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[2021] ZAWCHC 131
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Hector v George Municipality and Another (17029/2020) [2021] ZAWCHC 131 (13 July 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Case
No: 17029/2020
In the matter between:
RICHARD JOHN
HECTOR
Plaintiff
and
GEORGE
MUNICIPALITY
First
Defendant
GEORGE
LINK (PTY) LTD
Second
Defendant
JUDGMENT
DELIVERED ELECTRONICALLY: TUESDAY, 13 JULY 2021
NZIWENI AJ
Introduction
[1]
This is an opposed exception in terms of Rule 23(1) of the Uniform
Rules of Court
filed by the First Defendant against the Plaintiff’s
particulars of claim. Chiefly, the First Defendant complains that the
said particulars lack averments which are necessary to sustain an
action.
[2]
The Defendant's notice of exception reads as follows:
“
BE
PLEASED TO TAKE NOTICE that . . .
COMPLAINT 1
8.
Section 19 (1) (a) (iii) of the Supreme Court Act 59 of 1959 (“the
Act”)
provides that, “in addition to any powers of
jurisdiction which may be vested in it by law, a provincial or local
division
of the Supreme Court shall have power, in its discretion,
and at the instance of
an interested person,
to enquire into
and determine any existing, future or contingent right or obligation.
9.
During the first stage of this enquiry, the court must be satisfied
that the
Plaintiff has an existing, future or contingent right or
obligation. If the court is satisfied that the existence of such
conditions
have been proved, it has to exercise the discretion by
deciding either to refuse or grant the order sought.
10.
In terms of Rule 17 of the Uniform Rules of the Court (“the
rules”) it must
appear from the summons that the Plaintiff has
interest in the matter which entitles him to sue. Rule 17 (2)
requires the Plaintiff
to allege the material facts relied upon by
Plaintiff in support of his claim.
11.
At paragraph 4 of the particulars of claim (“the claim”),
the Plaintiff alleges
that he was a shareholder of the Second
Defendant.
12.
At paragraph 5 of the claim, the Plaintiff alleges that his father
and the second Defendant
entered into a written agreement referred to
as the Declaration agreement.
13.
At paragraph 7 the Plaintiff alleges that, after his father’s
death, the Plaintiff
succeeded his father as a party to the
Declaration.
14.
At paragraph 8 of the claim the Plaintiff alleges that in order to
become shareholders he
had to relinquish certain routes.
15.
At paragraph 9 of the claim the Plaintiff alleges that the
Plaintiff’s father and
the First and Second Defendant entered
into written agreement called the compensation agreement. As before,
the Plaintiff alleges
that, after his father’s death, the
Plaintiff succeeded his father as a party to the compensation
agreement.
16.
At paragraphs 12 and 12.1 of the claim the Plaintiff alleges that all
the parties undertook
to do all things and to perform all acts as may
be necessary for putting into effect the terms, conditions and import
of the agreement.
17.
At paragraph 12.3 of the claim the Plaintiff alleges that all the
parties undertook to do
all things and to perform all acts as may be
necessary for putting into effect the terms, conditions and import of
the agreement.
18.
At prayer (b) the Plaintiff prays for declaratory relief that the
First and Second Defendant
do all things necessary to restore the
Plaintiff’s rights in terms of the Compensation agreement.
19.
It is common cause that the Plaintiff is not a party to the
declaration agreement and the
compensation agreement.
20.
There is no need for a court to exercise its power to make a
declaratory order where the
Plaintiff is not entitled to the relief.
Furthermore, this Honourable Court cannot make a declaration of
some-one else’s
rights.
21
Accordingly, in terms of pleaded facts and the parties to the
respective agreements,
there are no interested persons on whom the
declarator is binding.
22
Ex facie the agreements the Plaintiff has no enforceable rights hence
the declaratory
is incompetent. As such the Plaintiff lacks locus
standi. The Plaintiff is not acting in any representative capacity of
a deceased
estate.
23.
The Plaintiff’s rights as heir to his late father’s
estate have not been pleaded,
neither has pleaded that the provisions
of the last will and testament of his late father is binding on the
First Defendant.
24.
