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[2015] ZAGPJHC 238
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RolandoElectrical CC v Munaka General Trading (Pty) Ltd and Others (2011/6076) [2015] ZAGPJHC 238 (16 October 2015)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NUMBER: 2011/6076
DATE: 16 OCTOBER 2015
In the matter between:
ROLANDO ELECTRICAL
CC
.................................................................................................
Plaintiff
AND
MUNAKA GENERAL TRADING (PTY)
LTD
............................................................
First
Defendant
UBUHLUBETHU BUSINESS ENTERPRISE
CC
..................................................
Second
Defendant
MUNAKA UBUHLUBETHU JOINT
VENTURE
.....................................................
Third
Defendant
JUDGMENT
STRAUSS, AJ:
INTRODUCTION
1. The plaintiff instituted action
against all defendants during 2011. All three defendants pleaded to
the claim. Thereafter the
plaintiff amended its particulars of claim
the first time on 18 June 2013 by including further claims, i.e.
claims (A) to (E).
2. The second defendant hereafter filed
a notice of exception and a Rule 30(1) irregular step application on
25 July 2013, containing
eleven grounds of exception.
3. Plaintiff effected amendments to the
first particulars of claim. Hereafter a second notice in terms of
Rule 23 was filed in
August 2013. Plaintiff again elected to amend
its particulars of claim. Second defendant thereupon filed its third
notice in
terms of Rule 23(1) dated January 2014 containing 16
grounds of exception.
4. When the matter was enrolled or
hearing on 4 August 2015, the exceptions had not been heard and the
parties proceeded to enrol
the matter for hearing of the exceptions
and Rule 30(1) application on the opposed roll.
5. The second defendant maintains that
the plaintiff has failed to remove the causes of complaint and prays
for either an order
that the exception be upheld, if not, that the
Rule 30(1) is upheld and that the particulars of claim are struck and
the plaintiff
is given an opportunity to amend its particulars of
claim once again.
6. The defendants have raised 16
grounds of exception of which the 8th, 13th and 15th were not
proceeded with and the 14th ground
was abandoned during argument.
7. Considering the wide ambit of the
grounds of exception, it is useful to state the legal principles
relating to pleadings and
exceptions thereto.
8. The principles relating to
exceptions:
An exception that a pleading is vague
and embarrassing strikes at the formulation of the cause of action
and its legal validity.
It is not directed at a particular paragraph
within a cause of action, but at the cause of action as a whole,
which must be demonstrated
to be vague and embarrassing. As was
stated in Jowell v Bramwell - Jones & Others 1
998 (1) SA 836
(W)
905 E – H.
“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.”
9. Vagueness amounting to embarrassment
and embarrassment in turn resulting in prejudice must be shown.
Vagueness would invariably
be caused by a defect or incompleteness in
the formulation and is therefore not limited to an absence of the
necessary allegation,
but also extends to the way in which it is
formulated. An exception will not be allowed, even if it is vague
and embarrassing,
unless the excipient will be seriously prejudiced
if compelled to plead to pleadings against which the objection lies.
10. The approach to be adopted and
applicable considerations were described as follows in Trope v South
African Reserve Bank
1992 (3) SA 208
(T) at 221A – E.
“An exception to a pleading on
the ground that it is vague and embarrassing involves a twofold
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 McGregor
1964 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, or indeed the most
important, test. (See the remarks of Conradie, J in Levitan v New
Haven 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, prepare to meet
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 the actual meaning. Yet, there can
be no doubt that such a pleading is excipiable as being vague and
embarrassing”.
“It follows that averments in the
pleading which are contradictory and which are not pleaded in the
alternative are patently
vague and embarrassing: one can but be left
guessing as to the actual meaning, if any, conveyed by the
pleadings.”
“Rule 18[4] imposes a “Goldilocks
test” in the sense that it requires a balance between too few
and too many allegations.
