Third Plaintiff

NICOLAAS JACOBUS KRUGER

(In his capacity as Trustee of Paragon Asset

Management Trust Western Cape)(IT 1695/99) Fourth Plaintiff

and

THE ATTORNEYS FIDELITY FUND BOARD OF

CONTROL Defendant

AND

Case No: 18/03

THOMAS REGINALD CHOWLES HOSKING

(In his capacity as Trustee of Paragon Asset

Management Trust) (IT 431/97) First Plaintiff

RUDOLPH ERIC THOMAS HOSKING

((In his capacity as Trustee of Paragon Asset

Management Trust) (IT 431/97) Second Plaintiff

PAUL MICHAEL HOSKING

(In his capacity as Trustee of Paragon Asset

Management Trust) (IT 431/97) Third Plaintiff

and

THE ATTORNEYS FIDELITY FUND BOARD

OF CONTROL Defendant

AND

Case NO: 19/03

WILLIAM HENRY VOYSEY

(In his capacity as Trustee of the William Voysey

Trading Trust (IT 729/96) and trading as

COMMERCIAL INVESTMENT TRUSTS) First Plaintiff

COLLEEN VOYSEY

(In her capacity as Trustee of the William Voysey

Trading Trust (IT 729/96) and trading as

COMMERCIAL INVESTMENT TRUSTS) Second Plaintiff

FREDERICK STEMMETT

(In his capacity as Trustee of the William Voysey

Trading Trust (IT 729/96) and trading as

COMMERCIAL INVESTMENT TRUSTS) Third Plaintiff

and

THE ATTORNEYS FIDELITY FUND BOARD

OF CONTROL Defendant

Summary - Exception and application in terms of Rule 30 of the Uniform Rules of Court - replication vague and embarrassing - principles reiterated - attack on constitutionality of ss 47(1)(g), (4), (5) and 47A Attorneys Act 53 of 1979 - enrichment

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JUDGMENT

_________________________________________________________________

CHETTY, J

[1] This judgment concerns three actions instituted by various plaintiffs against the defendant. In each the claim is substantial viz R12 929 936,20, R85 115 464, 00 and R25 140 529,00 respectively. The cause of action is identical and so too the pleas and replications filed. The defendant delivered an exception to each of the replications contending that substantial portions thereanent were vague and embarrassing in the respects to which I will revert in due course. The plaintiffs were afforded the opportunity to remove the causes of the complaint. They declined to do so. In the alternative the defendant applied to have the replication set aside as an irregular proceeding in terms of Rule 30(1) of the Uniform Rules of Court on the ground that it did not comply with the provisions of Rule 18(4). The issues being identical in each instance and the actions, as it were, consolidated, a composite judgment has accordingly been prepared and deemed to have been made in respect of all three matters.

[2] There is, nor could there be, any objection to the procedure adopted by the defendant. The filing of a notice of exception which contains as an alternative an application to set pleadings aside under the provisions of Rule 30 is entirely permissible. See Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing en Andere 2001 (2) SA 790 (T) at 796G, Jowell v Bramwell-Jones and others 1998 (1) SA 836 (W) at 904 F - H.

[3] The plaintiffs’ claim against the defendant as formulated in the particulars of claim is premised on the provisions of s 26 of the Attorneys Act 53 of 1979 which provides: -

“26 Purpose of fund -

Subject to the provisions of this Act, the fund shall be applied for the purpose of reimbursing persons who may suffer pecuniary loss as a result of -

(a) theft committed by a practising practitioner, his candidate attorney or his employee, of any money or other property entrusted by or on behalf of such persons to him or to his candidate attorney or employee in the course of his practice or while acting as executor or administrator in the estate of a deceased person or as a trustee in an insolvent estate or in any other similar capacity; and

(b) theft of money or other property entrusted to an employee referred to in paragraph (cA) of the definition of “estate agent” in section 1 of the Estate Agents Act, 1976 (Act 112 of 1976), or an attorney or candidate attorney referred to in paragraph (d) of the said definition, and which has been committed by any such person under the circumstances contemplated in those paragraphs, respectively, and in the course of the performance -

(i) in the case of such an employee, of an act contemplated in the said paragraph (cA); and

(ii) in the case of such an attorney or candidate attorney, of an act contemplated, subject to the proviso thereof, in the said paragraph (d).”