The general rule is that it is for the party instituting proceedings
to allege and prove
it has locus standi and the onus of establishing
it rests on that party.
25.
The Plaintiff has failed to allege the material facts upon which he
relies in order to be
entitled to relief claimed.
26.
Consequently, the Plaintiff’s claim lacks essential averments
necessary to sustain the cause
of action.
COMPLAINT 2
27.
The Plaintiff failed to plead facts to establish that he had any
existing rights which are
enforceable. The Plaintiff failed to relay
on any provision in any agreement, or other, to specify precisely
which right is implicated.
28.
At paragraphs 7 and 11 of the claim, the Plaintiff alleges that he
succeeded his father
as a party to the declaration agreement and
compensation agreement (collectively referred to as “the
agreement”) respectively.
29
As such the Plaintiff is required to allege all essential facts in
order to establish
the agreement to cede and cession itself.
Furthermore, the Plaintiff must allege the facts to establish that at
the time of death,
his late father was entitled to the rights which
he ceded to the Plaintiff.
30.
The Plaintiff is required to allege and prove that this
cession of his late father’s
rights to him is permissible in
terms of the agreements and that the First Defendant consented to the
cessation.
31.
The Plaintiff has failed to allege the relevant facts to establish a
valid cession.
32.
This Honourable Court lacks inherent power to declare the existence
of specified rights
in the absence of clear facts to establish the
existence of same.
33.
Consequently, the Plaintiff’s claim lacks essential averments
necessary to sustain
a cause of action.
COMPLAINT 3
34.
In terms of rule 17 (2), the Plaintiff is required to allege the
material facts relied upon
in support of his claim.
35.
The Plaintiff’s claim is based on a written contract that was
reduced to writing as
provided for in terms of the declaration
agreement and the compensation agreement.
36.
Clause 1.1 of the declaration agreement provides that the operator
agrees to relinquish
certain of his route authorities pertaining to
the licences detailed in Annexure A thereto in order to participate
in the George
Integrated Public Transport Network (“GIPTN”).
37.
Clause 2 of the declaration agreement provides that an exchange for
certain authorities
pertaining to licences listed in Annexure A
thereto, the operator elects to buy-in/buy-out combination detailed
in Annexure A.
38.
Clause 3 of the declaration agreement provides that only operators
who elect to buy-in in
the GIPTN will be entitled to become
shareholders.
39.
Clause 1.1.6 of the compensation agreement defines the buy-in option
as an election by an
operator to relinquish it affected licence and
adhere to restraint conditions associated therewith, for compensation
and which
also entitled the operator to become a shareholder.
40.
Clause 2.1 of the compensation agreement provides that the operator
agrees to relinquish
its affected licence to cease operations
affected routes and to adhere to the restraint conditions in exchange
for compensation.
41.
The compensation agreement provides for other obligations of the
operator.
42.
The Plaintiff failed to allege that he compiled with these
obligations in terms of the agreements
in order to be entitled to
become a shareholder and be entitled to compensation as a
shareholder.
43.
The Plaintiff, in terms of the declaratory relief is claiming for
specific performance of
a contract that demands reciprocal
performance. As such the Plaintiff must allege or tender performance
of his obligations.
44.
The Plaintiff has failed to allege and/ or tender reciprocal
performance.
45.
Accordingly, the Plaintiff claim lacks essential averments to sustain
a cause of action.
The Plaintiff has
failed to allege and/ or tender reciprocal performance.
COMPLAINT 4
46.
Paragraph 15 of the claim provides that the purported cancellation by
the First Defendant
constituted a repudiation of the agreement which
repudiation the Plaintiff did not accept.
47.
The relief claimed in terms of the declaratory order is based on
restitution and specific
performance of accrued rights.
48.
In order to rely on a repudiation, the Plaintiff is required to
allege all the material
facts to establish repudiation on the part of
the First Defendant.
49.
The Plaintiff has failed to allege all the material facts required to
establish a repudiation.
50.
Consequently, the claim lacks averments necessary to sustain a cause
of action.
In order to rely on a
repudiation, the Plaintiff is required to allege all the material
facts to establish repudiation on the part
of the First Defendant.
