About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2014
>>
[2014] ZAGPJHC 111
|
|
Brandley Mattew Caulfield N.O and Others v Natures Choice Holdings (Pty) Ltd (35699/2012) [2014] ZAGPJHC 111 (16 May 2014)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO: 35699/2012
DATE:
16 MAY 2014
In the matter
between:
BRADLEY MATTHEW
CAULFIELD
N.O.
..........................................................
First
Applicant
SHONA CAULFIELD
N.O.
.................................................................................
Second
Applicant
NATURE’S
CHOICE PROPERTIES
(WADEVILLE)
..........................................
Third
Applicant
And
NATURE’S
CHOICE HOLDINGS (PTY)
LTD
..........................................................
Respondent
J U
D G M E N T
MASHILE, J:
[1] The Applicants
issued summons against the Respondent wherein the First and the
Second Plaintiffs, in their capacities as trustees
of the Bradcaul
Family Trust, demanded payment of:
1.1 R1 337 969.00
1.2 R300 000.00;
While the Third
Applicant claimed payment of: 1.3 R22 630.00.
In addition, all the
Plaintiffs claimed payment of interest on the aforesaid amounts at
the rate of 15.5% per annum a tempore morae
plus costs of suit.
[2] In response to
the combined summons, the Respondent served and filed an Exception on
18 March 2013. On 1 August 2013 the Applicants
reacted thereto by
delivering a Notice of their Intention to Amend as envisaged in
Uniform Rule 28. This prompted the Respondent
to deliver a Notice of
Objection on 6 August 2013. On 16 August 2013 and consequent
thereupon the Applicants launched these current
proceedings to amend
its particulars of claim.
[3] The claims
against the Respondent derive from the conclusion of three discrete
but entwined written agreements. Other than
mentioning that all of
them contain a default clause, I do not deem it necessary for
purposes of this judgment to delve into their
intricacies. The
relevant clauses dealing with default in the first, second and third
agreements are 11, 13 and 14 respectively.
Their numbering is
obviously different but their contents are indistinguishable.
[4] The issues that
fall for determination by this court are principally that:
[4.1] Whether or not
the Appplicants are entitled to an order permitting them to amend
their particulars of claim in the manner
described in their Notice of
Amendment;
[4.2] Will the
amendment undoubtedly remove the source of complaint raised by the
Respondent?.
[5] I have been
advised that the Exception and the Notice of Intention to Amend are
opposite sides of the same coin. The logical
way of treating them is
to attend to them in the sequence in which they were delivered upon
the respective parties. It is correct
that if the exception
succeeds, it will follow as of necessity that the Application to
Amend will fail. Conversely, if the Exception
fails the other must
succeed.
[6] It is trite that
the power of the court to allow amendment is limited only by
consideration of prejudice or injustice to the
opponent. See Page
B1-179 of Superior Court Practice by Erasmus, Farlam, Fichardt &
Van Loggerenberg. The fact that the outcome
of the amendment may
result in the one party losing the case is no reason not to allow an
amendment.
[7] The general
approach is, it would seem, to tolerate amendments especially in
instances where the application to amend is not
characterised by mala
fide and where such amendment will not cause injustice or prejudice
to the other party. The amendment will
readily be granted in
particular, where the injustice or prejudice can be cured by either
postponement or costs. See Devonia Shipping
Ltd v MV Luis (Yeoman
Shipping Co Ltd Intervening)
1994 (2) SA 363
(C), O'Sullivan v Heads
Model Agency CC
1995 (4) SA 253
(W) and Luxavia (Pty) Ltd v Gray
Security Services (Pty) Ltd
2001 (4) SA 211
(W).
[8] However, if
excipiability will render a pleading in its amended form indubitably
excipiable the general attitude adopted has
always been to decline
the amendment. See in this regard Krishke v Road Accident Fund
2004
(4) SA 358
(W).
[9] Where
excipiability of a pleading is only arguable or can be solved by the
supply of particulars, then it becomes appropriate
to grant the
amendment where the other considerations are favourable.
[10] The Plaintiffs
instituted the action seeking payment of the amounts claimed in the
particulars of claim. Each agreement contains
a default/breach
clause, which reads:
“In the event
of either party (the DEFAULTING PARTY) committing a breach of any of
the provisions of this agreements, then
the other party (the
AGGRIEVED PARTY) shall be entitled to give to the DEFAULTING PARTY
written notice to remedy the breach. If
the DEFAULTING PARTY fails
to comply with that notice within FOURTEEN 14 days of receipt
thereof, then, notwithstanding any other
provisions of this agreement
to the contrary, the AGGRIEVED PARTY shall be entitled to cancel
this agreement or to claim specific
performance , in either event
without prejudice to the AGGRIEVED PARTY’S right to claim
damages. The aforegoing is without
prejudice to such rights as the
AGGRIEVED PARTY may have in terms of this agreement or at law.
Notwithstanding the aforegoing
, an AGGRIEVED PARTY may only exercise
the right of cancellation in relation to a failure to remedy a
material breach of a material
breach of a material term of this
agreement that goes to the very root of this transaction.”