[4] The factual background relied upon by the plaintiffs in seeking to hold the defendant liable emerges from the particulars of claim. The relevant paragraphs, reproduced in its entirety read as follows: -

“8. At all material times hereto Van Schalkwyk Attorneys (“Van Schalkwyks”) was a firm, alternatively a partnership, of attorneys of which one Aron Jobert van Schalkwyk and one Charl du Mont at relevant times were partners, and holders of valid Fidelity Fund certificates, with its principal place of business within the area of jurisdiction of the Honourable Court at 4^th Floor, Castle House, 24 Evatt Street, Central, Port Elizabeth.

9. Between the period during about December 1999 to June 2000 and at Port Elizabeth and within the area of jurisdiction of this Honourable Court, Paragon Trust Western Cape entrusted monies to Van Schalkwyks by paying the said monies into Van Schalkwyks’ trust account in the course of its practice.

10. The total of the monies so entrusted amounts to R12 929 936,20, proof of which, in the form of acknowledgements of debt issued by Van Schalkwyks, have previously been supplied to the defendant under separate cover.

11. The monies were so entrusted to Van Schalkwyks in terms of oral agreements reached at the relevant times at Port Elizabeth by the first plaintiff and Mr van Schalkwyk on behalf of Van Schalkwyks, and thereafter Mr du Mont on behalf of Van Schalkwyks, the exact dates of which the first plaintiff is unsure of.

12. 12.1 The following were express, alternatively tacit, alternatively implied terms of the said agreements:

12.1.1 The monies so entrusted to be loaned by Van Schalkwyks on behalf of Paragon Trust Western Cape to Mr Halgryn, the main trustee of the Halgryn Family Trust or his nominee, to give effect to the loan agreement between the first plaintiff and Mr Halgryn.

12.1.2 The monies so loaned to Mr Halgryn or his nominee were to be utilised, and only so, for factoring of claims, viz. the discounting of estate agents’ commission and the discounting of the net proceeds on sales payable by sellers of properties, whereupon Mr Halgryn or his nominee would either repay the loans, plus interest, on due date, or reloan the money.

12.2 Messrs van Schalkwyk and du Mont advised the first plaintiff in respect of the terms and conditions of the loan agreement.

12.3 The first plaintiff had not been introduced to Mr Halgryn by Messrs van Schalkwyk and du Mont.

13. The following were further express, alternatively tacit, alternatively implied terms of the said agreements:

13.1 Van Schalkwyks were to administer, monitor and police the scheme.

13.2 Van Schalkwyks were to only advance monies to Mr Halgryn or his nominee for the purpose of discounting, and only if all safeguards were in place viz. inter alia:

13.2.1 That all suspensive conditions in the deed of sale had been complied with.

13.2.2 That the deed of sale was valid in every respect.

13.3.3 That the transferring attorney was in possession of a guarantee for payment of the full purchase price, and out of such guarantee there was a cession of so much thereof as was necessary to pay the amounts so advanced.

13.3.4 That there was a valid letter of undertaking, factoring agreement and cession agreement in each instance.

13.3 Van Schalkwyks had to ensure that the monies so loaned were only used for discounting, and only so loaned and advanced after the attorneys had ensured that all the necessary documents and safeguards and legal requirements were in place and that there were sufficient matching discounting deals.

13.4 Van Schalkwyks were to administer, monitor and police all transactions presented to Mr Halgryn in the pursuance of his discounting activities, and administer, monitor and police the repayments, and had to ensure that all the monies were repaid.

