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 286
|
|
Penhelig Proprietary Limited v Toni Robinson Collection CC t/a Cottonwood Trading (20194/2014) [2015] ZAGPJHC 286 (18 December 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 20194/2014
DATE:
18 DECEMBER 2015
In
the matter between:
PENHELIG
PROPRIETARY
LIMITED
...........................................................................
PLAINTIFF
And
TONI
ROBINSON COLLECTION CC T/A
COTTONWOOD
TRADING
...........................................................................................
DEFENDANT
JUDGMENT
OPPERMAN
AJ
Introduction
[1]
The Defendant has taken exception to the
Plaintiff’s particulars of claim as amended, which exception
consists of 22 grounds
taken as to vagueness and embarrassment, of
which 16 of those, also contain alternative grounds based on a
failure to disclose
a cause of action. At the outset, Mr Dobie,
appearing on behalf of the excipient (the defendant), advised that he
was not arguing
the second exception and was not persisting with the
twentieth exception.
[2]
The Plaintiff’s claim is for various
heads of damages for the breach of a commercial written lease
agreement of immovable
property (‘
the
lease
agreement
’).
[3]
I will deal with each exception in turn.
Prior to doing so, something about the law applicable to exceptions.
Exceptions
– Vague and embarrassing
[4]
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]
[5]
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]
[6]
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]
[7]
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]
[8]
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]
[9]
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
”
.
Exceptions
: no cause of action
[10]
As stated in
McKelvey
v Cowan NO
1980 (4) SA 525
(Z) at
526D-E:
“
It
is a first principle in dealing with matters of exception that, if
evidence can be led which can disclose a cause of action alleged
in
the pleadings, that particular pleading is not excipiable. A pleading
is only excipiable on the basis that no possible evidence
led on the
pleading can disclose a cause of action.”
[11]
In
Frank v
Premier Hangers CC
2008 (3) SA 594
(C)
Griesel J stated as follows at para [11] page 600:
“
[11]
In order to succeed in its exception, the plaintiff has the onus to
persuade the court that, upon every interpretation which
the
defendant's plea and counterclaim can reasonably bear, no defence or
cause of action is disclosed. Failing this, the exception
ought not
to be upheld.”
[12]
In
Vermeulen v
Goose Valley Investments (Pty) Ltd
2001
(3) SA 986
(SCA) Marais JA stated as follows at para [7] page 997:
“
[7]
It is trite law that an exception that a cause of action is not
disclosed by a pleading cannot succeed unless it be shown that
ex
facie the allegations made by a plaintiff and any document upon which
his or her cause of action may be based, the claim is
(not may be)
bad in law.”
[9]
Exception
1 - No cause of action
[13]
The Plaintiff claims damages under various
heads. The Plaintiff in setting out its damages, annexed a number of
invoices generated
by itself in respect of the costs allegedly
incurred. The Plaintiff included in such invoices, Value Added Tax at
the rate of 14%.
These invoices do not relate to services rendered by
the Plaintiff for and on behalf of the Defendant, but to a
quantification
of the Plaintiff’s damages. The Defendant
contended that the Plaintiff’s particulars of claim does not
set out a cause
of action in relation to the portion of the claim
which includes Value Added Tax.
[14]
The
total VAT amount claimed is R2088.07. This forms part of the water,
electricity, garden clearance services and reconnection
of
electricity claim, the total claim of which is R17 165.84. In
Barrett
v Rewi Buluwayo Development Syndicate Ltd
1922 AD 457
[10]
the
principle was formulated that “
Exception
should not be taken to particular sections of a pleading, unless they
are self-contained and amount in themselves to a
separate defence as
the case may be
”
.
In
Barclays
National Bank Ltd v Thompson
1989 (1) SA 547 (A)
[11]
the
principle was restated as follows: ”
It
seems that the function of a well-founded exception that a plea, or
part thereof, does not disclose a defence to the plaintiff’s
cause of action is to dispose of the case in whole or in part. It is
for this reason that exception cannot be taken to part of
a plea
unless it is self-contained, amounts to a separate defence, and can
therefore be struck out without affecting the remainder
of the plea.
”
[15]
It seems to me that the VAT portion is so
closely tied up in the balance of the claim that to excise it would
offend the above criteria.
[16]
Moreover,
in
Terminus
Centre CC v Henry Mansell (Pty) Ltd
2006 JDR 0047 (C)
[12]
,
at
29 it was held that whether the plaintiff is liable to pay VAT is a
matter between it and the South African Revenue Services.
The
Defendant can raise as a defence that VAT is not payable. This claim
constitutes a very small portion under this rubric and
it can hardly
be contended that it disposes of the case in whole or in part. This
ground of exception is thus dismissed.