Too few allegations could render it
excipiable for lack of the necessary averments whilst too many create
the risk that unnecessary
allegations could render the pleading vague
and embarrassing”
“A pleading should not contain
matter irrelevant to the claim. The facts whereon a plaintiff relies
should be concisely stated
in his particulars of claim and these
facts only, and no other, should be pleaded. However, for the sake of
clarity it is sometimes
necessary to plead history. The pleader
should do this with caution. Unless such history is clearly severed
from the cause of action
the pleading may be rendered vague and
embarrassing.” See: Secretary for Finance v Esselmann 1988 [1]
SA 594 SWA at 597G-H
11. The significance and requirements
of Rule 18[4] were commented on in Trope supra:
“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 defense 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
12. These exception requires a
consideration of what is required of pleadings, and in particular
particulars of claim, to meet the
requirements of Rule 18[4] which
seems to postulate two basic requirements, both of which need to be
met constitute compliance
with Rule 18[4]. The first requirement
[i.e. that the pleading should contain the “… material
facts upon which the
pleader relies for his claim”] relates to
the substance of a pleading. The second requirement [i.e. that it
should consist
of a “…clear and concise statement…”
of “…sufficient particularity to enable the opposite
party to reply thereto”] deals with way in which a pleading
should be formulated. Each of the requirements is dealt with
separately hereunder.
13. The “…material facts
upon which the pleader relies for his claim”
The first requirement poses the
question as to what “…material facts…” are.
It requires a pleading to
disclose a cause of action or defense as
the case may be, even if this may not be expressly stated in Rule
18[4]. Rule 18[4] is
however interpreted and applied as requiring
that a cause of action must be contained in the pleading. See:
Makgae v Sentraboer
[Koöperatief] Bpk 1981 [4] SA 239 T at 244C.
14. The term “cause of action”
was defined in McKenzie v Farmers’ Co-operative Meat Industries
Ltd
1922 AD 16
at 23 as “…"every fact which it
would be necessary for the plaintiff to prove, if traversed, in order
to support
his right to the judgment of the Court. It does not
comprise every piece of evidence which is necessary to prove each
fact, but
every fact which is necessary to be proved."
15. In Evins v Shield Insurance Co Ltd
1980 [2] SA 814 A at 825G it was said that “cause of action “…
is ordinarily
used to describe the factual basis, the set of material
facts, that begets the plaintiff's legal right of action.”
16. The requirement that a cause of
action be contained in a pleading can and should therefore be read
into the words “material
facts”, which would in turn
imply that only facts which serve to establish the cause of action
would be regarded as “material”.
The converse also
applies, namely that allegations that do not serve to establish the
cause of action would not qualify as being
“material”.
17. The need to distinguish between
facta probanda and facta probantia is a further aspect of the
requirement that material facts
only be pleaded. Is set out in
Makgae supra at 244C-H. Facta probanda should be distinguished from
“pieces of evidences”
[facta probantia] required to prove
the true facta probanda. King's Transport v Viljoen
1954 (1) SA 133
(K) at 138 – 139] Dusheiko v Milburn
1964 (4) SA 648
(A) at
658A.
18. The Facta probantia has no place in
a pleading and the contents of any pleading should be restricted to
those facts only which
serve to establish the cause of action,
excluding any evidence required to prove them.
19. This first requirement of necessity
puts the pleader’s legal knowledge of what the necessary
allegations or essential
elements are to sustain a cause of action to
the test;
“clear and concise statement…”
of “…sufficient particularity to enable the opposite
party to reply
thereto”
20. Whereas the first requirement
concerns itself with the substantive law, the second requirement
relates to the formulation and
structure of the pleading in
determining whether the pleading contains a “…clear and
concise statement…”
of “…sufficient
particularity to enable the opposite party to reply thereto”.
See : Imprefed [Pty] Ltd v National
Transport Commission 1993 [3] SA
94 A at 107C – E
21. Aside from carefully formulating
sentences and choosing the language the structure of a pleading will
be determinative whether
it meets the requirements of conciseness,
lucidity, logic, clarity and precision. Pleadings that are “…a
rambling
preview of the evidence proposed to be adduced at the
trial…” do not meet the requirements of clause 18[4] and
would
be excipiable as being vague and embarrassing. See Moaki v
Reckitt and Colman [Africa] and another 1968 [3] SA 98 A at 102A-B;
22. It follows that the more complex
the matter is the greater would be the demands for conciseness,
lucidity, logic, clarity and
precision. See; Swissborough Diamonds
Mines [Pty] Ltd and others v Government of the Republic of South
Africa and others 1999 [2]
SA 279 T at 324C.