13.5 Further and at all material times Van Schalkwyks assured the first plaintiff that all necessary requirements, policing, monitoring and administering were being complied with.

14 After payment of the monies into Van Schalkwyk’s trust account, and on dates and places to the plaintiffs unknown, one or more of the attorneys of Van Schalkwyks, and/or employees of Van Schalkwyks acting within the course and scope of their employment, unlawfully and without the authority of the plaintiffs or Paragon Trust Western Cape and in breach of the aforesaid agreements, instructions and mandate, misappropriated the said monies and thereby committed theft, alternatively theft by misappropriation, alternatively theft by conversion, of the said monies inter alia in that:

14.1 The monies were utilised for other purposes than discounting and as agreed.

14.2 The monies were utilised to inter alia save Mr Halgryn’s ailing businesses and companies, and also to purchase shares.

14.3 The various agreements and instructions referred to above were not complied with e.g. monies were advanced to Mr Halgryn or his nominee/s without the necessary safeguards in place and without there being sufficient matching discounting deals.

14.4 Van Schalkwyks did not perform the necessary administering, policing and monitoring of the scheme.

14.5 Van Schalkwyks did not ensure the repayment of the monies, which repayments had to occur at Port Elizabeth.

15. The monies so stolen and misappropriated amount to R12 929 936,20 and Paragon Trust Western Cape has, therefore, suffered pecuniary loss in the amount of R12 929 936,20.

16. In terms of the provisions of section 26 of the Attorneys Act the Fund, represented by the defendant as aforestated, is liable to reimburse Paragon Trust Western Cape for its pecuniary loss suffered.

17. The plaintiffs and Paragon Trust Western Cape have complied with all necessary requirements in terms of the Attorneys Act, and inter alia the provisions of ss 48 and 49 thereof.”

[5] The defendant’s defence to the claim as formulated was succinctly stated. It denied that the monies were entrusted to Van Schalkwyks and effected in the course of its practice and alleged that the attorneys were instructed to invest the money in a specified investment alternatively in an investment of the attorney’s choice and that accordingly it was exempted from liability in terms of s 47(1)(g) read with s 47A and 47(4) of the Act.

[6] The plea elicited the plaintiffs’ replication. It is central to the issues raised and reproduction in its entirety is unavoidable. It reads: -

“1. Ad paras 8.1, 8.2 and 8.3 read with para 11 thereof

1.1 The plaintiffs specifically plead that the exceptions provided for in sections 47(5)(b) and (c) of the Attorneys Act 53 of 1979 (“the Attorneys Act”) apply in the present matter.

1.2 Alternatively the plaintiffs plead that section 47(1)(g), read with sections 47A and 47(4) of the Attorneys Act, are unconstitutional and/or invalid in that inter alia:

1.2.1 the public and in particular people affected by the said sections, including the plaintiffs and the lenders of the money, were not involved and/or were not sufficiently involved inter alia in the preparation, passing and enactment (“the legislative process”) of the said sections (“the amendments”), as inter alia required by sections 57(1)(b), 59(1)(a), 70(1)(b) and 72(1)(a) of the Constitution of the Republic of South Africa Act 108 of 1996 (“the Constitution”), and also the National Assembly Rules, the Rules of the National Council of Provinces and the Joint Rules of Parliament; and/or

1.2.2 it is denied that the public and people referred to hereinbefore were inter alia given prior notice and/or sufficient prior notice of the said amendments, and/or invited to make representations and/or comment thereon as required by the said Rules referred to hereinbefore, and the defendant is put to the proof thereof; and/or

1.2.3 it is denied that the correct Parliamentary procedures were followed in preparing, passing and enacting the said amendments as required inter alia by Chapter 4 of the Constitution and the said Rules referred to herebefore, and the defendant is put to the proof thereof; and/or

1.2.4 it is denied that the public and people referred to hereinabove were given a hearing and/or a proper hearing, or consulted in regard to the said amendments, and the defendant is put to the proof thereof. In such regard it is pleaded that the public and the said people had a legitimate expectation to be heard and/or consulted given inter alia the fact that the monies previously entrusted to attorneys under similar circumstances were covered by the Fidelity Fund; and/or

1.2.5 the said amendments are void for vagueness and uncertainty, in particular given the fact that the amendments impact on the plaintiffs’, lenders’ and publics right to property, as guaranteed by section 25 of the Constitution.

