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
>>
2015
>>
[2015] ZAGPJHC 107
|
|
Rensa Engineering CC v P-Pro Construction (Pty) Ltd and Another (3643/2014) [2015] ZAGPJHC 107 (26 May 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
LOCAL DIVISION, JOHANNESBURG)
Case
No: 3643/2014
DATE:
26 MAY 2015
In
the matter between:
RENSA
ENGINEERING
CC
................................................................................
Plaintiff/Respondent
And
P-PRO
CONSTRUCTION (PTY)
LTD
.......................................................
First
Defendant/Excipient
ATTACHE
BROKERSEFENDANT
.........................................................................
Second
Defendant
JUDGMENT
FRANCIS
J
Introduction
The
plaintiff instituted an action for damages in the sum of R220 000.00
against the first defendant - Rensa Engineering
and the second
defendant – Attache Brokers on the grounds that the first
defendant had undertaken to insure the plaintiff’s
motor
vehicle which it failed to do. The plaintiff’s motor
vehicle was involved in a motor vehicle as a result of
which it was
damaged and it was uneconomical to repair it.
2.
The first defendant delivered an exception to the plaintiff’s
particulars of claim in terms of rule 23(1) of the Uniform
Court
Rules (the Rules) on the basis that it fails to disclose a cause of
action, alternatively it is vague and embarrassing.
It had
initially raised several exceptions but after the plaintiff had
amended its particulars of claim, is only proceeding with
two
exceptions.
The
relevant legal principles
3.
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.
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.
4.
It is trite that there is often a substantial overlap between
exceptions based on a vague and embarrassing complaint, and those
applicable to an application under rule 30(1) relating to the lack of
particularity required by rule 18(4).
The
principles applicable to the two procedures are different. The two
procedures 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.
5.
Rule 18(4) 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.
The principles applicable to an exception based on no cause of action
differ from one based on a vague and embarrassing complaint.
6.
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.
7.
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.
8.
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:
8.1
the question must firstly be asked whether the exception goes to the
heart of the claim, and
8.2
if so, whether it is vague and embarrassing to the extent that the
defendant does not know the claim he has to meet, and
8.3
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.
9.
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 exception
10.
In paragraph 11 of the plaintiff’s particulars of claim, the
plaintiff pleads that on or about 2 May 2011 at approximately
20h00 to 21h00 and at or near Krugersdorp on the N12 highway
Schafner, there and then driving the vehicle of the plaintiff and
duly authorised to drive it, the plaintiff was involved in a motor
collision. As a result of aforementioned collision the vehicle
of the
plaintiff was damaged beyond economical repair. The plaintiff
would have been, but for the lapsing of the insurance
policy with
ABSA Insurance Company, been insured against the risk of the
collision and would have been compensated by ABSA Insurance
Company
limited for the loss of the vehicle.
11.
In paragraph 12 the plaintiff pleads that the second defendant, as
represented therein aforesaid, neglected to have the vehicle
insured
on the first defendant’s insurance whilst it represented that
it did insure the vehicle. The second defendant
knew and/or
reasonably foresaw that the plaintiff would act on the assumption
that the representation relating to insuring of the
vehicle on the
insurance of the first defendant was factually correct and owed a
duty of care to the plaintiff. The representation
was material
and made with the intention of inducing the plaintiff to act on such
representation.
12.
The exception is that the plaintiff has failed to state who or what
was the cause of the alleged collision, or even where such
alleged
collision took place. The plaintiff has pleaded that Siegbert
Karl Schaffner was the driver of the plaintiff’s
motor vehicle,
at the time of the collision but has failed to plead whether there
were other vehicles or pedestrians involved in
the collision, the
details of such other parties or the cause of the collision.
The details of the collision and any other
party involved is vital
for the first defendant, in determining the cause of the alleged
collision, for the determination of any
apportionment of damages, if
any, alternatively, to ensure that all the relevant or interested
parties are before court.
