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2015
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[2015] ZAGPJHC 252
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Egoli Gas (Pty) Limited v Epic Foods (Pty) Limited (31944/2014) [2015] ZAGPJHC 252 (18 September 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
no:
31944/2014
DATE:18
SEPTEMBER 2015
In
the matter between:
EGOLI
GAS (PTY)
LIMITED
...................................................................................................
Plaintiff
And
EPIC
FOODS (PTY)
LIMITED
.............................................................................................
Defendant
JUDGMENT
KATHREE-SETILOANE
J:
[1]
This judgment concerns an exception to the plaintiff’s
particulars of claim on the basis that the allegations contained
therein are vague and embarrassing and that it lacks averments which
are necessary to sustain a cause of action. The defendant
has raised
seventeen exceptions, which are set out in detail in the exception. I
will deal with the complaints raised in each of
these exceptions in
turn below.
[2]
As the excipient in this matter, the defendant has the duty to
persuade the Court that upon every interpretation which the
particulars of claim could reasonably bear, no cause of action is
disclosed and that the exception will finalise the case in whole
or
in part, and avoid the leading of unnecessary evidence at the
trial.
[3]
In so far as the defendant excepts to the particulars of claim on the
basis that the allegations contained therein are vague
and
embarrassing, it is required to demonstrate that the particulars of
claim lacks particularity amounting to vagueness which
causes
embarrassment, and that the embarrassment is of such a nature as to
cause serious prejudice to it if the offending allegations
are not
expunged. Thus, for the defendant to succeed in the exception, it is
required to demonstrate that the vagueness relates
to the cause of
action, since an exception that a pleading is vague and embarrassing
is not directed at a particular paragraph
within a cause of action
but it goes to the whole cause of action − which must be
demonstrated to be vague and embarrassing.
The
nature of the plaintiff’s claim
[4]
In this action, the plaintiff sues the defendant for the alleged use
of “unmetered/stolen gas” The cause of action
is based on
a clearly pleaded written agreement, which was entered into between
the parties during or about October 2000, alternatively
a tacit
agreement. The conduct from which the tacit agreement can be inferred
is pleaded as well. It is alleged that, pursuant
to the relevant
agreement, the plaintiff was to supply piped distributed gas to the
defendant at its usual price. Liability did
not depend on metering or
measuring but on consumption. It is further alleged that gas was in
fact supplied/consumed and the relevant
invoices are referenced. An
outstanding balance in the amount of R1 295 541.52 is
alleged.
EXCEPTION
1
[5]
In paragraph 3 of the particulars of claim, the plaintiff relies on a
written agreement entered into between the parties during
or about
October 2000 (“the supply agreement”). In paragraph 1 of
the particulars of claim, the plaintiff is, however,
identified as a
company duly registered and incorporated in terms of the Companies
Act No 61 of 1973, with registration number
2006/009700/07. The
defendant contends that it is plain from paragraph 1 of the
particulars of claim that the plaintiff company
was only registered
in 2006, but the plaintiff avers that a contract was entered into
between the plaintiff and the defendant in
October 2000. The
defendant submits that this contradiction makes the plaintiff’s
particulars of claim excipiable on the
basis that it does not
disclose the plaintiff’s
locus
standi
to sue.
[6]
There is no merit in this exception as the contents of paragraph 1 of
the particulars of claim relate to evidence. The
registration
and incorporation of the Plaintiff are a matter for evidence –
any number of reasons may present themselves
that could explain the
apparently incorrect registration number. In addition, the allegation
in paragraph 3 is to the effect that
the written agreement existed at
all material times. These material times appear from a reading of the
particulars of claim as
a whole to be March to May 2014. During that
time period the plaintiff (on a reasonable interpretation) was a duly
registered and
incorporated entity. In any event the exact nature of
the legal personality of the plaintiff prior to 2006 and the
existence or
otherwise of the written agreement relied upon can be
challenged in the plea as the particulars of claim are sufficiently
particularised.
Importantly, in this regard, objections to
locus
standi
of a litigant to sue are more properly taken by way of a plea than by
exception.
[1]
Accordingly,
in my view, nothing in paragraphs 1 and 3 of the particulars of claim
is vague, or if vague, so vague as to cause serious
embarrassment.
Exception
2
[7]
In paragraph 4 of the plaintiff’s particulars of claim, the
plaintiff avers that when entering into the agreement, “…
the
parties were represented by authorised officials”.
