Void for vagueness was considered in a recent judgment of the SCA in Loggenberg NO v Maree (286/17) [2018] ZASCA 24 (23 March 2018) and has drawn specific attention to the doctrine of vagueness, more particularly concerning the legal practice of taking exception to pleadings. An exception serves as a means of objecting to pleadings when they are alleged to be insufficiently detailed or otherwise lack lucidity and are thus embarrassing and affect the other party’s ability to plead.
Excerpt
The following excerpt from that judgment is important for practitioners and the points have been stressed and emphasis added.
“[23] What remains is the exception that the contract is void for vagueness. It is a settled principle that the question whether a purported contract is void for vagueness should not lightly be decided on exception.
In this regard the dictum of Harms JA in Namibian Minerals Corporation v Benguela Concessions is particularly apposite:
‘Once a court is called upon to determine whether an agreement is fatally vague or not, it must have regard to a number of factual and policy considerations. These include
- the parties’ initial desire to have entered into a binding legal relationship;
- that many contracts (such as sale, lease or partnership) are governed by legally implied terms and do not require much by way of agreement to be binding (cf Pezzuto v Dreyer and Others 1992 (3) SA 379 (A);
- that many agreements contain tacit terms (such as those relating to reasonableness);
- that language is inherently flexible and should be approached sensibly and fairly;
- that contracts are not concluded on the supposition that there will be litigation; and
- that the court should strive to uphold – and not destroy – bargains’.”