3
THE HIGH COURT OF SWAZILAND
HELD AT MBABANE Civil Case No. 1752/2006
In the matter between
DAN LANGWENYA
vs
NEDBANK SWAZILAND LIMITED MARTIN AKKER N.O.
Plaintiff
1st Defendant 2nd Defendant
Coram
Banda, CJ
For the Plaintiff
For the 1st Defendant
For the 2nd Defendant
JUDGMENT
the plaintiffs particulars of claim lack averments necessary to support a cause of action.
[2] The general principle is that if a declaration or particulars of claim do not disclose a cause of action, a party ought to raise it before trial otherwise he will not get the costs even if he succeeds at the trial. Therefore, where a pleading as a whole or a vital portion thereof is objected to, the proper method of objection is an exception. Where on the other hand a portion of a pleading is objected to and that portion is not vital to the whole cause of action or defence the proper procedure is by way of motion to strike out. An exception is a legal objection which admits the correctness of the facts averred but urges that the truth notwithstanding, those facts do not, in law, establish any sufficient case either of claim or defence.
[3] It would appear that the basis of the plaintiffs claim against the first defendant is founded on the averments in paragraph 4 of the particulars of claim which state as follows -
"On or about the month of November 2004, the second defendant acting on behalf of the first defendant caused to be attached a certain motor vehicle an AMC bus operating the route between Manzini and Boyane on a daily basis."
And then paragraphs 10 and 15 state as follows:-
"In the circumstances, the defendants are jointly and severally liable, the one paying the other to be absolved."
[4] Mr. Moses Simelane who appeared for the plaintiff did not appear to object to the exception which has been taken in this case. He conceded that the particulars of claim were not the best one could find. He submitted, however, that the gist of the particulars do capture the essence of the claim against the defendants. He argued that the first defendant could not be separated from the second defendant as to use his own words "One is the catalyst of the other" and that they remain bound together. He has argued that if the exception is upheld he has prayed to court that the proper order to make is to allow the plaintiff to amend with costs. Mr. Motsa has contended on the other hand, that if there is no cause of action disclosed there would be nothing to amend. He has submitted that the plaintiffs averments have failed to disclose a cause of action against the first defendant.
[5] The issue of liability of an execution creditor is now settled law. Where the execution creditor in due form sues out a writ in satisfaction of a judgment in his favour but gives the Deputy Sheriff no instructions for, nor takes part in, attachment of the property and the Deputy Sheriff in the execution of his duty, as a servant of the Court, attaches a third party goods instead of those of the debtor, the creditor is not liable in damages: vide HERBSTEIN AND VON WISSEL, THE CIVIL PRACTICE OF THE SUPREME COURT OF SOUTH AFRICA 4™ EDITION PAGES 800 - 8002.
[6] Mr. Motsa has submitted that the plaintiff has not alleged any delict against the first defendant nor do the particulars allege that the first defendant gave instructions or that the first defendant took part in the attachment of the plaintiffs property. Mr. Motsa has further submitted that there is no allegation that the first defendant was guilty of any breach of duty, common law or statutory and has, therefore, contended that in the absence of these allegations there can be no foundation for a cause of action against the first defendant.
[7] The test that is applied in deciding whether a cause of action has been disclosed is to consider whether every interpretation of the pleading and documents upon which it is based, discloses a cause of action. And where, as Mr. Simelane has contended, the basis of the cause of action can be inferred from the particulars of claim, the test at the exception stage is whether the trial Court, could reasonably imply the term alleged. Mr. Motsa has contended that the plaintiff has to allege, in his particulars of claim, averments which would support a cause of action.
[8] I have carefully considered the authorities which were cited to me together with the oral submissions which counsel made to me. I can find no basis, in this case, on which any claim against the first defendant would be founded. No delict has been alleged against the first defendant. All he did was to leave the matter in the hands of an officer of Court. In the absence of any direction by the execution creditor in regard to the attachment, the Deputy Sheriff acted in fulfilment of a statutory duty and not as a servant of the execution creditor; GOLDMAN v PEACOCK BROS. 1916 OPD 138. The position is different when the execution creditor actively instructs the sheriff to attach the goods belonging to a third party. The sheriff, in such a case, would thus be acting as the execution creditor's agent and the latter would be liable for the former's wrongful action.
[9] I am satisfied and I find that the plaintiffs particulars of claim do not disclose a cause of action against the first defendant nor are there facts on which a trial court could infer a cause of actionfhe exception taken must succeed. It would not be proper to make an order for amendment, as Mr. Motsa has correctly submitted, there is no cause of action which would require amendment. The order of the Court, therefore, is that the exception is upheld with
costs.
Pronounced at the High Court sitting at Mbabane this 25TH..day
of July 2007.