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[2015] ZAGPJHC 246
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Glencarol (Pty) Limited and Others v Emerald Risk Transfer Limited and Others (2014/40878) [2015] ZAGPJHC 246 (27 October 2015)
REPUBLIC
OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION
JOHANNESBURG
CASE
NO. :
2014/40878
DATE:
27 OCTOBER 2015
In
the matter between:
GLENCAROL
(PTY)
LIMITED
......................................................................................
First
Plaintiff
O’NEILS
IRIS INTERNATIONAL SPORTS COMPANY
LTD
...............................
Second
Plaintiff
GLENMAR
(PTY)
LIMITED
.........................................................................................
Third
Plaintiff
AQUARELLA
INVESTMENTS (PTY)
LIMITED
....................................................
Fourth
Plaintiff
And
EMERALD
RISK TRANSFER
LIMITED
..................................................................
First
Defendant
SANTAM
LIMITED
...................................................................................................
Second
Defendant
THE
LION OF AFRICA
LIMITED
............................................................................
Third
Defendant
ZURICH
INSURANCE COMPANY SA
Ltd
............................................................
Fourth
Defendant
JUDGMENT
OPPERMAN
AJ
[1]
The plaintiffs allege that they are indemnified under a short-term
policy of insurance issued by the defendants on 16 July 2012
(“
the
policy
”). The plaintiffs seek to be indemnified in terms of
the policy for damage caused to certain equipment and for business
interruption
as a result of flooding that occurred on the 25th of
January 2012.
[2] Four (4) claims
were initially made by the plaintiffs under the policy:
2.1. the first claim
was for the cost of rebuilding or replacing the equipment that was
allegedly damaged;
2.2. the second
claim was for an indemnification in respect of cancellation charges
and penalties which the first plaintiff contended
it had become
liable for as a result of the damage to equipment;
2.3. the third claim
was for a loss of gross profit due to a reduction in turnover in
consequence of the flooding and damage to
the equipment; and
2.4. the fourth and
last claim was a claim for the loss of gross profit due to an
increase in the cost of working as a result of
the flood and damage
to equipment.
[3]
In relation to all four of the above claims, the plaintiffs, in their
initial particulars of claim, alleged that they had notified
the
defendants of the flood and damage to equipment on the 2nd of
February 2012 and that the defendants had wrongfully repudiated
the
claim which repudiation the plaintiffs did not accept, and in
consequence, the defendants were obliged to indemnify the plaintiffs
in the amounts claimed as the policy ought to have reacted to the
claims.
[4]
The defendants considered the plaintiffs’ particulars of claim
to be excipiable and they delivered a notice in terms of
Rule 23(1)
of the Uniform Rules of Court, raising a number of complaints that
required to be rectified. One such complaint was
directed towards the
plaintiffs’ failure to identify which of the plaintiffs had
suffered the damages arising from the flooding
and which of the
plaintiffs were seeking an indemnity under the policy. Another was
the failure to allege when and how the defendants
had repudiated the
plaintiffs’ claims.
[5]
Arising from the notice in terms of Rule 23(1), the plaintiffs
amended their particulars of claim and clarified that the claims
advanced in their initial particulars of claim, were now claims
advanced only by the first plaintiff. The remaining plaintiffs
were
cited purely because they were named as insured parties under the
policy.
[6]
The plaintiffs now also alleged that on the 2nd of February 2012, the
first plaintiff orally notified the first defendant of
the flood and
damage to equipment and on the 7th of February 2013, the
defendants in writing, wrongfully repudiated the plaintiffs’
claim, which repudiation the plaintiffs did not accept and in
consequence, the defendants were obliged to pay the first plaintiff
the amounts claimed.
[7]
The plaintiffs had failed to attach the written repudiation by the
defendants dated the 7th of February 2013, but pursuant to
a notice
in terms of Rule 35(12) and (14), the plaintiffs furnished an email
dated the 7th of February 2013 (“
the email
”) as
constituting the letter of repudiation by the defendants.
[8]
It is this email, and what the plaintiffs allege it constitutes, that
form the focus of the defendants’ exception. In
a nutshell, the
defendants contend that the email does not represent a repudiation as
alleged by the plaintiffs and that the plaintiffs’
reliance
thereon is flawed, resulting in their amended particulars of claim
being excipiable.
[9]
The exception was initially taken both on the basis that the amended
particulars of claim failed to disclose a cause of action
and that it
was vague and embarrassing. The defendants, during argument before
this court, did not persist with the exception based
on the ground
that the particulars failed to disclose a cause of action and confine
themselves to the question of whether it is
vague and embarrassing.
