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[2014] ZAGPJHC 399
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South African Securisation Programme (RF) Ltd and Others v Vaios Kokkoris T/A Kokkoris Attorneys and Others (32802/13) [2014] ZAGPJHC 399 (8 January 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION)
CASE NO: 32802/13
DATE: 08 AUGUST 2014
In the matter between:
SOUTH AFRICAN SECURISATION PROGRAMME
(RF) LTD
.................
First Plaintiff
SASFIN BANK
LIMITED
.......................................................................
Second
Plaintiff
SUNLYN (PTY)
LTD
..................................................................................
Third
Plaintiff
And
VAIOS KOKKORIS T/A KOKKORIS
ATTORNEYS
...............................
First
Defendant
CHRISTODOULOU AND MAVRIKIS
INC
.........................................
Second
Defendant
BYRON MARK
HARDY
.........................................................................
Third
Defendant
JUDGMENT
FRANCIS J
Introduction
1. The first, second and third
plaintiffs instituted an action against the first, second and third
defendants, jointly and severally,
the one paying the others to be
absolved, for the payment of the sum of R422 957.40, together with
interest and costs on the attorney
and own client scale.
The background facts
2. The underlying foundation of the
action is a rental agreement which was concluded on 11 June 2009
between Sunlyn Rentals (Pty)
Ltd and a firm of attorneys,
Christodoulou and Mavrikis Inc (the
second defendant). Sunlyn (Pty) Ltd was previously known as Sunlyn
Rentals (Pty) Ltd and before
that as Sunlyn Investments (Pty) Ltd.
The agreement of hire appears as annexure “A” to the
particulars of claim.
Attached to that rental agreement is a deed of
suretyship signed by the defendant on 11 June 2009.
3.The plaintiffs pleaded that on or
about August 2010, the first defendant (Kokkoris) and Sunlyn Rentals
concluded a written delegation
agreement in terms of which the
obligations of the second defendant (Christodoulou and Mavrikis) in
terms of the rental agreement
were delegated to the first defendant.
The delegation agreement appears as annexure “B” to the
particulars of claim.
4. The plaintiffs allege in paragraph
10 of the particulars of claim that the equipment was delivered to
the defendant by the supplier,
but it is not stated to which
defendant it was delivered.
5. The particulars of claim refer to
two independent agreements of cession:
5.1 the first cession is alleged to
have taken place on 29 March 2006 and is one which Sunlyn ceded to
the second plaintiff its
right, title and interest in and to the
rental agreement (annexure A to the particulars of claim);
5.2 the second cession is alleged to
have taken place on 21 September 2007 and is one in terms of which
the second plaintiff ceded
to the first plaintiff the right, title
and interest which the second plaintiff had derived from the cession
agreement with the
third plaintiff.
6. The claim against the first
defendant is derived from the terms of the delegation agreement, in
terms of which Sunlyn Rentals
agreed to Christodoulou and Mavrikis
Inc delegating to Kokkoris all of the former’s obligations
arising from the rental agreement.
It is alleged that Kokkoris
assumed the obligations of Christodoulou and Mavrikis Inc to pay
rentals in terms of the agreement
if hire.
7. It is alleged in paragraphs 21 and
22 of the particulars of claim that the first defendant defaulted on
the obligations in terms
of the rental agreement by failing to pay
the rentals due in terms thereof.
8. The indebtedness of the first
defendant is stated to be R422 957.40.
9. The first defendant has filed an
exception to a paragraph 27.1 of the particulars of claim complaining
that the allegation contained
in it does not sustain a cause of
action against the first defendant.
10. The second defendant has also
excepted to the particulars of claim also on the basis that the
pleading against both the first
and second defendants does not
contain facts which disclose a cause of action against either.