The
defendant’s complaint is that the particulars lack a clear and
concise statement of the identity of the representative
of the
parties to the agreement. It submits that because this is a material
fact, which is required by the defendant to plead,
the particulars of
claim are non-compliant with Rule 18(4) of the Uniform Rules of
Court, and thus excipiable.
[8]
There is no merit in this complaint, because it is common practice to
refer to authorised officials who acted in a representative
capacity.
Further particulars regarding the representatives of the parties may
be furnished subsequent to a request for further
particulars and/or
may be traversed in the course of evidence. It can be dealt with in
the plea by admission and/or confession
and avoidance by for instance
a denial of authority. I am accordingly of the view that nothing in
paragraph 4 of the particulars
of claim is vague, or if vague, so
vague as to cause serious embarrassment.
Exception
3
[9]
The plaintiff avers that a tacit supply agreement came into existence
as a result of the circumstances set out in paragraphs
8.1 to 8.15 of
the particulars of claim. The defendant contends that none of the
facts pleaded in paragraph 8.1 to 8.15 of the
particulars of claim
supports the averments of the coming into existence of a tacit supply
agreement entitling the plaintiff to
payment in respect of unmetered
gas, as pleaded in clause 7.3 of the plaintiff’s particulars of
claim. Therefore, it submits
that the particulars of claim lacks
averments which are necessary to sustain the conclusion that a tacit
agreement with the terms
as pleaded in clause 7.3 of the particulars
of claim, came into existence.
[10]
A written agreement may contain tacit terms. In pleading a tacit term
a party need not provide further particulars except for
the written
agreement on which it relies. The defendant consequently has
sufficient information available to plead to the allegations
contained in paragraph 6 of the particulars of claim. I am
accordingly of the view that nothing is vague, or if vague, so vague
as to cause serious embarrassment.
Exceptions
4 and 5
[11]
Clause 3.1 of the supply agreement, which is attached to the
plaintiff’s particulars of claim, regulates the applicable
tariff for supplied gas. It reads as follows:
‘
The
tariffs applicable to the supply of gas of the amount as per the
quote for a new quotation…’
In
paragraph 6.2 of the plaintiff’s particulars of claim, the
plaintiff pleads that:
‘
[T]he
initial tariffs applicable to the supply of gas is the initial quote
for a new connection…’
The
defendant submits that while clause 3.1 of the supply agreement fixes
the price for gas at an amount determined by the tariffs
applicable
at the time of a new quotation, paragraph 6.2 of the plaintiff’s
particulars of claim introduces the word “initial”
into
the equation which clearly suggests the applicable tariff of the new
quotation to be subject to subsequent changes. The defendant
contends
that if paragraph 6.2 of the plaintiff’s particulars of claim
is read together with paragraph 6.3 thereof, which
reads “
[t]he applicable tariff from time to time would be the Plaintiff’s
usual price applicable from time to time
in respect of the industrial
supply of natural piped distributed gas”, it is clear that the
plaintiff relies on an entitlement
to amend the applicable tariff
“from time to time”. The defendant accordingly contends
that there is a contradiction
between the plaintiff’s
particulars of claim and the supply agreement relied upon in support
of the averments contained in
the particulars of claim, thus making
the particulars of claim vague and embarrassing and hence excipiable.
[12]
As pointed out by the plaintiff, the complaint raised in this
exception appears to focus on a slight difference in wording
between
the actual clause 3.1 of the agreement and the way the clause is
pleaded in the particulars of claim. This complaint, in
my view, does
not go to the root of the cause of action, and is therefore not
excipiable. Paragraph 6 of the particulars of claim
clearly includes
tacit terms in sub-paragraphs 6.3. and 6.11. Therefore, in so far as
the pleaded wording in the particulars of
claim differs from the
actual wording in the agreement, it can reasonably be regarded as
tacit. However, on consideration of paragraph
6 of the particulars of
claim as a whole, it is clear that the tariffs were to be based on
the plaintiff’s usual price.
[13]
The tacit term pleaded in paragraph 6.3 of the particulars of claim
relates to tariffs applicable from time to time, whereas
clause 3.1
of the written agreement relates to a quote for an initial tariff. A
tariff applicable from time to time may include
an initial tariff.
There is consequently no conflict between the written agreement and
the particulars of claim or between paragraphs
6.2 and 6.3 thereof.
