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[2015] ZAGPJHC 71
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Komatsu KVX LLC v Allied Wear Parts (Pty) Ltd (2013/44618) [2015] ZAGPJHC 71 (23 April 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2013/44618
DATE:
23 APRIL 2015
In
the matter between:
KOMATSU
KVX
LLC
.............................................................................................................
Applicant
And
ALLIED
WEAR PARTS (PTY)
LTD
...................................................................................
Respondent
JUDGMENT
A.C.
BASSON, J
[1]
This is an opposed exception in terms of
Rule 23 of the Uniform Rules of Court. The applicant is the plaintiff
in the main action
and the respondent is the defendant. I will refer
to the parties as they are cited in the main action.
[2]
The plaintiff instituted action for payment
of goods sold and delivered to the defendant in terms of a written
agreement dated 20
May 2008. On 31 July 2014 the defendant filed a
special plea, a plea on the merits and a counterclaim to the
plaintiff’s
claim. On 21 August 2014 the plaintiff delivered a
notice in terms of Rule 23(1) directing the defendant to remove the
causes of
complaint particularised in the notice within 15 days from
date of service of the notice upon it. The defendant failed to remove
the causes of complaint within the stipulated time. On 25 September
2014 the plaintiff delivered its exception to the defendant’s
plea.
First
ground of exception
[3]
The plaintiff alleges that the defendant is
liable for payment of the goods sold in terms of the “payment
arrangement”
pleaded at paragraphs 5 and 6 of the Particulars
of Claim. The goods in issue and amounts owing in respect of those
goods are reflected
in the invoices attached to the Particulars of
Claim.
[4]
The defendant admits the agreement and the
terms thereof and also admits the terms in respect of the “payment
arrangements”
that arose out of certain amendments to the
agreement.
[5]
Although the defendant admits the invoices
relied on by the plaintiff, it denies its indebtedness on the
singular basis that the
goods sold and delivered were defective and
were not fit for the purpose for which they were intended. More in
particular, the
defendant admits that it ordered new “buckets”
from the plaintiff in May 2011 but pleads that the buckets did not
achieve
the hours as represented by the plaintiff once they were put
into production in that they eroded at a rapid rate and failed
prematurely.
[6]
In addition to the buckets, the defendant
pleads that it is not indebted to the plaintiff for the reason that
the “parts”
sold and delivered were defective and not fit
for the purpose for which they were intended. No particularity is
pleaded as to why
the other goods were defective and not fit for the
purpose for which they were intended.
[7]
It is clear from the Particulars of Claim
that the plaintiff claims payment in respect of a large number and
variety of goods sold
and delivered to the defendant and not only in
respect of the buckets. In this regard it was submitted on behalf of
the plaintiff
that it is unclear from the plea how and on what basis
the defendant is entitled to resist the plaintiff’s claim for
payment
for all the other goods reflected in the invoices by only
alleging that the “buckets” were not fit for the purpose
for which it was purchased. No attempt is made to particularise the
extent, if any, to which all the other goods failed to perform.
It is
therefore, according to the plaintiff, unclear from the plea how or
on what basis the defendant can resist payment (consisting
of
numerous goods) when the complaint raised in the plea relates only to
the alleged poor performance of the buckets. The plaintiff
submitted
that this feature of the plea makes it embarrassing.
[8]
It was further submitted that the prejudice
caused by such a plea is manifest in that the manner in which the
defence has been pleaded
creates an ambiguity which makes a
meaningful response impossible.
[9]
On behalf of the respondent it was
submitted that the defendant has in any event pleaded - specifically
in relation to the attached
invoices - that it denies liability and
that any amount alleged to be owing by it has been extinguished by
its counterclaim. It
was submitted that by reading the counterclaim
the plaintiff should be fully aware of what the defendant’s
case is.
The
second exception
[10]
The defendant also pleaded that the
plaintiff had represented that the buckets would achieve certain
hours which they failed to
do once they were put into operation. The
plaintiff submits that this allegation suggests that the defendant
seeks to defend the
claim on the basis of an alleged
misrepresentation and that this defence requires a different response
to a defence based on the
breach of a tacit, alternatively, implied
term.
Principles
[11]
The
object of a pleading has been explained by the Court in
Dharumpal
Transport (Pty) Ltd v Dharumpal
[1]
as
follows:
“
The
object, of course, of all pleadings is that a succinct statement of
grounds upon which a claim is made or resisted shall be
set forth
shortly and concisely; where a statement is vague, it is either
meaningless, or capable of more than one meaning. It
is embarrassing
in that it cannot be gathered from it what ground is relied on, and
therefore it is also something which is insufficient
in law to
support in whole or in part the action or defence. . . .”