23. The grounds of exception are to be
considered having regard to what has been stated in Alpidi
Investments v Green Tops (Pty)
Ltd at 161H – 162A.
“The court is inclined to look
benevolently at pleadings especially in the Magistrate’s Court
so that substantial justice
need not yield to technicalities. Such a
view was expressed, inter alia, in Odendaal v Van Oudtshoorn
1968 (3)
SA 433
(T) at 436D. Nevertheless, the issues as defined by the
pleadings must not be lost sight of and a party cannot rely on causes
of action or on defences which are not in put in issue and were
consequently not fully investigated.”
24. In Spearhead Property Holdings v ED
Motors (Pty) Ltd 2010 (2) SA (SCA) at 15A – 16A it was stated
that:
“It is equally trite that since
pleadings are made for the court and not the court for the pleadings,
it is the duty of the
court to determine the real issues between the
parties, and provided no possible prejudice can be caused to either,
to decide the
case on those real issues.”
THE PLAINTIFF’S CLAIMS
25. I now proceed to assess the
particulars of claim in this matter having regard to the requirements
set out above. The plaintiff
in this action has instituted five
claims against the defendants and seeks payment from against the
first, second and third defendants
and/or the joint venture, jointly
and severally, the one to pay the other to be absolved.
26. In the first claim, Claim A, the
plaintiff seeks payment for a shortfall payment made by the joint
venture to the plaintiff,
which shortfall was calculated excluding
amounts contained in claim (b) and (c).
27. The second claim, Claim B, is the
re-measurement claim based on an oral agreement in terms whereof the
plaintiff had to re-measure
a bill of quantities and the total
re-measurement was verified and the plaintiff claims the difference
between the re-measurement
of quantities, and amount allowed for by
the engineer. The joint venture accepted liability for payment of the
re-measurement amount,
it is pleaded.
28. The third claim, Claim C, is a
stolen material claim, also based on an oral agreement between the
joint venture and the plaintiff
in terms whereof the plaintiff
replaced stolen material and rendered invoices to the joint venture
for payment of work and replacement
such material.
29. The fourth claim, Claim D, is based
on an oral agreement once again for the supply of additional
temporary electrical installations
for which the plaintiff rendered
an invoice to the joint venture and which the joint venture failed to
pay.
30. The last claim, Claim E, is a
variation orders claim, also based on the oral agreement between the
joint venture and the plaintiff
as the plaintiff had effected certain
variations to the requirements in terms of the alterations to the
JBCC agreement, and delivered
invoices for such variations completed,
the joint venture did not make payment as agreed.
31. The total amount of all five claims
of the plaintiff amount to R2, 387,545.78.
32. The particulars of claim contain 70
paragraphs, some of which having sub-paragraphs comprising a total of
29 typed pages.
33. The defendants raised a total of 16
grounds of exception against the plaintiff’s particulars of
claim some of which they
say renders it vague and embarrassing and
some of the claims according to the defendants failed to disclose a
cause of action.
34. Twelve of the sixteen grounds were
persisted with. The grounds of exception are dealt with in sequence
in which they were raised
and some are conveniently considered
together.
35. The plaintiff in its particulars of
claim sets out in the first 33 paragraphs thereof the background and
the appointment of
the plaintiff as a subcontractor. The plaintiff
in essence has for the sake of clarity, pleaded the history of the
third defendant
entering into a Principal Building Agreement with
other parties in terms of a Johannesburg Building and Construction
Contract,
later referred to as the JBCC agreement.
36. The plaintiff pleads that he was
not a party to this JBCC agreement, but nevertheless incorporates the
applicable terms of the
JBCC agreement in its particulars of claim.
The plaintiff sets out the appointment of a subcontractor, one
Mithro, and in terms
whereof Mithro Construction Management was
required to give effect to contract instructions pertaining to the
project previously
entrusted to the third defendant. Mithro
contracted the plaintiff to perform certain alterations to the
existing buildings, specifically
the installation of electrical
reticulation and also the re-measurement of the original bill of
quantities and other requested
services.