This tacit term pleaded in paragraph 6.3 is in any event not a term
which can be interpreted at the exception
stage, as courts are
reluctant to decide upon exception, questions concerning the
interpretation of a contract. I am, therefore,
of the view that there
is nothing vague, or if vague, so vague as to cause serious
embarrassment.
Exceptions
6 and 7
[14]
In paragraph 6.4 of the plaintiff’s particulars of claim, the
plaintiff pleads that the defendant would be presented
with a monthly
invoice for gas consumption which invoice “…
would
serve as written record on which the Defendant would find…”
specific information. The particulars of claim list a number of
items of information that would allegedly appear on the invoices.
The
plaintiff relies on clause 3.2 of the supply agreement in support of
the averment contained in this paragraph of the particulars
of
claim. In paragraphs 9 and 11, the plaintiff then quantifies
the value of the “metered gas” and “unmetered/stolen
gas” with reference to “pro forma” invoices.
However, the defendant’s complaint is that the attached
invoices,
namely “POC2”, “POC3”, “POC4”
and “POC5” respectively, do not contain the particularity
as pleaded in paragraph 6.4 of the plaintiff’s particulars of
claim.
[15]
The complaint in this exception appears to be that the pro-forma
invoices attached to the particulars of claim lack particularity
as
required by clause 3.2 of the written agreement. I agree with the
contention of the plaintiff that pro-forma invoices do not
equate to
the invoices contemplated in clause 3.2 of the agreement. They are
merely illustrative of the cause of action. Actual
invoices may be
discovered and proved. As such the complaint is totally vacuous.
[16]
Moreover, and as a matter of interpretation, the contents of clause
3.2 of the agreement are
prima facie
merely directory and consequently the
invoices attached to the particulars of claim (even if actual and not
pro-forma) may be addressed
in the plea without the necessity of
clarification and/or amendment to the particulars of claim. In any
event and as indicated
previously, the correct interpretation of
clause 3.2 of the supply agreement cannot be determined at the
exception stage. I am
accordingly of the view that the complaint does
not go to the root of the cause of action, and that nothing in
paragraph 6.4 of
the particulars of claim is vague, or if
vague, so vague as to cause serious embarrassment.
Exception
8
[17]
In paragraph 6.6 of the particulars of claim, the plaintiff avers
that the quantity of gas for which the plaintiff had to be
paid would
be determined with reference to the meter applicable to the supply
point which would constitute conclusive evidence
of the quantity of
the gas consumed at the supply point. The defendant complains that
this term of the supply agreement is
in conflict with the
averment in paragraph 6.11 of the particulars of claim in which the
plaintiff avers that the defendant would
be liable for gas consumed
“…through unauthorised means…”. The
defendant contends that the plaintiff’s
particulars of claim
discloses no basis for the alleged tacit term of the agreement and
conflicts with the written supply agreement.
The defendant
accordingly contends that the plaintiff’s particulars of claim
lacks averments necessary to sustain the claim
and/or is vague and
embarrassing.
[18]
I am of the view that there is no conflict between the terms pleaded
in paragraph 6.6 and 6.11 of the particulars of claim.
Clause
5.1 of the agreement (which is pleaded in paragraph 6.6 of the
particulars of claim) relates to an evidentiary mechanism
whereas
6.11 of the particulars of claim relates to liability for
unauthorised gas usage. As pointed out by the plaintiff, clause
5.1
is, in any event, not applicable where the meter is found to be
inaccurate. Theft of gas will result in an inaccurate reading.
This
complaint is therefore without merit, as it does not go to the root
of the cause of action, and nothing in paragraphs 6.6
and 6.11 of the
particulars of claim is vague, or if vague, so vague as to
cause serious embarrassment.
Exception
9
[19]
The plaintiff relies on a written supply agreement, which was entered
into between the authorised officials of the parties.
The purported
agreement attached to the plaintiff’s particulars of claim as
“POC1” contains no signature of any
of the parties. The
complaint of the defendant is that the plaintiff’s particulars
of claim lacks averments in support of
the plaintiff’s reliance
on an unsigned written agreement having been entered into between the
parties, and for that reason
the plaintiff’s particulars of
claim are vague and embarrassing or lack the averments necessary to
sustain the plaintiff’s
action.
