CIVIL PRACTICE: LAW ON EXCEPTIONS AND STIKE OUT RESTATED 

CIVIL PRACTICE: LAW ON EXCEPTIONS AND STIKE OUT RESTATED 

The Namibian Competition Commission instituted action against a number of defendants for inter alia declaratory and interdictory relief, as well as the imposition of a pecuniary penalty in terms of the provisions of the Competition Act, 2 of 2003 (“the Act”).  The particulars of claim were excepted to on the grounds that no cause of action was disclosed, due to the absence of detail required by s 36, 37, 38 and 53 of the Act.  Additionally the excipients in the body of the exception, raised a ‘strike’ out, alleging that certain paragraphs of the particulars of claim were irrelevant, alternatively vexatious and prejudicial and should be struck out.

After considering the applicable legal principles and legislative provisions, SCHIMMING-CHASE J held that

1. The test for exceptions on the basis that the particulars of claim do not disclose a cause of action, is that the exception must be decided on the basis that the facts alleged in the claim are true and correct and that the pleading is excipiable upon every interpretation which the pleading can reasonably bear.
2. The particulars of claim disclose a cause of action and compliance (for purposes of the allegations contained in the claim against the defendants) with the principles embodied in the Act.
3. It is not for the Commission to plead or suggest what amount the pecuniary penalty sought to be imposed by the court should be. This is a decision for the court to make in terms of the Act, having regard to the nature and circumstances attendant to the matter before it after all relevant evidence is led.
4. Applications to strike are governed by rule 58, and not rule 57. The notice to strike brought within the body of an exception that the claim discloses no cause of action, and not containing a single ground in support of the allegation that the paragraph(s) in question are vexatious, irrelevant or scandalous is improper and falls to be struck from the roll.

In the result, the exceptions was dismissed and the ‘strike out’ was struck from the roll.

Namibia Competition Commission v Santam Namibia NAHCMD 24 August 2022