[10]
Rule
23(1) provides that an exception may be taken against a pleading on
the grounds that it is vague and embarrassing. Such an
exception
strikes at the formulation of the cause of action and not its legal
validity.
[1]
[11]
A
pleading may be vague if it fails to provide the degree of detail
necessary in a particular case properly to inform the other
party of
the case being advanced.
[2]
The typical prejudice which justifies an exception is if the
allegations in the particulars of claim are such that the defendant
is unable to plead properly.
[3]
[12]
The
question is whether “
the
embarrassment is, or is not, so serious as to cause prejudice to the
excipient if he is compelled to plead to the paragraph
in the form to
which he objects”
.
In order to answer this question, the Court is “
obliged
to undertake a quantitative analysis of such embarrassment as the
excipient can show is caused to him, in his efforts to
plead to the
offending paragraph, by the vagueness complained of”
.
[4]
[13]
The
evaluation of prejudice is a factual enquiry, and is a question of
degree. The decision must necessarily be influenced by the
nature of
the allegations, their content, the nature of the claim and the
relationship between the parties.
[5]
[14]
In
Jowell
v Bramwell-Jones
[6]
this Court referred to the following general principles insofar as
exceptions are concerned:
“
a.
Minor blemishes are irrelevant: pleadings must be read as a whole; no
paragraph can be read in isolation;
b.
...
c.
a distinction must be drawn between the facta probanda or primary
factual allegations which every plaintiff must make, and the
facta
probantia which are the secondary allegations upon which the
plaintiff will rely in support of his primary factual allegations.
Generally speaking, the latter are matters for particulars for trial
and even then are limited. For the rest, they are matters
for
evidence;
d. only facts
need be pleaded; conclusion of law need not be pleaded; ...”
[7]
[15]
In
Jowell
v Bramwell-Jones
,
[8]
it was also held that:
“
an
exception that a pleading is vague and embarrassing cannot be
directed at a particular paragraph within a cause of action”
.
An exception “
must go to the whole cause of action”
.
[16]
Paragraphs 20, 31, 41 and 48 of the amended particulars of claim
(“
the offending paragraphs
”) all of which are
identical and are repeated in the pleading under different claims
read:
“
On
7 February 2013 the Defendants (represented by the First Defendant)
in writing wrongly repudiated the Plaintiffs’ claim
which
repudiation the Plaintiffs did not accept.”
The
exception to this paragraph is that it is vague and embarrassing in
that the email recording the “
writing
” does not
evidence a repudiation of the first plaintiff’s claim.
[17] The questions
which fall for determination are:
17.1. Do the
allegations contained in the offending paragraphs form part of the
facta probanda
of the first plaintiff’s claims?
17.2. Does the email
contain admissible evidence?
17.3. Does the email
contradict the content of the offending paragraphs?
17.4. If so, does
such contradiction render the amended particulars of claim
excipiable?
[18]
The
first plaintiff’s claim is for specific performance of the
defendants’ contractual obligations. That being
so, an
allegation of repudiation is not required to be made in order for the
first plaintiff to sustain its cause of action.
[9]
[19]
In the
Ndlovu
[10]
matter, Mthiyane
JA (with whom Zulman JA, Cameron JA, Lewis JA and Comrie AJA
concurred) held at para [14] p 248 as follows:
“
In
the present matter the appellant did not accept the respondent’s
repudiation and sued the respondent for specific performance
on the
agreement. It follows therefore that the repudiation was not a
material fact which the appellant had to prove to establish
his cause
of action”
[20]
The allegations pleaded in the offending paragraphs are thus not
relevant to the issues which will fall for determination at
the
trial. This may have informed the decision on the part of the
defendants not to persist in the objection that the pleading
failed
to disclose a cause of action.
[21]
The defendants’ complaint is, in a nutshell, that the email
contradicts that which has been pleaded in the offending
paragraphs.
This contradiction between that which has been pleaded and the
annexed document, so the argument goes, renders the
particulars of
claim vague and embarrassing.
[22]
The contradiction lies in this: In the offending paragraphs,
the first plaintiff contends that the defendants repudiated
the
claims in writing. If the defendants’ argument is accepted, the
email does not support such a finding but contains without
prejudice
settlement discussions which, even if regard is had to it, do not
evidence a refusal to honour the claims.