The Relevant legal principles
11. It is trite that there is often a
substantial overlap between exceptions based on a vague and
embarrassing complaint, and those
relating to the lack of
particularity required by rule 18(4) of the Uniform Rules of Court
(the Rules). The principles applicable
to the
two procedures are different. They are
not mutually exclusive. Where a plaintiff’s pleadings do not
comply with the requirements
of rule 18 in that, for instance, the
specific particulars are not set out therein, and are also vague and
embarrassing, the defendant
will have a choice whether to proceed in
terms of rule 30 read with rule 18 or in terms of the rule 23
exception procedure. A
defendant is entitled to bring both
procedures in the alternative.
12. It is a basic principle that
particulars of claim should be so phrased that a defendant may
reasonably and fairly be required
to plead thereto. This must be
seen against the background of the abolition of requests for further
particulars of pleading and
the further requirement that the object
of pleadings is to enable each side to come to trial prepared to meet
the case of the other
and not be taken by surprise. Pleadings must
therefore be lucid and logical and in an intelligible form; and the
cause of action
or defence must appear clearly from the factual
allegations made.
13. The whole purpose of pleadings is
to bring clearly to the notice of the Court and the parties to an
action the issues upon which
reliance is to be placed and this
fundamental principle can only be achieved when each party states his
case with precision.
14. The principles applicable to an
exception based on no cause of action differ from one based on a
vague and embarrassing complaint.
A party may except to a pleading
on the grounds that it is vague and embarrassing. Where an exception
to a pleading is brought
on the ground that it is vague and
embarrassing, it involves a two-fold
consideration, the first being whether
the pleading lacks particularity to the extent that it is vague and
the second whether the
vagueness causes embarrassment of such a
nature that one is prejudiced. This prejudice lies in the
excipient’s inability
properly to prepare to meet the
opponent’s case.
15. Where a pleading lacks
particularity, it is either meaningless or capable of more than one
meaning or can be read in any one
of a number of ways. Where a court
upholds an exception which alleges that the pleading is vague and
embarrassing, leave to amend
is generally granted to the party which
produced the excipiable pleading.
16. The approach to be adopted where a
matter involves a complaint that a pleading is vague or embarrassing
and hence is excipiable
or in non-compliance with rule 18(4) was
identified in Jowell v Bramwell – Jones & Others 1998(1) SA
836 (W) at 905 H
- I as follows:
16.1 the question must firstly be asked
whether the exception goes to the heart of the claim, and
16.2 if so, whether it is vague and
embarrassing to the extent that the defendant does not know the claim
he has to meet, and
16.3 should he find that an exception
on any ground fails, to then ascertain in the second place whether
the particulars identified
by the defendant are strictly necessary in
order to plead and, if so, whether the material facts are
unequivocally set out.
17. The purpose of an exception that a
pleading does not disclose a cause of action is to dispose of the
case, as pleaded, in whole
or in part. In order to disclose a cause
of action, a pleading must set out every fact (material fact) which
it would be necessary
for the party to prove, if traversed, in order
to support his right to judgment of the court. A pleading which
fails to meet this
standard is therefore excipiable. The excipient
has the duty to persuade the court that upon every interpretation
which the pleading
can reasonable bear, no cause of action is
disclosed.
The first ground of exception against
the claim formulated against the first defendant
18. The first defendant is described in
paragraph 4 of the particulars of claim to be “Vaios Kokkoris,
an adult male attorney
trading as Kokoris Attorneys”.
19. In paragraph 26 of the particulars
of claim it is pleaded as a primary proposition that the
National
Credit Act, 2005
is not applicable to the rental agreement as:
“27.1 The first defendant is a
juristic person with an asset value or annual turnover, together,
with that of its related
juristic persons equally or exceeding R1 000
000.00.”
20. “Juristic person” is
defined in
section 1
of the
National Credit Act to
include:
“A partnership, association or
other body of persons, corporate or unincorporated, or a trust if …”
21. The plaintiffs description of the
first defendant is obviously confusing and if read in isolation is
somewhat vague and embarrassing.