And in so doing the said persons’ right to administrative justice, as guaranteed by section 33 of the Constitution, and right to property, as guaranteed by section 25 of the Constitution, were threatened and/or infringed.

1.3 Further alternatively the plaintiffs plead that the defendant should not be allowed to rely on the provisions of section 47(1)(g), read with sections 47A and 47(4) of the Attorneys Act (“the amendments”) in that:

1.3.1 the provisions of section 47(7), (8) and (9) of the Attorneys Act were not complied with in the present instance, as required; and/or

1.3.2 the defendant and/or the Law Society failed to give the public and the abovementioned persons sufficient and timeous notice of the amendments.

2. Ad paras 8.4, 8.5 and 8.6 read with para 11 thereof:

2.1 2.1.1 The allegations herein are denied as if specifically traversed.

2.1.2 Further and in amplification of the said denial, reference is made inter alia to the provisions of section 47 of the Attorneys Act and Rule 20 of the Rules of the Law Society of the Cape of Good Hope.

2.2 Alternatively and in the event of the Honourable Court holding that the provisions of section 1, 11 and 91 of the Banks Act 94 of 1990 (“the Banks Act”) apply, it is pleaded that:

2.2.1 The defendant and/or Law Society at all material times allowed and/or acquiesced in and/or encouraged either expressly, tacitly or by implication the said transactions and/or similar transactions and/or investment transactions and should accordingly not be allowed to dispute the legality thereof;

2.3 2.3.1 Further alternatively at all material times the plaintiffs and the abovementioned persons were unaware of the alleged illegality of the said transactions;

2.3.2 The defendant has been unjustly enriched vis-à-vis the plaintiffs and the lenders in an amount of R12 929 936,20 as set out in the plaintiffs particulars of claim, which amount would have been paid by the defendant to the plaintiffs’ and the lenders’, but for the illegality of the said transactions;

2.3.3. The alleged statutory contraventions are of a technical nature and do not harm the public;

2.3.4 The retention and non-payment of the said sum of money to the plaintiffs and the lenders would be contrary to the interests of justice and public policy and would amount to a grave injustice to the plaintiffs and the

lenders;

2.3.5 In the premises the defendant should be ordered to pay the said sum of R12 929 936,20 to the plaintiffs.”

[7] The grounds upon which the exception and the application in terms of Rule 30 are brought are multifaceted but have been divided roughly into four broad categories. In the first three it is contended that the replication is vague and embarrassing and in the fourth, the additional ground is advanced (in the alternative) that it does not constitute a reply or defence to the corresponding allegations in the plea. Mr De Bruyn submitted that on his calculation the defendant raised some 51 exceptions or objections and urged that each be separately dealt with and considered. It is unnecessary to do so. Pragmatism dictates otherwise. It must be stressed that exception is taken to the replication on the basis that it is vague and embarrassing. It unequivocally assails the manner in which the replication is formulated and is not directed at the plaintiffs’ cause of action. The starting point must therefore be Rule 18(4) of the Uniform Rules of Court which provides that: -

“(4) Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto.”

