Exceptions in litigation proceedings

Exceptions in litigation proceedings
16 Aug 2021

Litigation is an acrimonious procedure, whereby parties either try to finalise a matter as soon as possible, or they cause undue delays by dragging out the proceedings. If a summons or a pleading has an inherent defect, a party may raise an exception, the objective being to shorten the legal proceedings on the basis that it would be unfair or prejudicial to continue because of the defect.

Rule 23 of the Uniform Rules of Court makes provision for a litigant to raise an exception in the High Court. There are two grounds of exception that can be raised and it is imperative to be able to distinguish between the two.

The first exception is where a party states that the summons or pleading lacks the necessary averments to sustain an action (or defence, as the case may be). The second exception is that the pleading is vague or embarrassing. So, what exactly do these exceptions mean?

Lacks averments necessary to sustain a cause of action

A party raising this exception is essentially saying that there are insufficient facts contained in the summons or pleading to sustain a cause of action. The purpose of the particulars of claim or pleading must be clear in that it alerts the court to all the issues upon which it places its reliance, thus a certain degree of precision is required. If there is more than one claim in the pleading, each claim must disclose a cause of action. If the material facts thereof are common to each claim so pleaded, the material fact must be repeated, alternatively there must be express reference thereto.

Vague and embarrassing

Rule 18(4) of the Uniform Rules of Court states that “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.” It follows that one’s summons or pleading must be clear in order for the other party to respond. Should it be unclear, the other party may raise this exception.

However, in dealing with exceptions raised, the court will look at whether the lack of particularity amounts to it being vague in the context of the exception. Further, the court must assess whether the party excepting to the pleading will be seriously prejudiced should it uphold the exception or not. When assessing an exception for vague and embarrassing, the court must look at the pleading as a whole, rather than a particular paragraph therein. The exception raised must therefore speak to the pleading as the whole cause of action. If the court finds that the party excepting will not suffer serious prejudice should it not uphold the exception, the exception will be dismissed.

Conclusion

It is imperative that all documents/pleadings that are filed during the litigious process are clear and concise. It should be of such particularity that the court will be able to adjudicate the matter on the papers alone, under the presumption that all of the material facts or allegations are contained therein.

Contact an expert at SchoemanLaw for any of your litigation needs today.

See also:

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Gabriella Keeble
Gabriella Keeble

Gabriella Keeble completed her LLB at the University of the Western Cape. Gabriella joined a boutique commercial and insolvency firm in February 2019 as a Candidate Attorney. She gained extensive... Read more about Gabriella Keeble

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