Alexia Kobusch and Others v Wendy Whitehead

The first and second appellants entered into a racehorse training agreement with the respondent on 18 March 2021, whereby the respondent would train horses leased by the first and second appellants from the third appellant (a close corporation of which they were members). The racing agreement was cancelled by the first and second appellants on 21 February 2022, and they reclaimed monies paid. Summons was issued and served on the respondent on 25 April 2022 for damages arising from breach of contract, delictual breach of duty of care, defamation, and restitutionary damages. The respondent served notice of intention to defend on 5 May 2022. A plea was due by 2 June 2022 but was not delivered. On 3 June 2022, the appellants delivered a notice of bar requiring delivery of a pleading within 5 days (by 10 June 2022). Instead of complying, on 9 June 2022, the respondent delivered a notice under rule 23(1)(a) and rule 23(2) complaining that the particulars of claim lacked necessary averments, were vague and embarrassing, and were vexatious. On 23 June 2022, the appellants delivered a notice of irregular step. On 13 July 2022, the respondent delivered an exception.

• Whether a notice under rule 23(1)(a) served after a notice of bar was a valid response to the notice of bar
• Whether a notice under rule 23(1)(a) constitutes a 'pleading' for the purposes of rule 26
• Whether the respondent was barred from filing a true exception (on grounds of lack of averments necessary to sustain a cause of action) when she had not filed such exception within the time specified
• Whether the exception had substantive merit in alleging that lessees of horses had no locus standi to sue on a training agreement concerning those horses

The appeal was upheld with costs. The order of the high court was set aside and substituted with an order dismissing the exception with costs.

A notice under rule 23(1)(a) of the Uniform Rules of Court is required only where a party intends to except on grounds that a pleading is vague and embarrassing. No such notice is required for a 'true exception' based on lack of averments necessary to sustain a cause of action. Where a notice of bar has been served requiring delivery of a pleading, a rule 23(1)(a) notice may constitute a sufficient response to the bar only in respect of a vague and embarrassing complaint (as that is the required next step under the rules), but it does not preserve a true exception, which must be filed as a pleading within the time specified by the bar. If a true exception is not filed within the specified time, the party is barred and must seek to lift the bar before the exception can be entertained. A lessee has locus standi to sue on agreements concerning leased property as the lessee is entitled to possession and control of the leased item.

The Court expressed the view that rules of court must be understood in a practical way to advance the process of litigation and not become an obstacle course without purpose. This purposive approach informed the Court's interpretation that where the next required step is a notice (as rule 23(1) requires for vague and embarrassing complaints), that notice should be taken to be a pleading for purposes of rule 26, otherwise a litigant would have to apply to lift the bar simply to file the very notice that the rules required. The Court also noted that the high court's order granting leave to appeal to this Court, alternatively to the full court, was irregular, as the high court must decide the specific court to which leave is granted. The Court commented that costs follow the result and a successful party is entitled to costs unless exceptional circumstances justify a departure from this principle, with the discretion in awarding costs to be exercised judicially with due consideration of all relevant circumstances.

This judgment clarifies important aspects of South African civil procedure relating to the interplay between notices of bar, rule 23(1) exceptions, and the distinction between different types of exceptions. It establishes that a rule 23(1)(a) notice (requiring removal of cause of complaint) is mandatory only for complaints that pleadings are vague and embarrassing, not for 'true exceptions' alleging lack of averments to sustain a cause of action. The case emphasizes a practical and purposive interpretation of the Uniform Rules of Court to advance litigation rather than create obstacles. It also clarifies that a rule 23(1)(a) notice can constitute a 'pleading' for purposes of satisfying a notice of bar, but only in respect of vague and embarrassing complaints. The judgment reinforces the principle that costs follow the result absent exceptional circumstances, and that merely abiding by the decision of an appeal court does not absolve a party from costs where that party has not abandoned the judgment being appealed.