[8] The legal principles relevant hereto are trite but require restatement. Extrapolated from the authorities, it amounts to the following - the question whether a pleading is vague and embarrassing on the ground of lack of particularity depends upon whether it complies with Rule 18(4) - Herbstein and Van Winsen, The Civil Practice of the Supreme Court of South Africa, 4^th ed, at 490 - 491; Trope v S A Reserve Bank and Another and 2 other cases 1992 (3) SA 208 (T) at 210F - 211B. It is not necessary that an exception should dispose of a portion of a case, for exception may be taken as a protection against embarrassment - Herbstein and Van Winsen (supra) at 490; Wilson v SAR & H 1981 (3) SA 1016 (C) at 1019B- C. An exception that a pleading is vague and embarrassing ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged. Herbstein and Van Winsen (supra) at 491; Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 298A - D. A court is obliged to first consider whether the pleading lacks particularity to an extent amounting to vagueness (in the sense of rendering it meaningless or capable of more than one meaning). Thereafter there must be a qualitative analysis of such embarrassment. Only when the embarrassment is so serious as to cause prejudice to the excipient will the exception be allowed. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice. Nel and others NNO v McArthur and others 2003 (4) SA 142 (T) at 148H -J. A pleading will not cease to be excipiable merely because it is possible to draft an unexcipiable response to it. Levitan v Newhaven Holiday Enterprises CC (supra) at 298G - H; Trope v SA Reserve Bank (supra) at 210G - 211E; Jowell v Bramwell-Jones and others (supra) at 913F; Nel and others NNO v McArthur and others (supra) at 147B. Prejudice to a litigant faced with an embarrassing pleading must ultimately lie in an inability properly to prepare to meet his opponent’s case. Levitan v Newhaven Holiday Enterprises CC (supra) at 298I - J. A pleading is vague and embarrassing if it is uncertain what the pleading means; even though it has an ascertainable meaning, the allegations contain no relevant or material content. Quinlan v MacGregor 1960 (4) SA 383 (D) at 390; Nasionale Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing (supra) at 797I - 798A. The necessity to plead material facts in a pleading does not have its origin in Rule 18(4). It is fundamental to the judicial process that the material facts which underlie an allegation in a pleading must be established. A pleading which simply propounds the pleader’s own conclusions and opinions instead of the underlying material facts, is defective. It would not disclose a cause of action or defence and would be vague and embarrassing - Buchner and Another v Johannesburg Consolidated Investment Co Ltd 1995 (1) SA 215 (T) at 216I - J; Nasionale Aartapple Koöperasie Bpk v Price Waterhouse Coopers Ing (supra) at 804F - G. The principle that a court is obliged to take the pleadings as they stand for the purposes of determining whether an exception must be upheld is limited in operation to allegations of fact and cannot be extended to instances and conclusions not warranted by the allegations of fact, Herbstein and Van Winsen (supra) at 492; Natal Fresh Produce Grower’s Association and Others v Agroserve (Pty) Ltd and Others 1990 (4) SA 749 (N) at 755A - B. A party relying on an implied statutory provision is obliged to plead it clearly. It must plead in terms that it relies on a statutory provision that can be implied from the provisions of a relevant statute and it must plead the contents of the implied provision. If it does not do so, the pleading is vague and embarrassing - Arun Property Development (Edms) Bpk v Stad Kaapstad 2003 (6) SA 82 (C) at 92D - E. A replication may introduce new allegations where these are called for by the plea, but the plaintiffs may not in their replication introduce a fresh claim or a new cause of action. If new allegations made in a replication have the effect of widening the scope of the action as set out in the particulars of claim, the replication is excipiable on the ground of variance between it and the particulars of claim - Herbstein and Van Winsen (supra) at 504-5.

[9] It is against this background that the exceptions and application to strike out has to be determined. In order to do so it is necessary to have regard to the grounds relied upon by the defendant for the relief foreshadowed in the notice in terms of Rules 23 and 30. The necessity for doing so arises by virtue of the provisions of Rule 23(1) and 30(2). In essence the defendant excepted to the replication on the grounds that - material portions were vague and embarrassing; it contained certain allegations which do not constitute a reply or defence to the corresponding allegation on the plea; certain portions constitute a departure from the cause of action as pleaded which not only had the effect of widening the scope of the action but was moreover at variance with it and it was bad in law. On the self same grounds the defendant contended that the replication constituted an irregular proceeding for want of compliance with the provisions of Rule 18(4).