[12]
In
this matter the complaint is directed at the plea of the defendant.
It is, however, trite that defective pleadings of a plaintiff
and
that of a defendant are treated on an equal footing. See
Constantaras
v BCE Foodservice Equipment (Pty) Ltd
:
[2]
“
[32]
In an
obiter
dictum
in
Princeps
(Edms) Bpk en 'n Ander v Van Heerden NO en Andere
1991
(3) SA 842 (T)
at
845 Harms J said that in the Supreme Court an unsuccessful pleader is
given the opportunity to amend his so-called plea, even
when that
plea has been set aside because it does not disclose a defence. The
rationale
seems to be that although the defence contained in the pleading
may be bad the pleading as such continues to exist. In the
Group
Five Building
case (at 603F - H) Corbett CJ quoted with approval from
Johannesburg
Municipality v Kerr
1915 WLD 35
at 37 in which Bristowe J said that although the quashing
of an entire declaration on exception means that it is an absolute
bar
to any relief being obtained on it, that 'does not take the
declaration off the file or place the case in the same position
as though no declaration had been delivered'. Despite the
distinctions between the effects of the striking down of a
particulars
of claim and a plea to which I have earlier referred, it
seems to me that, in principle, fundamentally defective pleadings
emanating
from a plaintiff and defendant should be dealt with on an
equal footing. Since the rule referred to above is firmly
established
in relation to the defective pleading of claims we should
therefore apply it
mutatis
mutandis
to the flawed pleading of defences.”
[13]
An
exception that a pleading is vague and embarrassing strikes at the
heart of the claim or as in this case the defence. See in
this regard
Jowell
v Bramwell-Jones and Others
:
[3]
“
I
must first ask whether the exception goes to the heart of the claim
and, if so, whether it is vague and embarrassing to the extent
that
the defendant does not know the claim he has to meet…”
[14]
Some
particularity is therefore required in pleadings and it follows that
where averments in pleadings are vague and embarrassing,
alternatively lacks averments necessary to sustain a defence (as is
alleged in this case), a party is entitled to deliver an exception
to
the pleading. See in this regard
Trope
v South African Reserve Bank
[4]
where
the Court noted the following in respect of the degree of
particularity required in pleadings:
“
Rule
18(4) of the Uniform Rules of Court provides that every pleading
shall contain a clear and concise statement of the material
facts
upon which the pleader relies for his claim, defence or answer
to any pleading, with sufficient particularity to enable
the opposite
party to reply thereto.
It
is, of course, 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
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; the cause of action or defence
must appear clearly from the factual allegations
made (Harms
Civil
Procedure in the Supreme Court
at 263-4). At 264 the learned
author suggests that, as a general proposition, it may be
assumed that, since the abolition
of further particulars, and the
fact that non-compliance with the provisions of Rule 18 now (in terms
of Rule 18(12)) amounts to
an irregular step, a greater degree of
particularity of pleadings is required. No doubt, the absence of the
opportunity to clarify
an ambiguity or cure an apparent
inconsistency, by way of further particulars, may encourage
greater particularity in the
initial pleading.
The
ultimate test, however, must in my view still be whether the pleading
complies with the general rule enunciated in Rule 18(4)
and the
principles laid down in our existing case law.”
[15]
The
enquiry into whether a pleading is vague and embarrassing involves a
twofold consideration: Firstly, whether the pleading lacks
particularity to the extent that it is vague and secondly whether the
vagueness causes prejudice. See in this regard
Trope
v South African Reserve Bank
:
[5]
“
The
ultimate test, however, must in my view still be whether the pleading
complies with the general rule enunciated in Rule 18(4)
and the
principles laid down in our existing case law.
An
exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such
a nature
that the excipient is prejudiced (
Quinlan
v MacGregor
1960
(4) SA 383 (D)
at
393E-H). As to whether there is prejudice, the ability of the
excipient to produce an exception-proof plea is not the only, nor
indeed the most important, test - see the remarks of Conradie J in
Levitan
v Newhaven Holiday Enterprises CC
1991
(2) SA 297
(C)
at
298G-H. If that were the only test, the object of pleadings to enable
parties to come to trial prepared to meet each other's
case and not
be taken by surprise may well be defeated.