COMPLAINT 5
51.
On 12 February 2021, in a reply to the First Defendant’s
correspondence to remove
the causes of complainants relating to the
pleadings, the Plaintiff’s attorney stated the provisions
regarding a breach,
on the part of the First Defendant, are provided
for in paragraphs 13-15 of the claim.
52.
Paragraph 13 of the claim provides that the First Defendant purported
to cancel the compensation
agreement pursuant to the Plaintiff’s
alleged failure to relinquish his existing licences by that stage.
53.
Paragraph 14 of the claim provides that the Plaintiff did not have to
relinquish his licence
by that stage as the First Defendant made full
performance on its part impossible. The Plaintiff alleged three
grounds upon which
the First Defendant made full performance
impossible.
54.
None of the grounds referred to in paragraph 14 relate to any
obligations of the First Defendant
in terms of the Declaration
agreement or the Compensation agreement.
55.
The Plaintiff does not allege that the First Defendant breached a
contractual duty owed
to him, or that the First Defendant wrongfully
breached a contractual term.
56.
The Plaintiff did not allege that the grounds referred to in
paragraph 14 of the claim were
contractual terms nor did he allege
the basis for which those grounds alleged were owed to him.
There is no allegation that
when the First Defendant cancelled the
compensation agreement that it acted contrary to the terms of any
contract between them.
57.
As such the Plaintiff failed to establish a breach a breach on the
part of the First Defendant,
in terms of which he was entitled to
refuse to relinquish his operating licence.
58.
Based on the pleadings, the cancellation of the agreement for breach
of a material term
of the compensation agreement, being the failure
to relinquish the operating licence, fell within the power of the
Defendant. This
Court has no power to declare a contract valid which
has been validly terminated.
COMPLAINT 6
59.
Clause 7 of the compensation agreements provided the circumstances
under which the agreement
could be terminated.
60.
Clause 7.3 of the compensation agreement provides that, “should
either party to the
agreement breach any of its obligations in terms
of this agreement and remain in breach thereof after the expiry of a
period of
14 days” notice in writing given to the party in
breach by the affected party calling upon the party in breach to
remedy
such breach, the affected party shall have the
right, without prejudice, to any other rights to which he may be
entitled
in law, or under this agreement.
61.
In the event that the Plaintiff is successful in proving a breach on
the part of the First
Defendant, the Plaintiff has failed to allege
facts to establish compliance with the provisions of clause 7.3 of
the compensation
agreement.
62.
As such, the Plaintiff is not entitled, in terms of clause 7.3.15 to
hold the First Defendant
bound to the agreement and enforce
performance of its obligations.
63.
The plaintiff has failed to establish facts to establish demand and
has failed to plead
demand and a failure to perform in terms of the
demand, on the part of the First Defendant.
64.
In addition, the Plaintiff has failed to attach any written notice
advising the First Defendant
to remedy the alleged breach, as well as
a letter of demand for performance in terms of the First Defendant’s
obligations
in terms of the Declaration agreement and/ or the
Compensation agreement.
65.
In terms of clause 7.3 the demand is material before the Plaintiff is
entitled to any remedies
provided for in the remainder of the clause.
66.
A declarator is not competent where other relief is claimable,
including damages arising
out of the breach of the agreement.
67.
Consequently, the pleadings lack essential averments necessary to
sustain a cause of action.
NOW THEREFORE
68.
Having regard to complaints 1-6, the claim falls to set out legal
grounds upon which the
Plaintiff can claim relief in terms of prayers
(a) to (g) of the claim.
69.
In the circumstances, the First Defendant submits that the
Plaintiff’s claim lacks
essential averments necessary to
sustain a cause of action. The Plaintiff’s claim does not
disclose a cause of action against
the First Defendant. The first
Defendant is unable to plead to the particulars of claim and same are
excipiable.”
Evaluation
Complaints 1 and 2
[3]
A pleading plays an important role in identifying the issues between
parties, because
the opposite party should be capable to ascertain
what case it is required to meet. Otherwise, the opposite party will
be put in
an unfavourable position during trial. Hence the importance
of lucid and logical pleading is completely undeniable.