[11] The contention
in the Respondent’s Exception is fundamentally that in view of
the existence of the default clause in
all the three agreements, the
Applicants were obliged to aver that they have given the Respondent
the 14 day period within which
to remedy its breach. The absence of
the aforesaid critical allegation from the Applicants’
particulars of claim means therefore
that:
[11.1] The action as
presently formulated cannot be sustained;
[11.2] The alleged
cause of action is incomplete; and
[11.3] the action
was prematurely instituted.
[12] The Applicants
responded to the Exception by delivering the Notice of Amendment,
which delineates the manner in which they
want to amend their
particulars of claim. The Notice of Amendment seems to be an
acknowledgment or a recognition by the Applicants
that the Exception
is not without merit as they deal specifically with the complaint
raised by the Respondent. Below follows the
Applicants’
proposed amendment in full:
“13A.
13A.1 On a proper
interpretation of clause 11 of 'BCV, 13 of 'BC2' and 14 of 'BC3' the
trust was not obliged to give the defendant
written notice to remedy
any breach when the trusts claim was for specific performance, the
clause expressly providing inter alia
that it was without prejudice
to the trust's other rights in terms of the agreement.
13A.2 In the
alternative, and in the event of it being held that it was a
precondition to enforcement of the trust's claim herein
for such
written notice to be provided, then the plaintiff's plead that –
13A.2.1 the
defendant, represented by L. MITCHELL, on numerous occasions informed
the trust, represented by BRADLEY MATTHEW CAULFIELD,
that the
defendant was unwilling to pay further amounts to the trust,
including its claim herein;
13A.2.2 in so doing,
on repeated occasions. repudiated its obligations to make payment of
the trust’s claim herein.
13A.3 On 7 May 2012
the defendant (represented as aforesaid) in relation to the trust's
claims instructed the trust not to communicate
with the defendant on
the subject any further.
13A.4 The said
instruction as well as the conduct of the defendant in announcing it
was refusing to make any further payment and
in repudiating its
further obligations under the agreement, constituted a waiver by the
defendant of any right to receive a written
notice."
[13] The Respondent
asserts in response to the proposed amendment that the particulars of
claim will remain excipiable even if the
court were to allow the
amendment. For that reason it objected thereto. I turn now to
examine each of the proposed amendments
in the order they appear in
the Notice of Amendment to test the legitimacy of this argument.
PROPOSED PARAGRAPH
13A.1
[14] The Applicants
are importunate that on a proper construction of the default clause,
which as I have stated is common to all
three agreements, are not
obligated to give the Respondent a 14 day written notice to remedy
its breach under circumstances where
they are seeking specific
performance. This argument, as I understand it, is predicated on the
basis that it was without prejudice
to the Applicants’ other
rights in terms of the agreement.
[15] This argument
does not find favour with me. The clause should be read and
understood as it stands. The parties simply wanted
the ‘aggrieved
party’ to give notice to the ‘defaulting party’
prior to commencement of legal proceedings.
My understanding of the
default clause is that the 14 day notice to the defaulting party is a
gateway to any form of action that
the aggrieved party may want to
take. In other words, the furnishing of the notice does not confine
the aggrieved party to cancellation
or specific performance. That is
the meaning that should be assigned to the ‘without prejudice’
portion.
[16] My finding on
this proposed amendment means that the allegation that the Applicants
gave the Respondent a 14 day written notice
was indispensible.
Without it the Applicants’ action as presently formulated is
not sustainable, the alleged cause of action
is incomplete and it was
premature to institute it. It is incontestable that the particulars
of claim will remain excipiable if
the court were to allow the
amendment as proposed. See the krishke case (supra).
PROPOSED PARAGRAPH
13A.2 & 13A.3
[17] The Applicants
plead in the alternative and only in the event that the court
concludes as it did on Paragraph 13A.1 of the
Notice of Amendment
that the allegation was essential for the cause of action to be
complete that the Respondent repudiated its
obligation to make
payment arising from the agreements. The said repudiation, contends
the Applicants, constitutes a justification
for them not to have
given the 14 day written notice to the Respondent calling upon it to
remedy the breach.
[17] I cannot go
along with this assertion. The point is that a repudiation is a form
of a breach besides, as Counsel for the Respondent
has argued, the
agreement specifically requires the aggrieved party to furnish the
notice. Accepting that it is indeed so, the
Applicants were
therefore obliged to give the notice as contemplated in the default
clause. This argument is for those reasons
rejected.
[18] The Respondent
further contended that the intended amendment is vague and
embarrassing in that the Applicants did not aver
that:
18.1 Whether or not
any instruction not to communicate with the Defendant was oral or in
writing;
18.2 If oral, where
the instructions were allegedly given;
18.3 Where the
instruction was allegedly received; and
18.4 If in writing,
no such writing is identified or annexed.