[10] In argument, Mr de Bruyn, who, together with Mr Pienaar appeared for the plaintiffs, submitted that on his calculation, the plaintiff had raised some 51 objections/exceptions and invited me to deal with each individually. This proposal does not commend itself to me for there is in truth a central theme to the defendant’s stance which obviates the need to deal with the matter on the basis proposed.

Ad Paragraph 1 of the Replication

[11] The first objection raised is that the words “and/or” make it unclear whether the alleged invalidity of the impugned sections arise from their alleged unconstitutionality or whether the imploration for invalidity constitutes a separate attack thereon. In seeking to meet the argument Mr de Bruyn has referred to a number of cases where such usage has been sanctioned. Whilst it is true that the words may be read disjunctively as well as conjunctively this does not assist the plaintiffs. One is left to speculate.

[12] Paragraph 1.2.1 refers to “lenders of money” as a class of persons distinct from the plaintiffs. The observation must immediately be made that ex facie the particulars of claim the plaintiffs are party to the action and not “the lenders of the money”. These contradictory averments commence the confusion. The lenders of money are not identified and their involvement or lack thereof in the legislative process is entirely irrelevant. This initial confusion is exacerbated by the continuous reference to “lenders of money”, “the public”, etc throughout the replication.

[13] The fact that the particulars of claim contain a reference to acknowledgements of debt issued by Van Schalkwyks does not assist the plaintiffs. The fact remains that the lenders of money are not identified, rendering it impossible to determine the extent of their alleged non involvement or insufficient involvement in the legislative process.

[14] The further allegation that the plaintiffs were not involved in the legislative process amounts to a conclusion of fact and/or law. No factual or legal basis is pleaded as to how this conclusion is arrived at nor the manner and extent to which there was non-compliance with the relevant constitutional imperatives. No factual or legal basis is alleged as to why the alleged non-compliance with certain sections of the Constitution render the provisions of s 47(1)(g) invalid or unconstitutional. Furthermore the word usage “inter alia” implies the existence of additional grounds which the plaintiffs chose not to reveal. Reference to the Rules of the National Assembly, the National Council of Provinces and the Joint Rules of Parliament compounds the problematic pleading. The replication asserts that the public and people affected by the amendment which by some process of reasoning include “the plaintiffs and the lenders of money” were not involved or sufficiently involved in the legislative process. The basis for the assertion would appear to be various sections of the Constitution and Rules pertaining to Parliament. This amounts to a conclusion of law, not a statement of fact. What has been pleaded is a legal result. It is insufficient to plead a conclusion of law without pleading the material facts giving rise to it. Radebe and others v Eastern Transvaal Development Board 1988 (2) S A 785 (A) at 792J - 793G; Trope and others v South African Reserve Bank 1993 (3) S A 264 (A) at 273A.

[15] Paragraph 1.2.2 commences with the words “ it is denied” and then proceeds to state “that the public and people referred to hereinbefore were inter alia (not) given notice and/or insufficient prior notice of the said amendments, and/or invited to make representations and/or comment thereon as required by the said Rules referred to hereinbefore and the defendant is put to the proof thereof;” it then proceeds in similar vein until concluding that the right to administrative justice was in effect denied. The formulation of the replication invited the exception. It is vague in the extreme and an acute embarrassment to the defendant. In the first instance s 33 of the Constitution refers to “administrative action” and not “justice”. Secondly the enactment of s 47(1)(g) and the other sections sought to be impugned constitutes a legislative and not an administrative act - Fedsure Life Assurance v Greater Johannesburg TMC [1998] ZACC 17; 1999 (1) SA 374 (CC) at para [45], [46]. In addition not only are no facts pleaded but the sparse allegations amount to conclusions. Paragraph 1.2 is not only contradictory but patently vague and embarrassing. The grounds of exception in relation to paragraph 1.2 and it subparagraphs must therefore be sustained.