This is not the complaint raised by
the first defendant in its exception. It is arguable that the
allegations contained in the
particulars of claim do not sustain a
cause of action of action against the fist defendant. In my view
paragraphs 27.1 of the
particulars of claim should be read with
paragraphs 27.2 where it is pleaded in the alternative that the
agreement entered into
7.
is not a credit agreement and/or lease
agreement as defined in
Section 1
and Schedule 8 of the National
Credit Act 34 of 2005 (the Credit Act). All that is pleaded in the
aforesaid paragraphs is that
the Credit Act is not applicable because
of the fact that the first defendant is a juristic per with an asset
value or annual turnover,
together with that of its related persons
equalling or exceeding R1 000 000.00. In the alternative it is
pleaded that the agreement
does not fall under the definition of a
credit agreement.
22. The exception does not go to the
core of the plaintiffs claim against the first defendant. It does
not have the effect of disposing
of the case in whole or in part.
Even if the exception was to be upheld, it does not disposes of the
plaintiffs claim against the
first defendant. Paragraphs 27.1 should
not be read in isolation but should be read with paragraph 27.2 of
the particulars of
claim.
23. The first exception stands to be
dismissed.
The second exception – the claim
against the second defendant
24. It is pleaded in paragraph 27 of
the particulars of claim that the second defendant bound himself as
surety and co-principal
in solidum with the first defendant for the
payment by the first defendant of all monies due to one of the
unidentified plaintiff.
The allegation is that the deed of surety
binding the second defendant is one signed on 11 June 2009 a copy of
which is annexure
“A” to the particulars of claim. The
complaint is that Annexure “A” does not contain any
suretyship by
the second defendant and that self evidently that
document has an attachment a deed of surety which purports to have
been signed
by Byron Mark Hardy.
25. It was further contended by the
second defendant that on the assumption that the pleader intended to
rely on annexure “B”
to the particulars of claim as the
document binding the second defendant to the unidentified plaintiff
for the liabilities of the
first defendant, then the particulars are
excipiable for the following reasons:
25.1 annexure “B” to the
plaintiff’s particulars of claim is a document styled:
“Delegation Agreement”;
25.2 attached to that documents (as the
last page thereof) is a document headed “Suretyship”;
25.3 that document has not been signed
by any party other than the third defendant as a witness. In the
result, the document upon
which the plaintiffs appear to rely in
support of their cause of action against the second defendant does
not comply with the provisions
of the General Laws Amendment Act, 50
of 1956.
26. The second defendant contends that
in the result the particulars of claim as currently pleaded do not
make out a cause of action
against the second defendant.
27. The second ground of exception is a
complaint that the suretyship is not signed by Christodoulou and that
the particulars of
claim do not disclose a defence by its failure to
comply with the provisions of the General Laws Amendment Act 50 of
1956.
28. This exception us baseless. The
agreement on page 22 of the particulars of claim incorporates a deed
of suretyship of the “user”
who is Christodoulou. On page
23 of the document in clauses 1 and 5 the “user” binds
himself as suety to the delegee
(Kokkoris). In particular reference
is made to “clauses 3-14 in the Suretyship on the reverse
hereof which terms and conditions
shall apply hereto mutatis
mutandis”. Below clause 5 are 3 signatures. Clauses 3-14 of
the suretyship are referred to on
page 25. In my view whether or not
Kokkoris is liable as surety and whether or not the provisions of the
General Laws Amendment
Act 50 of 1956 have been complied with is a
matter of evidence and interpretation of the agreement. This
exception which has to
do with the interpretation of an agreement is
inappropriate to be determined at this stage. The terms of a deed of
suretyship
may be supplemented by incorporating another document to
comply with the statutory requirement. This is a matter that should
be
reserved for trial.
29. The exceptions stands to be
dismissed/
30. There is no reason why costs should
not follow the result.
31. In the circumstances I make the
following order:
31.1 The exceptions are dismissed with
costs.
FRANCIS J
HIGH COURT JUDGE
FOR PLAINTIFFS : C COTHILL
INSTRUCTED BY SMIT JONES & PRATT
FOR DEFENDANTS : ARG MUNDELL SC
INSTRUCTED BY RINA CALDEIRA ATTORNEYS
DATE OF HEARING : 31 JULY 2014
DATE OF JUDGMENT : 8AUGUST 2014