[4]
The first complaint pertains to
locus
standi
. The second complaint relates to
the purported failure by the Plaintiff to allege necessary averments
to prove that he succeeded
his father as a party to the Declaration
and Compensation agreement or necessary averments to sustain a cause
of action.
The Counsel for the first Defendant submitted that
the Plaintiff did not plead the provisions of his father’s last
will and
testament.
[5]
In the first complaint, the First Defendant is complaining that the
particulars of
claim do not reveal on what basis the Plaintiff has
locus standi.
In other words, the Plaintiff’s averments in the particulars of
claim do not disclose sufficiently that he has a direct interest
in
the matter.
[6]
It is trite that a Plaintiff must allege and prove
locus
standi
. See
Mars
Incorporated v Candy World (Pty) Ltd
[1990] ZASCA 149
;
1991
(1) SA 567
(AD) at 575 H. In the particulars of claim, it is
pleaded that the Plaintiff succeeded his father as a party to the
Declaration
and Compensation agreement after his father’s
death. Consequently, the Plaintiff is bringing the action not on
behalf of
anyone but as a direct action in his own right.
[7]
It has been held that a defect in the pleading must appear
ex
facie
. See
Barnard
v Barnard
2000 (3) SA 741
(CPD) at para
10.
[8]
On the one hand, the First Defendant argues that what is
pleaded in the particulars
of claim does not clothe the Plaintiff
with the necessary
locus standi
. It is further contended on
behalf of the First Defendant that in terms of the pleaded facts, the
Plaintiff has no enforceable
rights as his late father was the actual
party to the Declaration and Compensation agreements. So the argument
continues that the
Plaintiff failed to plead the facts to establish
how, when and why the said right accrued to him. It is further
strongly
contended on behalf of the First Defendant that:
“
The
Plaintiff alleges that he succeeded his father as a party to the
Declaration agreement after his father’s death. The Plaintiff’s
rights as heir to his late father’s estate have not been
pleaded, neither has the Plaintiff pleaded that the provisions of
the
last will and testament, if at all, of his late father is binding on
the First Defendant.”
[9]
On the other hand, it was argued on behalf of the Plaintiff that the
Plaintiff, only
needs to plead the
facta
probanda.
[10]
It is significant to note that the perusal of the Declaration and
Compensation Agreements reveals
that under clause 12: “
an
operator can cede, assign, delegate, or transfer his or her rights
and obligations as part of distribution of the operator’s
estate”
.
[11]
In
McKenzie v Farmers’ Co-operative Meat Industries
Ltd
1922 AD 16
at 23 “…
every fact which it
would be necessary for the plaintiff to prove, if traversed, in order
to support his right to the judgment of
the Court. It does not
comprise every piece of evidence which is necessary to prove each
fact, but every fact which is necessary
to be proved
."
In
Evans v Shield
Insurance Co Ltd
1980 [2] SA 814 (A) at 825G dealing with
the ‘cause of action’, the following was stated: “…
is
ordinarily used to describe the factual basis, the set of
material facts,that begets the plaintiff's legal right of action.”
In
Jowell v
Bramwell-Jones and Others
1998 [1] SA 836 (W), the court stated
that:
"Minor
blemishes are irrelevant: pleadings must be read as a whole; no
paragraph can be read in isolation… A distinction
must be
drawn between facta probanda or primary factual allegations which
every plaintiff must make, and the facta probantia, which
are
secondary allegations upon which
the plaintiff will rely in support of his primary factual
allegations
.
Generally
speaking, the latter matters for particulars for trial and even then
are limited
. (my emphasis) For
the rest, they are matters of evidence. Only facts need be pleaded;
conclusions of law need not be pleaded".
[12]
In paragraphs 7 and 11 of the particulars of claim, the Plaintiff
avers that he succeeded his
father as a party to the Declaration and
Compensation Agreements after his father’s death. Put
differently, he alleges that
he is the legal heir to succeed his
father in the Declaratory and Compensatory Agreements.
[13]
The Plaintiff did provide particulars in respect of which he claims
locus standi
.
