Alexia Kobusch and Others v Wendy Whitehead

The first and second appellants entered into a racehorse training agreement with the respondent, a professional racehorse trainer, in March 2021. The horses were leased from the third appellant, a close corporation owned by the first and second appellants. The agreement was cancelled in February 2022 and monies paid were reclaimed. The appellants instituted action for contractual damages, delictual damages, defamation, and restitutionary relief arising from alleged breach of the training agreement. The respondent noted an intention to defend but failed to deliver a plea or exception within the prescribed time. After a notice of bar was served, the respondent delivered a rule 23(1)(a) notice alleging that the particulars of claim were vague and embarrassing and lacked averments to sustain a cause of action. The High Court set aside the notice as irregular but nevertheless upheld the exception on the basis that the appellants lacked locus standi. The appellants appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The High Court order was set aside and substituted with an order dismissing the exception with costs.

The judgment clarifies the procedural distinction between a rule 23(1)(a) notice and an exception, and confirms that a true exception constitutes a pleading for purposes of a notice of bar. It reinforces the principle that barred litigants may not raise substantive exceptions without first applying to uplift the bar, and provides guidance on locus standi of lessees in contractual disputes.