[19] It is trite
that the onus of establishing that a pleading is vague and
embarrassing rests with the party making such allegation,
the
Respondent in this instance. The Respondent must therefore
demonstrate “both vagueness amounting to embarrassment and
embarrassment amounting to prejudice”. See Badenhorst v
Maluti-A-Phofung Municipality
[2008] JOL 21078
(O).
The lack of the
allegations referred to in Sub-Paragraphs 14.1 to 14.4 above do not
cause the pleading to be vague and embarrassing.
It is not ambiguous
such that the Respondent is embarrassed and prejudiced to plead
thereto. I agree with the Applicants that
the allegations said to
have been omitted could easily be obtained by the request of further
particulars. However, once I have
ruled that the repudiation did not
excuse the Applicants from giving the 14 day notice to the Respondent
to remedy its breach,
it becomes academic to explore this aspect in
detail.
PROPOSED PARAGRAPH
13A.4
[20] In a further
alternative, the Applicants have also vied that the Respondent has
waived its rights to receive the 14 day written
notice inviting it to
cure the default. This argument concerning waiver is put forward in
the face of the provisions of clause
13.2 of BC1, which reads:
“No relaxation
or indulgence which any party may show the other party shall in any
way prejudice or be deemed to be a waiver
of such parties rights
hereunder."\
[21] The aforesaid
clause is cited as clause 16.2 in the other two agreements, BC2 and
BC3. It is hard to grasp on what grounds
the Applicants purport to
ignore the contents of the clause above. The provisions of that
clause are unambiguous and cannot be
tossed aside. It is even
knottier to comprehend the Applicants’ argument in light of the
following statement of Nienaber
JA in The Road Accident Fund v R E
Mothupi
2000 (4) SA 38
(SCA):
‘Waiver is
first and foremost a matter of intention. Whether it is the waiver
of a right or a remedy, a privilege or power,
an interest or benefit,
and whether in unilateral or bilateral form, the starting point
invariably is the will of the party said
to have waived it.’
The intention of the
parties is unequivocally expressed in Clause 13.2, which I have
quoted above. Their intention at the time
when they concluded the
agreements was that certain actions that could be performed by them
should not be construed as waiver.
[22] To the extent
that the Respondent’s assertion that the proposed amendment is
vague and embarrassing under this paragraph
is similar to Paragraph
13A.2 and 13A.3, my finding is the same. In consequence I do not
believe that it is necessary to restate
the position. Lack of those
averments does not render the particulars of claim vague and
embarrassing. However, as in the case
of the repudiation discussed
above, my finding that the Respondent did not waive his right to
receive the 14 day written notice
to cure its default makes it
gratuitous to deal with this part because it will not change the
outcome.
PROPOSED PARAGRAPH
13A.5
[23] The Notice of
Amendment in the court file does not have a proposed amendment
numbered 13A.5. I have noted that the heads of
both counsel deal
with this as though it is part of the notice. For that reason, I
have assumed that the court must be in possession
of a different
notice and accordingly I shall deal with the paragraph as though it
were part of the notice.
[24] The Applicants
argue that in consequence of the Respondent’s instruction to
the Applicants not to communicate any further
with it, the 14 day
written notice must be deemed to have been fulfilled. If it is
correct that the Respondent gave such an instruction,
one would have
expected the Applicants to send the 14 day written notice warning the
Respondent that they will continue with the
matter on the basis that
there has been fictional fulfilment.
[25] The Applicants’
failure to do so must be fatal. Against that background I conclude:
[25.1] The
Applicants have failed to give the 14 day written notice to the
Respondent calling upon it to remedy its default under
circumstances
where the provisions of the agreement required them to do so;
[20.2] The alleged
repudiation being a breach of the agreement, if anything, required
the Applicants to furnish the 14 day written
notice to the
Respondent. In addition, it should be noted that the default clause
is formulated in a peremptory language;
[25.3] The
Applicants cannot rely on waiver as it has been specifically excluded
in each agreement;
[25.4] The lack of
particularity pertaining to how, when and where the repudiation and
waiver was communicated does not render the
pleading vague and
embarrassing as it can still be cured at a later stage. This finding
is however academic;
[25.5] Contrary to
the Applicants’ assertion, the instruction by the Respondent to
the Applicants that they were not to communicate
with the Respondent
anymore constituted a trigger for the 14 day written notice to be
sent to the Respondent;
[25.6] In view of
the indispensability of the allegation pertaining to the furnishing
of the 14 day written notice to the Respondent,
the particulars will
remain excipiable even if the court were to permit the amendment.
See the Krishke case (supra).
[26] In the result I
make the following order:
1. The Application
is dismissed.
2. No order as to
costs.
B MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
DATE OF
HEARING : 26 November 2013
DATE OF
DELIVERY : 16 May 2014
COUNSEL FOR THE
APPLICANTS : Adv. A Stokes SC
INSTRUCTED
BY :KWA Attorneys
COUNSEL FOR THE
RESPONDENT : Adv. H A de Beer SC
INSTRUCTED BY :
J A Nicolson, Stiler & Geshen