[23]
A contradiction between an allegation pleaded and a document attached
in support of such allegation, would, generally, lead
to a conclusion
that the particulars of claim are vague and embarrassing. However, as
the authorities cited above show, the complaint
must go to the root
of the cause of action and, the excipient must be prejudiced in
pleading thereto. Mere contradiction does not
in and of itself amount
to a vague and embarrassing pleading. The other offending features
must also exist before an exception
on this ground should be upheld.
[24]
The defendants urged the court to find that the email contained
inadmissible evidence. If I were to do so, the email would
be
disregarded and the entire basis for the exception would fall away as
there would be no contradiction between the allegations
pleaded and
the email – the content of the email would have to be
disregarded on this approach.
[25]
I hold the view that it is not necessary for this court to make a
ruling on the admissibility of the content of the email in
this
matter, nor that it is advisable, generally, to make rulings on the
admissibility of evidence at the exception stage, which
rulings might
bind the trial court. The reason why it is not necessary in this
instance to make a ruling is because, whatever I
find in respect of
admissibility, can have no bearing on the fact that the offending
paragraphs are not relevant to an adjudication
of the facts which are
to be proven by the first plaintiff. A contradiction between an
annexure and an irrelevant paragraph in
a set of particulars of claim
by definition does not go to the root of the cause of action. The
paragraph, being irrelevant, forms
no part of the cause of action.
Therefore, however much it may be contradicted by the annexure at
least one essential leg of the
test for excipiability on the vague
and embarrassing ground is absent.
[26]
Mr Pye, representing the first plaintiff argued that the
contradiction, insofar as it exists, can not be found to be
prejudicial
to the defendants and that a plea to the offending
paragraphs could easily be drafted. Indeed, to demonstrate the point,
he had
done so during the time of Mr Chohan’s address to this
court. It read as follows:
26.1.
The
defendants deny having repudiated the claim.
26.2.
The
defendants deny that the email evidences the repudiation alleged.
26.3.
The
defendants deny that the email contains admissible evidence of a
repudiation.
[27]
Neither Mr Chohan or I had the opportunity to properly consider and
debate the proposed plea but it does
prima facie
, demonstrate
that there appears to be little or no prejudice to the defendants in
pleading to the offending paragraphs. Having
to plead to irrelevant
matter may be tiresome, but it does not mean an exception must be
upheld.
[28]
The
acid test though is this: If the defendants admitted the allegations,
would it make a difference to the outcome of the trial?
Clearly not.
The averments are irrelevant and probably should not have been
pleaded at all. In these circumstances it can
not be said that the
vagueness and embarrassment (insofar as it is found to exist) goes “
to
the whole cause of action ”
[11]
[29] For purposes of
this hearing I have assumed without finding:
29.1.
That the email contains inadmissible evidence; and
29.2.
That a contradiction exists between the email and the offending
paragraphs.
[30]
As stated, a finding that the email contains inadmissible evidence
erodes the very basis of the exception as no contradiction
can then
be found to exist if the evidence is to be disregarded. Be that as it
may, a finding that a contradiction exists between
the email and the
offending paragraphs does not lead to the conclusion that the
defendants are prejudiced in pleading thereto.
When a factual
analysis is undertaken as was done, there can be no question of
prejudice to the defendants if the allegations relating
to the claim
having been repudiated are not expunged on exception.
[31] I accordingly
make the following order : The exception is dismissed with costs.
I Opperman
Acting Judge
of the High Court
Heard: 23
October 2015
Judgment
delivered: 27 October 2015
Appearances:
For
Defendants: Adv MA Chohan SC
Attorneys:
Norton Rose Fulbright South Africa
For
Plaintiffs: Adv W Pye
Attorneys:
Fasken Martineau
[1]
Trope
v South African Reserve Bank
[1993] ZASCA 54
;
1993
(3) SA 264
(A) at 269I
[2]
Lockhat
v Minister of Interior
1960
(3) SA 765
(D) at 777D;
Nasionale
Aartappelkoöperasie Bpk v PriceWaterhouseCoopers
2001
(2) SA 790
(T) at 797J–798A
[3]
Lockhat
supra
at 777E
[4]
Quinlan
v McGregor
1960
(4) SA 383
(D) at 393F-G
[5]
ABSA
Bank Ltd v Boksburg Transitional Local Council
1997
(2) SA 415
(W) at 422A
[6]
1998
(1) SA 836
at 902J – 903B
[7]
contra
Prinsloo
v Woolbrokers Federation Ltd
1955
(2) SA 298
(N)
at 299E, rule 20(2) and
[8]
Supra
at
899D
[9]
Ndlovu v Santam
2006 (2) SA 239
SCA [14].
[10]
Supra
[11]
See footnote 7