Exception
3 – No cause of action alternatively vague and embarrassing
[17]
The Plaintiff in paragraph 8.1 of its
Particulars of Claim indicates that the Defendant unilaterally,
wrongfully and defectively
cancelled the lease agreement by virtue of
a letter dated 4 July 2013. The Plaintiff annexed a copy of such
letter which letter
made reference to a letter dated 21 January 2013
setting out the Plaintiff’s alleged breaches. The Defendant
argued that
the Plaintiff’s allegation that the Defendant
wrongfully and defectively cancelled the lease agreement is based
upon a conclusion
of law, which conclusion has regard to an
interpretation of the letter attached dated 4 July 2013 as read with
the letter referred
to therein. As the breach letter (the one dated
21 January 2013) is not annexed to the Plaintiff’s particulars
of claim,
the Defendant is unable to ascertain the truth, veracity
and/or accuracy of the Plaintiff’s allegations as set out in
paragraph
8.1. The Plaintiff’s particulars of claim are, so the
argument ran, accordingly vague and embarrassing insofar as the
Defendant
is unable to ascertain: 1) whether the cancellation was
wrongful or defective in any way whatsoever; 2) the correctness of
the
allegations set out in paragraph 8.1; and 3) whether the
Plaintiff has any basis for its claim set out in the particulars of
claim.
Alternatively, it was argued that the Plaintiff’s
particulars of claim sets out no cause of action insofar as the
Plaintiff
failed to allege on what basis in fact or in law the
alleged cancellation was defective and/or wrongful, which is the
entire premise
of the Plaintiff’s claims in its particulars of
claim.
[18]
The Plaintiff argued that the Defendant was
under a misapprehension as to the basis on which the Plaintiff relied
for the breach
of the lease agreement by the Defendant. It argued
that the breach relied upon by it is not the conduct complained of in
paragraph
8.1. It argued that the breach relied upon by it was the
premature cancellation by the Defendant of the lease agreement,
coupled
with the failure by the Defendant to secure an alternative
tenant.
[19]
Paragraph 8.1 is preceded by the following
introductory paragraph:
‘
8.
Notwithstanding the compliance by the Plaintiff with the terms
and conditions of the Lease Agreement, the Defendant had
breached the
Lease Agreement, by inter alia:’
.
[20]
If paragraph 8.1 is not intended to contain
a breach relied upon by the Plaintiff then it should not form part of
paragraph 8. If
it is intended to contain a breach, the breach/es
should be pleaded with clarity and it should not be for the Defendant
to analyse
the annexures to the particulars of claim so as to
identify the factual basis for the conclusions of law pleaded in
paragraph 8.1.
The Defendant is embarrassed as the Defendant cannot
ascertain the facts relied upon, from the pleading. The Defendant is
accordingly
prejudiced in pleading thereto. I thus find that the
allegations pleaded in paragraph 8.1 are vague and embarrassing to
the extent
referred to herein.
Exception
4 – vague and embarrassing
[21]
The Plaintiff in paragraph 8.2 makes
reference to fictitious and fabricated breaches raised by the
Defendant. The Defendant contends
that such allegations are
conclusions of law and the failure by the Plaintiff to have pleaded
the facts underpinning such conclusions
renders the particulars of
claim vague and embarrassing. The arguments raised in respect of this
paragraph are similar to those
raised in respect of paragraph 8.1 of
the particulars of claim. The Defendant contended that the
Plaintiff is obliged to
plead why it contends the breaches raised by
the Defendant were fictitious and fabricated. Had the breaches in
paragraph 8.1 been
identified, this paragraph might have followed.
The Plaintiff has pleaded that the alleged breaches (whatever they
are) were fictitious
and fabricated. These two paragraphs are so
closely interlinked, that they should stand or fall by the same
sword. The Defendant
is embarrassed as the Defendant cannot ascertain
the facts relied upon, from the pleading and is prejudiced in
pleading thereto.
I find that the allegations pleaded in paragraph
8.2 are vague and embarrassing to the extent referred to herein.
Exception
5 – vague and embarrassing
[22]
The Plaintiff in paragraph 8.3 makes
reference to clause 3 of the lease agreement and alleges that the
Defendant was responsible
to find a suitable replacement tenant in
the event of cancellation. The Defendant contends that clause 3 of
the lease agreement
relates to consensual cancellation whilst the
Plaintiff alleges that the Defendant cancelled the agreement of lease
based upon
alleged breaches by the Defendant. The Defendant thus
contends that the Plaintiff’s particulars of claim are vague
and embarrassing
insofar as the Defendant is unable to ascertain on
what basis or grounds clause 3 of the agreement is applicable.
[23]
Paragraph 8.3 follows upon the already
quoted introductory paragraph. It therefore reads as follows:
‘
8.