It is my view that from the facts particularised by the Plaintiff in
the particulars of claims; it is fairly ascertainable from
the
pleading that the Defendants have been sufficiently apprised why the
Plaintiff is claiming
locus standi
.
[14]
Even the complaints mentioned on behalf of the First Defendant
evinces that the First Defendant
understands the particulars of claim
when it comes to the
locus standi
.
I say this because it is asserted that the Plaintiff did
not plead the terms of the will even though the Plaintiff
did not
mention a will in the particulars of claim. Plainly, the First
Defendant by mentioning the will anticipates what evidence
is going
to be led in the trial. This, in my mind, demonstrates eloquently
that the First Defendant knows what case it will need
to meet and
will not be taken by surprise, during the trial. This is so because
the Plaintiff has defined in general terms the
material facts upon
which he relies on, to claim
locus
standi
.
[15]
It is my view that the First Defendant is currently seeking needless
prolix narrative of the
facts. This is all the more unnecessary as
this court at this juncture, is not tasked with determining whether
the Plaintiff has
locus standi
.
But it is tasked with determining whether sufficient averments have
been made to allege
locus standi
.
The facts which the First Defendant requires with reference to
locus
standi
, are relevant to proof. Clearly,
it is not that the particulars of claim should contain evidence upon
which the material facts
are to be proved.
[16]
It is critical to draw a distinction between essential averments of
the case from the evidence
by which they are proved. Inasmuch as the
Plaintiff is required to prove his
locus
standi
, he however, cannot do so in the
pleadings as they are not a forum to prove allegations. It is a
settled principle of our law that
facta
probantia
has no place in
pleadings. In this matter, on the facts alleged, it would be
incorrect to assert that the Plaintiff did not
plead
locus
standi
. In any event, the nature of
this matter does require that the Plaintiff should plead what is
complained about in the first complaint.
[17]
Though I suspect that in the trial, the Plaintiff will need to refer
to the terms and consequence
of the last will and testament of his
father to prove or support his claim on the pleading, for the current
purpose of pleading
however, the Plaintiff is not required to prove
his averments, as he has pleaded the necessary facts relied upon to
establish
locus standi
.
For that matter, the last will and testament of the Plaintiff’s
father is attached to the particulars of claim. Consequently,
when
the Plaintiff leads such evidence in the trial it will not mean that
he is departing from his pleading.
[18]
It has also been held that pleadings are not supposed to be a preview
of the evidence that is
going to be lead at the trial. In
Venter
and Others NNO v Barritt; Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
2008
(4) SA 639
(C) Potgieter
AJ opined the following at para 14:
“
Generally
the information in a declaration or particulars of claim need only be
sufficient for the defendant to plead thereto. The
exception stage is
not the time for the defendant to complain that he does not have
enough information to prepare for trial or
may be taken by surprise
at the trial. That comes later in the (often long and cumbersome)
journey to the doors of the court, after,
inter alia, discovery of
documents and requests for trial particulars had been made.”
[19]
As evinced in the case of
Jowell
, supra, that it is settled
that the pleading must be read as a whole and one paragraph should
not be read in isolation of the others.
However, merely from gleaning
at the above averment it becomes immediately evident that, the
Plaintiff is not simply a busy body
or someone who is meddling in
business, which does not concern him but someone who derived
his authority and the necessary
locus standi
by virtue of his father’s death. Furthermore, it is also
evident from the particulars of claim that the Plaintiff also
relies
upon the agreements, which were entered between his father and the
First Defendant.
[20]
In so far as the cession is concerned, the Plaintiff never alleged
that he obtained his rights
from a cession. Clearly when it comes to
this aspect, counsel on behalf of the First Defendant is drawing
conclusions, which are
not supported or justified by the alleged
facts in the particulars of claim. It is an established principle of
our law that an excipient is
confined to the facts alleged
in the particulars of claim as it stands and cannot at the
exception stage go beyond the record.
[21]
For that matter, clause 12 of the Declaration and Compensation
Agreement is clearly headed ‘
Transfer,
Cession and Assignment’
. If
regard is given to clause 12 of the Declaration and Compensation
Agreement it becomes plain that rights and obligations
can be given
to a third party in various ways other than the cession.