37. Therefore, in the first 33
paragraphs the plaintiff does not set out any cause of action against
the defendants and simply pleads
the history and on this score alone
the court must state that the history is clearly not severed from the
cause of action and is
necessary to bring the court attention to the
claims of the plaintiff against the defendants.
38. The plaintiff therefore in these
paragraphs sets out the parties, the citation, the background of how
the joint venture was
formed and for what reason and also the Mithro
appointment of the subcontractor, and thereafter the appointment of
the plaintiff
in terms of the Mithro appointment. The plaintiff also
sets out the claim procedure used by the plaintiff in order to
receive
payment from the joint venture, it has some similarities with
the claim procedure set out in the JBCC agreement.
39. The plaintiff also in these
paragraphs sets out that at all times the plaintiff was appointed by
the joint venture on or about
23 July 2009 following a meeting held
between the representatives of the plaintiff and the joint venture in
Pretoria and pleads
the implicit, implied, and tacit terms of the
oral agreement between the parties.
40. The first five exceptions taken by
the second defendant in this matter were taken against facts pleaded
by the plaintiff contained
in paragraphs 1 to 33. Thus the exception
is not directed against a cause of action of the plaintiff contained
in these paragraphs,
as it is simply not possible due to the facts
that the plaintiff does not in these paragraphs set out any cause of
action and any
claim against the defendants.
41. The 1st to 5th exception taken by
the defendants due to the fact that the pleading is vague and
embarrassing, strikes at the
formulation of the action and not its
legal validity. It cannot be directed at a particular paragraph, but
at the cause of action
as a whole.
42. The cause of action of the
plaintiff is not set out in these paragraphs, but simply the
background and basically how this stage
is set between the parties
for the claims which are to follow from A to E contained in paragraph
34 to 78.
43. The vagueness that the defendants
complain about is the fact that certain terms of the JBCC are
referred to in the background
in these paragraphs, and that the
plaintiff pleads that an oral agreement existed between itself and
the third defendant. The
second defendant’s complaint is
therefore that it is vague and embarrassing, due to the fact that the
second defendant does
not know if reliance is placed on the JBCC to
which the plaintiff was never a party, or reliance is placed on the
oral agreement
between the parties.
44. I cannot find in the formulation by
the plaintiff of its claim contained in paragraphs 1 to 33, vagueness
leading to embarrassment
and that embarrassment leading to prejudice
of the second defendant. The second defendant is not called upon to
plead to facts
setting out a cause of action vis-à-vis him,
but simply facts that set out how the plaintiff supports his case as
to the
claims that will follow from A to D. On this score therefore,
it is possible for the second defendant to plead to these paragraphs
and plead with admission or denial setting out his facts as to how
the background and/or claim procedure and/or appointment or
not of
the plaintiff and Mithro transpired.
45. The 1st to 5th exceptions therefore
against the plaintiff’s particulars of claim are dismissed.
46. In the sixth ground, the defendants
complain that the plaintiff approved claims as set out annexure “RE8”
to a net
value of R6, 587,224.50, but this amount is inconsistent
with paragraph 35 of the amended particulars of claim in which the
plaintiff
alleges another amount of R7, 533,476.31 and that the
plaintiff has failed to plead how the above amount is made up. Thus,
the
exception is that there is a disconnect between the amount set
out in annexure “RE8” and the amount claimed in paragraph
35 and 42 of the particulars of claim.
47. However, what the second defendant
does, is to refer and rely on the annexures and not the actual claim
set out by the plaintiff
in this claim against the defendants. This
is the shortfall claim in which the plaintiff pleads that certain
payments were made
to the plaintiff by the joint venture and that it
short-paid the plaintiff in regards to the amount of R7, 533, 476.31
which was
an amount claimed by the plaintiff and submitted to the
engineer for verification and approval.
48. The evidence with regard to the
amount of shortfall payment does not strike at the root of the cause
of action due to the lack
of particularity in setting out how the R7
million was made up, and these averments may however be substituted
by evidence. Thus,
the exception on this score is dismissed.
49. The seventh ground of exception is
that the claim of the plaintiff alleges that invoices were directed
to the third defendant
for payment, but some of these invoices were
addressed to the first defendant and not the third defendant, thus
rendering the particulars
of claim vague and embarrassing. Once
again, failure to mention why these invoices were made out to any of
the defendants and
not specifically to the joint venture is not
strictly necessary for the purposes of pleading and the lack of
stating the particular
person to whom the invoices were directed does
not make the pleading vague and embarrassing as it forms part of the
facta probantia.