[20]
I am of the view that the complaint raised in this exception has no
legal foundation because a written agreement does not have
to be
signed in order to be valid and enforceable. This is a matter for
evidence regarding consensus. Importantly, in this regard,
a writing
which embodies the agreement of the parties and to which both have
expressly consented but have not signed is as capable
of being
described as a written contract as one which is signed by both
parties. The signing of the writing is merely one way of
signing
assent to its terms. Notably, a contract is required to be reduced to
writing and signed by both parties only where the
parties make that a
requirement for the existence of their contract. Accordingly, I find
that the complaint does not go to the
root of the cause of action and
nothing is vague, or if vague, so vague as to cause serious
embarrassment.
Exception
10
[21]
In paragraph 6.10 of the particulars of claim, the plaintiff avers
that “…
the defendant would
be informed in writing of the new price …of gas during the
existence of the supply agreement.”.
The
defendant’s complaint is that the plaintiff’s particulars
of claim lack any averments from which the initial price
and the
averred “new price” are to be determined. In addition,
the defendant contends that the plaintiff’s particulars
of
claim lack any averment of the defendant having received a written
notice of a new price for gas supplied. The defendant accordingly
submits that the plaintiff’s particulars of claim lack
averments which are necessary to sustain the action.
[22]
The contents of clause 5.5 (pleaded in paragraph 6.10 of the
particulars of claim) deals with informing the defendant about
a
price increase. As such, clause 5.5 is inapplicable as no price
increase has been pleaded. Clause 5.5 is in any event merely
directory. In so far as a price increase may have occurred it is
clear from the particulars of claim as a whole that it would still
resort under the rubric of the plaintiff’s usual price.
Accordingly, I am of the view that the complaint does not go to the
root of the cause of action and nothing is vague, or if vague, so
vague as to cause serious embarrassment.
Exception
11
[23]
In paragraph 7 of the plaintiff’s particulars of claim, the
plaintiff avers as a second alternative to its reliance on
a written
agreement, that a tacit supply agreement came into existence. The
defendant’s complaint is that the plaintiff’s
particulars
of claim lack the averments to support the coming into existence of
such an alleged tacit supply agreement within the
ambit of the terms
pleaded in paragraphs 7.1, 7.2 and 7.3 of the plaintiff’s
particulars of claim, and therefore the plaintiff’s
particulars
of claim are vague and embarrassing and/or lack averments that are
necessary to sustain the action.
[24]
There is no merit to this complaint as the contents of paragraph 7 of
the particulars of claim are unobjectionable. It
broadly
delineates the existence and origin of a tacit agreement as well as
its terms. The particulars of claim as a whole
make clear what
conduct will be used to establish the existence of a tacit agreement.
In this regard, full particulars are provided
in paragraph 8 of the
particulars of claim. Accordingly, I am of the view that the
complaint does not go to the root of the cause
of action and nothing
is vague, or if vague, so vague as to cause serious embarrassment.
Exceptions
12 and 13
[25]
In paragraph 7.3 of the particulars of claim, the plaintiff avers, in
the alternative and in the event of it being found that
a written
supply agreement did not come into existence, that all consumed gas,
whether metered or not, would become due and payable
in accordance
with the plaintiff’s usual price. The defendant contends that
the plaintiff’s particulars of claim lack
averments which
are necessary to sustain these allegations as no facts are pleaded on
which a tacit supply agreement with these
terms came into existence,
thus making the plaintiff’s particulars of claim excipiable.
[26]
In addition the defendant contends with reference to paragraphs 6, 7
and 8 of the plaintiff’s particulars of claim that
the
plaintiff is relying on actions of the defendant that, if proven, may
support a claim based on delict, but the plaintiff
is, however,
suing the defendant in contract. For these reasons, the defendant
contends that the plaintiff’s particulars
of claim are vague
and embarrassing and/or lack the averments necessary to sustain the
plaintiff’s action.
[27]
These complaints are lack substance, because as correctly pointed out
by the plaintiff, the tacit agreement adequately covers
the
consumption of unmetered gas by virtue of the allegation of a term
that the defendant would be liable for the consumption of
any gas
supplied via the plaintiff's system. On a reasonable interpretation
of the particulars of claim, it is clear that such
consumption
includes unmetered consumption. There exists no need for a delictual
claim – it is in any event the plaintiff’s
prerogative to
choose its remedies. There is consequently no merit in this
complaint. In any event the complaint does not go to
the root of the
cause of action and nothing is vague, or if vague, so vague as to
cause serious embarrassment.
Exception
14
[28]
The plaintiff claims payment in respect of unmetered gas consumed.
