Raising an Exception in the Magistrates Court and The Potential Consequence of the Vexatious Litigation thereof.

In Trustee, Burmilla Trust v President of the Republic of South Africa,[1] an exception was described as a legal objection to the counter parties’ pleading.

The main object of an exception was discussed in Brocsand (Pty) Ltd v Tip Trans Resources [2]  and was said to be; a legal tool that enables the excipient to dispose of a matter or a portion thereof in an “expeditious” manner, or to protect a counter party against embarrassment which is so serious as to merit the cost of an exception. In essence, an exception can be best described as an effective legal tool for basically screening out actions that have no legal merits.

Rule 19 of the Magistrates Court Rules prescribes the various grounds for raising an exception and it reads as follows:

“(1)    (a) Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defense, the opposing party who intends to take an exception shall, within the period allowed for filing any subsequent pleading, deliver an exception thereto..”

1. “is vague and embarrassing”

2. “lacks the averment necessary to sustain a cause of action”

An exception concluded upon the enmity that the particulars of claim, plea or declaration excepted to, avers no cause of action, or that it lacks averments necessary to sustain a defense, is subsequently designed to obtain a decision on a point of law which will dispose of the matter or a portion thereof, and avoid the leading of unnecessary evidence at the trial. Therefore, if an exception is not premised on this outlook it should be dismissed.

A party wishing to take an exception needs to follow specific procedure as prescribed in Rule 19, depending on whether the complaint is that the pleading lacks the averments necessary to sustain a cause of action or a defense, or that it is vague and embarrassing, or both.

Where a party intends to take an exception that a pleading lacks the averments necessary to sustain a cause of action or a defense, the party must deliver an exception within the period allowed for filling a subsequent pleading.

In the event it is submitted that the pleading is vague and embarrassing, the party must within the period allowed for filling any subsequent pleading, by notice afford the counter party an opportunity to remove the cause of complaint within 15 days.

In the extreme circumstance that an exception to a particulars of claim or declaration is delivered after the time allowed for filling a subsequent pleading, or even after the delivery of a notice of bar in terms of Rule 21B, authority dictates that an excipient would not be out of time until the expiration of the time specified in the notice of bar.[3]

Therefore, in this extreme instance; a Plaintiff delivering a particular of claim or declaration can not object to the exception on the grounds that it was delivered out of time only if such exception is delivered outside the prescribed period allowed for the delivery of a plea, but before the lapsing of the period provided for in the notice of bar.[4]

Unfortunately, litigants have been increasingly engaging in the vexatious delivery of exceptions in order delay legal proceedings with the prospects of buying time for their clients. This can be seen being done in matters done where there is outstanding debts. The exception process is not intended to be used as a delaying tactic to avoid the Plaintiff’s action from being legally ventilated

There are potential and most likely imminent consequences of raising a frivolous and/or vexatious exception, such as debonis propriis or a cost order against the excipient.

In JV Gold Bridge (Pty) Ltd and Others v Kamonyaka Property Developments (Pty) Ltd [5] the Defendants raised an exception to have a debt due and payable to the Plaintiff in the main action set aside on the basis that the debt had prescribed in terms of Section 11 of the Prescription Act.[6].

The Plaintiff argued that raising prescription by way of an exception is an inappropriate procedure and such should have been raised by way of a plea or special plea. The Plaintiff further argued that its claim for the debt did not prescribe because Section 15(1) of the Prescription Act provides that the running of prescription is interrupted by the servicing of debt.

The evidence before the court was that the first Defendant’s last payment was less than three years prior to the issuing of the summons and the last interest payment received from the first Defendant was less than three years prior to issuing of summons. The second Defendant’s repaid an amount of R2 000 000.00 in respect of the capital loan amount to the Plaintiff and this was also in less than three years prior to the issuing of summons. Furthermore, the third Defendant unconditionally acknowledged in writing that first Defendant is indebted to the Plaintiff and this was also in less than the three years prior to the issuing of summons.

It is trite that in terms of Section 14(2) of the Prescription Act that the running of prescription is interrupted as contemplated in terms of Section 14(1) of the Act. However, in this matter the Defendant’s vexatiously raised a plea of prescription and erroneously so, by way of an exception.

The court ruled that the raising of a prescription by way of an exception is not the appropriate process and it should be raised by special plea. The exception was dismissed with costs.

In Mogale City Local Municipality and Another v Gelita SA (Pty) Ltd [7] the excipients raised several exceptions against the respondent’s particulars of claim. The dispute was about payments made by the Plaintiff to the first Defendant. In essence, the Plaintiff claimed payment of various amounts under five claims including interests and costs.

Amongst the exceptions raised by the Defendants; one of them being of prescription. The Defendant argued that the Plaintiff’s alleged claim had prescribed in terms of Section 11 of the Prescription Act, and accordingly should be dismissed.

Evidence before the court was that there was a written contract was concluded between the parties in April 2000 and subsequently amended on 22 June 2006 and 11 August 2006. The Plaintiff’s summons was delivered on 15 April 2021.

Court rules that an exception is a complaint concerning the manner in which a pleading is drafted, not its legal validity.

Court further stated that the defense of prescription should be raised by way of special plea and went further to state that; even if it appears ex facie the Plaintiff’s particulars of claim that the claim has prescribed. The Plaintiff may wish to replicate a defense to the claim of prescription, on the basis of an interruption in terms of Section 14 of the Prescription Act.   

Court found that the ground for “prescription exceptions” cannot be upheld due to a lack of merit.

Court order that the exception be dismissed and the Defendant to bear the cost of the application.

In conclusion, exceptions play a vital role Civil litigation, ensuring a fair and efficient judicial litigation system by promoting clarity, early and alternative dispute resolutions of legal disputes, streamlining the the litigation procedure and ensuring legal validity. Exception should not be used by litigants to delay the legal procedure and ultimately delaying the counter parties from being heard by the court.

The above exposition is not to be considered as legal advice.  In all instances, contact a legal practitioner to consider and review the apposite legal position.