Complaint 3, 4 5
and 6
[22]
In
H v Fetal Assessment Centre
2015 (2) SA 193
(CC) at para 10
it was stated that:
“
The
test on exception is whether on all possible readings of the facts no
cause of action may be made out. It is for the excipient
to satisfy
the court that the conclusion of law for which the plaintiff contends
cannot be supported on every interpretation that
can be put upon the
facts.”
[23]
No extraneous facts may be adduced to show that the pleading is
excipiable, the defect in the
pleading must appear
ex
facie
.
[24]
In this matter, the First Defendant does not allege that the
exceptions ought to be upheld because
on every reading which the
pleading in question, and particularly the agreements on which it is
based, disclose no cause of action.
[25]
On numerous occasions our courts have sounded a warning that courts
should be reluctant to decide
on exception issues involving
interpretation of a contract.
See,
Sun
Packaging (Pty)
Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA
176
(SCA).
[26]
The following is stated under complaint 3 of the Notice of exception:
“
42.
The plaintiff failed to allege that he complied these obligations in
term of the agreements in order to be entitled to become
a
shareholder and be entitled to compensation as a shareholder.
43. The Plaintiff, in
terms of declaratory relief is claiming for specific performance of a
contract that demands reciprocal performance.
As such the Plaintiff
must allege or tender performance of his obligations.
44.
The Plaintiff has failed to allege and /or tender reciprocal
performance.”
[27]
First and foremost, the Plaintiff after setting out in the
particulars of claim the terms of
the relevant agreements he
categorically alleged in his particulars of claim that the First
Defendant made full performance on
his part impossible.
[28]
An exception hearing is not meant to be dress rehearsal of the trial.
The First Defendant in
complaint 3 essentially requires of this court
to interpret the agreements involved in this matter.
[29]
In complaint 4 the following is alleged:
“
In
order to rely on repudiation, the Plaintiff is required to allege all
material facts to establish a repudiation on the part of
the
Defendant.”
[30]
If regard is had to all the averments contained in paragraphs 13 to
15 of the particulars of
claim, it is evident that the repudiation is
based on the allegations contained in those paragraphs.
Clearly,
the Plaintiff
relies on all
of the conduct referred to those paragraphs.
[31]
When it comes to complaint 5, the following is stated in paragraph 54
of the Notice of exception:
“
None
of the grounds referred in paragraph 14 relate to any obligations of
the First Defendant in terms of the Declaration agreement
or
Compensation agreement.”
Once again, when it comes
to this particular issue raised by the First Defendant, this specific
exception is based upon an interpretation of
the relevant
agreements and conclusions reached by the First Defendant. Evidently,
once again the First Defendant wants this court
to interpret the
terms of the agreements at this juncture. As already alluded herein
above is an issue for trial court and it has
absolutely nothing to do
with an exception. Whether the case of the Plaintiff has merit or not
is not for this court to determine.
[32]
Similarly paragraphs 55-56 of the Notice of exception and complaint 6
are not relevant for purposes
of an exception hearing. As far as I
can glean from the papers and the submissions made on behalf of the
First Defendant, they
evince that the case of the Plaintiff
is
actually pleaded to the extent that the First Defendant is reasonably
informed about the Plaintiff’s case and as to what
the First
Defendant is in for. It is my firm view that, on any or every reading
of the particulars of claim as pleaded, that
the particulars of
claim, meet the requisite precision.
Conclusion
[33]
It’s not the purpose of exception proceedings to ascertain or
detect whether in the trial,
the litigant with the impugned pleadings
is guaranteed success. The court seized with the exception
proceedings needs to find as
to whether the pleadings pass the muster
under Uniform Rules 23 and 18.
[34]
It follows from this that all the exceptions raised are
accordingly without merit.
In the
result, I make the following order:
(a) The exceptions
are dismissed.
(b) The
First Defendant is ordered to pay the Plaintiff’s costs, such
costs to include the costs of counsel.
CN NZIWENI
Acting
Judge of the High Court
Appearances
Counsel for the
Plaintiff :
Adv M Daling
Counsel
for the Defendants : Adv Y
Isaacs