Paragraph 9 of the plaintiff’s particulars of claim,
however,
contains particularity of the quantification of the metered gas. The
defendant’s complaint is that when paragraph
9 is read together
with the remainder of the plaintiff’s particulars of claim, it
becomes clear that the particulars of claim
convolute the defendant’s
liability with regard to metered gas and its liability in respect of
unmetered/stolen gas. The
contention thus advanced is that the
plaintiff’s particulars of claim contain multiple irrelevant
averments which confuse
the issue and causes embarrassment to the
defendant. Accordingly, the defendant submits that the plaintiff’s
particulars
of claim are excipiable.
[29]
The plaintiff contends that in order to calculate an amount due and
payable in respect of specified gas consumption it is inevitable
and
essential to adequately calculate all payments received in respect of
all gas supplied, and it is, therefore, necessary, to
allege and
prove supplies and payment in respect of such supplies consequent
upon both metered and unmetered gas. I agree. Accordingly,
I find
that the complaint does not go to the root of the cause of action and
nothing is vague, or if vague, so vague as to cause
serious
embarrassment.
Exception
15
[30]
Paragraphs 10 and 11 of the plaintiff’s particulars of claim
seek to quantify the unmetered/stolen gas consumption. The
defendant,
however, contends that these paragraphs lack any averments on which
the quantification of the unmetered gas use is based
and therefore
lacks averments which are necessary to sustain the claim, thus making
the averments in these paragraphs excipiable.
[31]
The contents of paragraphs 10 and 11 of the particulars of claim are,
in my view, matters for evidence, and they are adequately
pleaded for
the purposes of preparing a plea. Accordingly, I find that this
complaint does not go to the root of the cause
of action and
nothing in paragraphs 10 and 11 of the particulars of claim is
vague, or if vague, so vague as to cause serious
embarrassment
Exception
16
[32]
In paragraph 13 of the plaintiff’s particulars of claim the
plaintiff avers that the amount outstanding to the plaintiff
totals
R1,295,541.52. However, in paragraph 14 of the plaintiff’s
particulars of claim the plaintiff avers that the defendant
is owing
an amount of R1, 296,401.37 to the plaintiff. The defendant complaint
is that because of the discrepancy in these two
figures, the
plaintiff’s particulars of claim are vague and embarrassing.
[33]
As contended for by the plaintiff, on any reasonable interpretation
of these paragraphs in the particulars of claim, and when
particular
regard is had to the calculation and prayers therein, it is obvious
that the figure in clause 14 is a typographical
error. The complaint
does not, in my view, amount to an excipiable failing of the
particulars of claim as it does not go to the
root of the cause of
action and nothing is vague, or if vague, so vague as to cause
serious embarrassment. In any event, oral application
can be made at
any time (for instance at the hearing) to correct the figure of R1
296 401.37 in paragraph 14 to read R1 295 541.52.
Exception
17
[34]
With reference to prayer (b) of the plaintiff’s particulars of
claim, the defendant’s complaint is that it is unclear
on what
basis the plaintiff claims that the payment claimed became due from
the 1
st
July 2014. Accordingly, the defendant contends that the plaintiff’s
particulars of claim are vague and embarrassing.
[35]
There is no merit in this complaint as the contents of prayer “b”
of the particulars of claim are a matter for
evidence. Accordingly, I
am of the view that the complaint does not go to the root of the
cause of action and nothing is vague,
or if vague, so vague as to
cause serious embarrassment.
[36]
In the premises, I find that the defendant has failed to discharge
the duty to make out a case that no cause of action is disclosed
on
any interpretation of the particulars of claim. In my view, the
particulars of claim reasonably bears only one interpretation,
namely
that a cause of action is disclosed based on an agreement of sale.
Simply put: goods were sold and delivered. The exception
accordingly
falls to be dismissed with costs.
[
37
]
In the result, I make the following order:
(1)
The exceptions are dismissed.
(2)
The defendant is ordered to pay the
plaintiff’s costs.
F
KATHREE-SETILOANE
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Counsel for the
Plaintiff: Mr Clive van der Spuy
Instructed
by: Lanham-Love Attorneys
Counsel
for the Defendant: Mr D Dorfling SC
Instructed
by: ST Attorneys (Sikander Tayob)
Date
of Hearing: 28 July 2015
Date
of Judgement: 18 September 2015
[1]
Edwards
v Woodnutt
,
N.O. 1968(4) SA 184 (R) at 186C-H.