Thus
it may be possible to plead to particulars of claim which can be read
in any one of a number of ways by simply denying
the allegations
made; likewise to a pleading which leaves one guessing as to its
actual meaning. Yet there can be no doubt that
such a pleading is
excipiable as being vague and embarrassing - see
Parow
Lands (Pty) Ltd v Schneider
1952
(1) SA 150
(SWA)
at
152F-G and the authorities there cited.”
[16]
Pleadings
considered to be vague are either meaningless or capable of more than
one meaning
[6]
or where a
reading of the pleading leaves one guessing as to what means.
[7]
Prejudice will usually be found in the fact that a defendant is
unable to plead properly to the Particulars of Claim on account
of
the vagueness. See in this regard:
[zRPz]
Levitan
v Newhaven Holiday Enterprises CC
1991
(2) SA 297
(C):
“
Prejudice
to a litigant faced with an embarrassing pleading must ultimately lie
in an ability properly to prepare to meet his opponent's
case.”
[17]
The onus is on the excipient to show both
the vagueness and the prejudice and must do so within the ambit of
the pleadings. See
[zRPz]
Nxumalo
v First Link Insurance Brokers (Pty) Ltd
2003
(2) SA 620
(T) where the Court held as follows:
“
[6]
The
onus
is of course on the excipient to show both vagueness amounting to
embarrassment and to embarrassment amounting to prejudice. Where
the
excipient relies on embarrassment, such must be demonstrated by
having regard to the pleadings only. The attack must arise
from
within the four walls of the pleading which is the source of the
complaint and what is more, such embarrassment must
not be
frivolous, it must be substantial. See in this regard
Lockhat
and Others v Minister of the Interior
1960
(3) SA 765 (D)
at
777B - H. Therefore, the ultimate test on whether an exception should
be upheld is whether the excipient is prejudiced. In this
regard see
for instance
Levitan
v Newhaven Holiday Enterprises CC
1991
(2) SA 297
(C)
at
298A - J. “
[18]
More in particular in respect of a plea, if
the pleading lacks averments which are necessary to justify a defence
and where the
excipient will be seriously prejudiced by a lack of
particularity, an exception should be upheld. In this regard it was
submitted
that the defence raised in respect of the other goods is
capable of two meanings and that the plaintiff is prejudiced in that
it
is unable to properly prepare to meet its opponent’s case.
Merits
[19]
In respect of the second exception I have
indicated to the plaintiff during argument that I am not persuaded
that this exception
has any merit. The defendant has elected to plead
that there was an implied term to the agreement and has therefore
pinned its
colours to the mast. The plaintiff knows what the defence
is and can easily plead thereto without embarrassment or prejudice.
[20]
In respect of the first exception I am
persuaded that the defendant only provides particulars of the extent
to which the buckets
were not fit for purpose. No similar particulars
are provided of the extent to which the rest of the goods were not
fit for the
purpose for which they were purchased. I am in agreement
that it is unclear on what basis the defendant can resist payment of
the
entire claim consisting of numerous goods when self-evidently the
complaint relates only to the alleged poor performance of the
buckets. I am further persuaded that the prejudice caused by such
plea is obvious: The plaintiff cannot ascertain with any degree
of
certainty if it should investigate whether all the goods sold to the
defendant were inferior or whether it should limit its
enquiries to
the buckets only as no particularity is provided regarding the
alleged inferiority or unsuitability of the remaining
goods. In the
premises I am persuaded that the first exception should succeed.
[21]
In the circumstances the following order is
made:
1.
The first exception is upheld with costs.
2.
The second exception is dismissed.
3.
The respondent is granted leave to amend
its plea within a period of 20 days from date hereof.
A.C.
BASSON
JUDGE
OF THE HIGH COURT
GAUTENG
LOCAL DIVISION
Counsel
for the Applicant: Adv M. Seape
Counsel
for the Respondent: Adv C. Georgiades
Attorney
for the Applicant: Cliffe Dekker Hofmeyr Inc
Attorney
for the Respondent: Honey Attorneys
Argument
took place on 20 April 2015
Judgment
was delivered on 23 April 2015
[1]
1956
(1) SA 700 (A)
at
705D
[2]
2007
(6) SA 338
(SCA) at 349A-B
[3]
1998
(1) SA 836
(w) at 905E-F
[4]
1992
(3) SA 208
(T) at 211A – E
[5]
Ibid
at
211A – E
[6]
Lockhat
and Others v Minister of the Interior
1960
(3) SA 765
(d) at 777D
[7]
Nasionale
Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ingelyf en
andere
2001
(2) SA 790
(T)