This exception is therefore dismissed.
50. On the ninth ground the second
defendant contends that the plaintiff failed to set out in its
particulars of claim how the third
defendant accepted liability for
payment of the re-measurement amount. And if such acceptance was
oral or in writing and that
the plaintiff failed, if it was in
writing, to attach the alleged agreement. Therefore the particulars
are vague and embarrassing.
Once again the claim must be read in its
totality and not just each paragraph. The plaintiff specifically
pleads that this re-measurement
claim begins at paragraph 46 and
pleads that on 23 July 2009, the parties represented by their
representatives entered into an
oral agreement and agreed to certain
terms of the re-measurement.
51. The plaintiff pleads the oral terms
and thereafter pleads that the joint venture accepted liability in
terms of this oral agreement.
Thus, the terms as stated in the
particulars of claim are the terms which the plaintiff avers and if
the defendant disputes the
nature of the terms, it cannot be said to
be vague and/or embarrassing. It is clear that the plaintiff refers
to the oral agreement
and does not plead any other obligation to pay
or acceptance of liability to pay. Thus this exception is dismissed.
52. The tenth exception is that the
plaintiff pleads that the third defendant agreed to subtract the
value of work done by a previously
appointed electrical subcontractor
in an amount mentioned. The complaint is that the plaintiff has
failed to plead how the amount
is made up and that renders the claim
vague and embarrassing. The plaintiff specifically pleads that it
was in terms of an oral
agreement entered into between the parties on
23 July 2009, that the value of work done by a previously appointed
subcontractor
would be subtracted. The plaintiff sets out
specifically in paragraph 22.15 as to the background that the amount
complained about
is the amount pertaining to the work previously
executed by the erstwhile electrical subcontractor which was to be
deducted from
the total re-measurement of the re-measurement bill of
quantities in order to quantify the total contract value and amounts
due
to the plaintiff.
53. Thus, when one has regards to the
particulars of claim as a whole, read together with this paragraph of
which the second defendant
complains, it cannot be said to be vague
and embarrassing as the plaintiff sets out exactly where this amount
is derived from.
This exception is dismissed.
54. The eleventh ground of complaint is
that the plaintiff pleaded that in “addition” to the
above agreements there
was an oral agreement that the third defendant
would replace stolen materials, and that the reference to additional
agreements
renders the pleadings vague and embarrassing. Once again,
the plaintiff herein pleads the oral agreement and refers in addition
to the above agreements, which are the agreements as set out in claim
A to B, and sets out that the joint venture required the
plaintiff to
replace stolen electrical installations and for that material the
joint venture was provided with invoices which it
failed to pay.
55. The defendants also venture into an
attempt of interpretation of the JBCC agreement and/or oral
agreement, which will not necessarily
make the pleading vague and
embarrassing as it forms part of the facta probantia between the
parties. It certainly raises certain
disputes in regard to liability,
which can be pleaded. This exception is therefore dismissed.
56. The twelfth ground is an exception
raised against invoices not addressed to the second and/or third
defendant, but to the first
defendant. The second defendant
complains that this makes the pleadings vague and embarrassing. Once
again, the evidence with
regard to invoices delivered to the second
defendant, or all defendants together, does not strike to the root of
the cause of action
and/or makes it vague and embarrassing. These
averments may however be substantiated by evidence. Thus, this
ground is also dismissed.
57. In the sixteenth exception taken by
the defendant, the defendants complain that the plaintiff did not set
out or plead whether
the instructions received from BVI were in
writing or given orally. However, if one has regard to the
particulars of claim, it
is evident that the joint venture required
variations to the specific electrical installations received from the
contractor, BVI,
and it is not the plaintiff that received these
instructions. Therefore, this is not in any case facts that the
plaintiff would
have knowledge of. The plaintiff simply attaches
copies of drawings and variations done. Thus, this complaint does
not strike
to the root of the cause of action and is in any case not
necessary for the purposes of pleading and it forms part of the facta
probantia that the defendants will probably plead. This exception is
therefore also dismissed.