In terms of the particulars of claim,
no detail or clarity is provided in regard to the alleged collision
and therefore the plaintiff
fails to plead the necessary facts or
facta probanda
upon which the claim of the plaintiff is based in the matter with
sufficient clarity or detail, as is required by rule 18(4).
The
plaintiff’s failure to plead in detail, makes it impossible for
the first defendant to determine the correctness of the
plaintiff’s
allegations, and therefore makes it impossible for the first
defendant to plead thereto. It further makes
it impossible for
the first defendant to determine any apportionment of damages, or
joining any and all interested parties.
As a result, the
plaintiff’s particulars of claim lacks the averments which are
necessary to sustain a valid cause of action,
alternatively, the
particulars of claim is vague and embarrassing, and the first
defendant is unable to plead thereto.
13.
It is clear from the exception filed by the first defendant that it
has clearly misconstrued the plaintiff’s claim.
The
plaintiff’s claim is that the first defendant is liable for the
damages that it has suffered as a result of its failure
to ensure
that the vehicle was insured despite having indicated that the
vehicle was insured. Paragraphs 11 and 12 clearly
identifies
the factual averments detailing respects upon which the plaintiff
relies for its conclusion of a failure on the part
of the
defendants. It is further clear from reading the particulars of
claim as a whole that the plaintiff claim is based
on a failure to
insure the vehicle. The identity of the other vehicle or driver
etc. is irrelevant to the pleaded cause of
action and does not
prevent the first defendant from pleading sensibly thereto.
There is nothing vague or embarrassing in
the manner in which the
particulars were drafted nor does it suffer from any defect.
The exception is ill-founded and stands
to be dismissed.
The
second exception
14.
In paragraphs 16 and 17 of the particulars of claim, the plaintiff
pleads that as a result of the negligent conduct of the second
defendant, alternatively the first defendant, further alternatively
the first and second defendant the plaintiff suffered damages
in the
amount of R220 000.00 being the fair and reasonable replacement
costs of the vehicle as the vehicle was damaged to
such a state
making repairs thereto uneconomical. The plaintiff is entitled
to payment in the amount of R220 000.00
and despite demand both
the first and second defendants fail and/or refuses to make payment.
15.
The exception is that the plaintiff has failed to state how the
alleged amount of damage is calculated, how the amount was derived
at, or even what the alleged damage entails. Further the
plaintiff has failed to plead how this amount is calculated, what
damage was caused to the vehicle in the alleged collision or who
determined that the repair of the vehicle was uneconomical to
repair. No proof is attached and no detail is pleaded by the
plaintiff. The plaintiff has
therefore
failed to plead the necessary facts of
facta
probanda
upon which the claim of the
plaintiff is based in the matter as is required by rule 18(4) read
with rule 18(10) as the first defendant
is unable to assess the
quantum of the damage claim thereof. The plaintiff’s
particulars of claim lacks the averments
which are necessary to
sustain a valid cause of action, alternatively, the particulars of
claim is vague and embarrassing and the
first defendant is unable to
plead thereto.
16.
This exception does not meet the test for vague and embarrassing and
should fail. The claim for damages is covered by
rule 18(10)
which does not set out the requirements of what should be pleaded in
a damages case other than bodily injuries.
The plaintiff has
pleaded that the motor vehicle has been damaged beyond economical
repair. It has also pleaded the make
and year model of the
motor vehicle In my view, there is sufficient information pleaded for
the defendant to plead sensibly thereto.
The defendant can
either dispute the damages suffered.
17.
The exceptions stand to be dismissed. There is no reason why
costs should not follow the result.
18.
In the circumstances I make the following order:
18.1
The exceptions are dismissed with costs.
FRANCIS
J
HIGH
COURT JUDGE
FOR
PLAINTIFF: C E THOMPSON INSTRUCTED BY
BERNARD
L DU PLESSIS INC
FOR
1
ST
DEFENDANT : B RIDGARD INSTRUCTED BY
BREYTENBACH
ATTORNEYS INC
DATE
OF HEARING : 13 MAY 2015
DATE
OF JUDGMENT : 26 MAY 2015