Paragraph 1.3

[16] Mr de Bruyn submitted that the plaintiffs do not rely on estoppel but on acquiescence. The argument is disingenuous and no doubt raised by reason of the failure to plead the elements of an estoppel for that is, in truth, what it is. No legal or factual basis is proffered for the alleged non-compliance with the provisions of s 47(7), (8), and (9). The embarrassment to the defendant is furthermore exacerbated by the statement that “the defendant and the Law Society failed to give the public and the abovementioned persons sufficient and timeous notice of the amendments.” On what basis the defendant should have been required to give notice of a statutory amendment which is a legislative Act is not pleaded. In truth, the replication propounds the plaintiffs’ own conclusions and opinions instead of the material facts. Similarly, the grounds of exception must be sustained.

Ad sub paragraph 2 of the replication.

[17] The objection is that paragraph 2.1.2 is vague and embarrassing in that: -

“ 9.1 in amplification of a denial that the provisions of section 1, 11 and 91 of the Banks Act, 94 of 1990 apply in the instant matter, the Plaintiffs refer to Section 47 of the Attorneys Act and Rule 20 of the Rules of the Law Society of the Cape of Good Hope;

9.2 no attempt is made to draw a link between the alleged non-applicability of the said provisions of the Banks Act and Rule 20 of the Rule of the said Law Society;

9.3 the said Law Society is a legal entity separate and distinct from the Defendant, and is in any event not a party to this action;

9.4 the use of the phrase “inter alia” implies that the Plaintiffs intend relying on further grounds, which should have been pleaded.”

[18] To meet the objection Mr de Bruyn submitted that the defendant and the Law Society are “interwoven” and hence there was no substance to the complaint. The argument is simplistic and overlooks the fact that the Law Society is not a party to the action. In sub-paragraph 2.1.2 the plaintiffs refer to s 47 of the Act and rule 20 of the Law Society rules in amplification of a denial that s 1 of the Banks Act 94 of 1990 apply. Again no factual or legal basis is pleaded to draw a link between the alleged non-applicability of the provisions of the Banks Act and the provisions of s 47 of the Act and Rule 20 of the Law Society Rules. In paragraph 2.2 the plaintiffs rely on an estoppel the essentials of which are not pleaded. Paragraph 2.3 does not constitute a reply to the corresponding allegation in the plea and refers to persons not party to the action. It moreover relies on a general enrichment action. Not only is there no such action in our law but the paragraph is conspicuous by its dearth of material facts supporting an enrichment action. It is moreover awash with conclusions and opinions without any underlying factual or legal bases. The basis for reliance in enrichment is said to reside in the particulars of claim. One searches in vain. In the absence of material facts to support an enrichment action reliance on a general enrichment action cannot avail the plaintiffs. The sub paragraph is intrinsically vague and embarrassing.

[19] In my judgment the various paragraphs of the replication to which I have referred are so vague so as to constitute an embarrassment amounting to prejudice. In addition they are irregular as envisaged in Rule 30. It is an impossible task to strike out selective paragraphs in the replication. The offensive portions are not capable of severance. Accordingly the replication must be set aside in its entirety.

Costs

[20] Although the matter is of some complexity the engagement of three counsel is not warranted.

The Order

[21] The following order is made in case numbers: 17/03, 18/03 and 19/03:

1. The exception is upheld and the replication set aside in its entirety.

2. The replication constitutes an irregular step in terms of Rule 30(1) and is set aside in its entirety

3. The plaintiffs are to pay the defendant’s costs which in each instance includes the costs of two counsel.

4. The plaintiffs are given leave to amend their pleadings if so advised, within 30 days of judgment.

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D. CHETTY

JUDGE OF THE HIGH COURT

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