Exception
An exception is an interlocutory application procedure. Interlocutory applications are dealt with in the chapter ‘Applications’.
Exception can only be taken to a pleading. The purpose is to obtain a speedy and inexpensive decision on a question of law of whether the pleading contains the necessary allegations of fact which would sustain a cause of action or defence. This avoids the leading of unnecessary evidence. As such it will not be granted unless it disposes of a separate cause of action or defence and all the relief claimed pursuant to it.
No facts may be adduced by either party and the defect objected against must appear ex facie the pleading itself.
Mostly exceptions are the result of sloppy pleadings but in sometimes it is set up to test a question of law when the facts of the case are not in dispute.
Exception can only be taken in two circumstances, i.e. where the pleading –
- lacks the necessary averments to sustain a cause of action or a defence; or
- is vague and embarrassing.
If the exception is based on the contention that the pleading ‘does not contain the necessary averments to sustain a cause of action or defence’ the opposing party delivers an exception. If the offending party does not rectify the defect by an amendment to the pleading, it is then argued in the ordinary course as if it were an opposed motion.
If the exception is taken on the basis that the pleading ‘is vague and embarrassing’ the opposing party serves a notice on the offending party to cure the defective pleading by removing the cause of the vagueness or embarrassment. If the recipient of the notice fails to remove the cause of the complaint, an exception must be delivered. The exception is then set down and it is then argued in the ordinary course as if it were an opposed motion.
The onus of showing that a pleading is excipiable rests on the excipient and further pleadings are suspended until the court has ruled on the exception.
Both types of exception must contain a prayer for an order that the exception be upheld and that the claim or defence be dismissed or struck out. If not, the exception would be vague and embarrassing and also an irregular proceeding and liable to be set aside. The court will only grant the application if the innocent party can show that he will suffer prejudice if the exception is not granted. As such he must allege and prove the prejudice he will suffer.
A decision upholding an exception is final and appealable. However, a decision refusing an exception, other than exception to jurisdiction of the court, is not appealable and not binding on the trial court.
For more go to Notes on action (trial) proceedings