58. A summons will be vague and
embarrassing if it is not clear what the contract is on which the
plaintiff relies or whether he
or she sues or on a written contract
or a subsequent oral contract or if it can be read in one of a number
of different ways or
if there are more than one claim and the relief
claimed in respect of each is not separately set out. This is set
out in various
case law with reference to Herbst v Smit
1929 TPD 306.
59. What, however, is clear in these
particulars of claim by the plaintiff before court, is that the
plaintiff relies on an oral
agreement between itself and the joint
venture entered into on 23 July 2009, Mr Nene and Mr Robalo
representing the parties respectively.
60. The plaintiff does not in the
particulars of claim plead at any stage that it was a party, or a
signatory to the terms and conditions
of the JBCC agreement that
binds the joint venture and/or any other party.
61. In my view the averments embodied
in the particulars of claim set out the history of the matter and the
claims sufficiently
clear and unambiguously in order for the
defendant to plead thereto. It does disclose a cause of action and
are therefore not
vague and embarrassing. In the premises the
application for exception must fail.
62. The second defendant also complains
and launched a Rule 30 (1) application and contends that the amended
particulars of claim
fails to comply with Rules 18(4) and 18(6) and
thus constitutes an irregular step. Rule 18(4) has already been
discussed.
63. Rule 18(6) provides: “that a
party who in its pleading relies upon a contract shall state whether
the contract is written
or oral and when, where and by whom it was
concluded, and if the contract is written a true copy thereof, or
part relied on, shall
be annexed to the pleadings”.
64. I find in this matter that there is
no substance in the Rule 30 application, as the plaintiff in terms
of Rule 18(4) set out
a clear and concise statement of the material
facts upon which it relies for its claim and that it also in its
pleadings relied
upon an oral agreement and pleaded the terms thereof
fully.
65. Pleadings can be both vague and
embarrassing and constitute an irregular step, this was set out in
Absa Bank v Boksburg Transitional
Local Council
1997 (2) SA 415
(W)
at 418E – H. It says that where pleadings fail to comply with
the provisions of Rule 18 and is vague and embarrassing
the defendant
has a choice of remedies. He may bring an application in terms of
Rule 30 to have the pleadings set aside as an
irregular step or raise
an exception in terms of Rule 23. The remedies, however, are based
on separate and distinct complaints
requiring different adjudication.
The crucial distinction between Rule 23 and Rule 30 is the
following:
“ An exception that a pleading is
vague and embarrassing can only be taken when the vagueness and
embarrassment strikes at
the root of the cause of action as pleaded.
Whereas Rule 30 may be invoked to strike out the claim pleaded when
individual averments
do not contain sufficient particularity. It is
not necessary that the failure to plead material facts goes to the
root of the
cause of action.”
66. In the Rule 30 application also,
launched together with the Rule 23 application, the main complaints
against the particulars
of claim are that the plaintiff fails to set
out how amounts are made up. What is telling from the Rule 30 is
that all the amounts
referred to are amounts that either appear in an
invoice and/or a re-measurement bill and/or a verification of another
party.
Thus, these amounts would clearly be proven on the basis of
either oral evidence or documentary evidence being provided at trial.
It emanates mostly from other parties and the plaintiff can hardly be
blamed for not setting out how the amounts are made up due
to the
fact that he was not the author of these amounts or delivered the
services for these amounts.
67. There is no prejudice as set out in
the Rule 30 and the prejudice does not emanate from the irregular
steps averred by the second
defendants in their application.
68. I consequently make the following
order:
1. The exception application as well as
the Rule 30(1) application to the plaintiff’s amended
particulars of claim effected
on 9 December 2013 is dismissed with
costs.
STRAUSS AJ
ACTING JUDGE OF THE HIGH COURT
OFSOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
COUNSEL FOR THE PLAINTIFF: P LOUW
ATTORNEYS FOR THE APPELLANT:
BOTOULAS KRAUSE & DA SILVA
COUNSEL FOR THE RESPONDENT: MTA
COSTA
ATTORNEYS FOR THE RESPONDENT: HOGAN
LOVELLS
HEARD ON 8 OCTOBER 2015
JUDGMENT ON 16 OCTOBER 2015