Notwithstanding the compliance by the
Plaintiff with the terms and conditions of the Lease Agreement, the
Defendant had breached
the Lease Agreement, by inter alia:……8.3
It was expressly agreed, in clause 3 of the Lease Agreement,
that
should the Defendant wish to terminate the Lease Agreement before the
Initial Period, the Defendant would be responsible for
finding a
suitable replacement tenant at the value of the lease contract
;’
[24]
It would seem that what the Plaintiff
intended to plead was to allege that the Defendant breached the lease
agreement by failing
to find a suitable replacement tenant. Defendant
has couched its exception on the basis that this is indeed what was
pleaded. Its
argument, as I understand it, is that there can be no
such breach as the agreement does not oblige the Defendant to find a
suitable
replacement tenant other than in the event of a consensual
cancellation.
[25]
Clause 3 reads as follows:
‘
TERMINATION
OF LEASE
. Should either party to
this agreement wish to terminate after the expiration of this Lease,
he shall give two clear calendar months
notice to do so. If tenant
wishes to terminate lease before it expires, he is responsible to
find a suitable replacement tenant
at the value of the lease
contract.’
[26]
The Plaintiff argued that the issue raised
by the Defendant as to Clause 3 is a matter of interpretation of the
contract. The principle
is that it is not only the language of the
provision but also the purpose to which such provision was directed
and the material
known to those responsible for its production
relying in this regard on the matter of
Natal
Joint Municipal Pension Fund v Endumeni Municipality
,
2012 (4) SA 593
(SCA) at 602I to 605B. It was argued that this
feature could only be considered after the production of evidence at
trial but that
in any event, the mere language of the provision, in
the context of the document, did not establish the interpretation
contended
for by the Defendant. In my view, one of the
interpretations to be afforded to the last sentence of clause 3, is
that in the event
of a consensual cancellation of the lease
agreement, the Defendant would be obliged to find a suitable
replacement tenant. The
other interpretation is that if the tenant
wished to cancel the lease agreement for whatever reason ie with the
consent of the
Plaintiff or without such consent, it was obliged to
find a suitable replacement tenant.
[27]
In my view, paragraph 8.3 is excipiable as
the facts have not been properly pleaded. It does not read
intellegibly as demonstrated
in paragraph 23 hereof. However,
the Defendant did not take the exception on this basis. It assumed
that the Plaintiff had
pleaded that the lease agreement had obliged
the Defendant to find a suitable replacement tenant under
circumstances where the
Plaintiff had contended that Defendant had
breached the agreement. At this stage, and without the benefit of
evidence and being
confined to interpreting the pleadings read with
the lease agreement, it would appear that such a construction is
consistent with
the provisions of clause 3. There is no contradiction
between that which has been pleaded and the provisions of clause 3.
This
ground of exception is accordingly dismissed.
Exception
6 – No cause of action alternatively vague and embarrassing
[28]
The exception initially taken was changed
during argument. It was argued that the Plaintiff’s
particulars of claim was
excipiable as in paragraph 6 it had alleged
that it had complied with all its obligations in terms of the Lease
Agreement in one
single day. This allegation contradicted the
obligations in the lease agreement that numerous obligations had to
be performed which
could not possibly all have occurred on one day,
the particulars of claim were accordingly vague and embarrassing.
[29]
Paragraph 6 is introduced with the words:
‘
On or about’
.
This implies more than one day. The Plaintiff pleaded that it had
complied with it’s obligations. It did so in paragraph
6 and
again in paragraph 9. The Defendant could request particulars as to
the facts underpinning these propositions. I find that
sufficient
facts have been pleaded and that this ground of exception is without
merit and falls to be dismissed.
Exception
7 – No cause of action alternatively vague and embarrassing
[30]
The next cause of complaint appears from
that which the Plaintiff pleaded in paragraphs 9.1 and 9.2 of its
Particulars of Claim:
it claims for consumption charges for the
period 6 September to 8 October 2013 however alleges that the
Defendant vacated the premises
on 30 September 2013. The Defendant in
terms of the provisions of the lease agreement is liable only for
such water and electricity
actually consumed during the period of
tenancy. The Plaintiff is accordingly claiming from the Defendant
consumption charges for
a period during which the Defendant was not
in occupation of the premises and did not consume anything on the
premises. The Defendant
contends that the Plaintiff’s
particulars of claim are vague and embarrassing insofar as the
Defendant is unable to ascertain
whether the Plaintiff alleges that
the Defendant continued to utilise services after vacating the
premises, on what basis the Defendant
is allegedly liable for such
charges for the period 1 October to 8 October 2013, what portion of
the alleged charges relates to
the period whilst the Defendant was in
occupation and what portion relates to the period thereafter. In the
alternative, Defendant
contended that the Plaintiff’s
particulars of claim sets out no cause of action in respect of water
and electricity consumption
for the period 1 October to 8 October
2013.
[31]
In my view, such claim relates to the
period of measurement by the relevant municipality being between 6
September 2013 and 8 October
2013. How much was consumed by the
Defendant is a matter for evidence and/or particulars can be
requested. It is further not alleged
that there was actual
consumption between 1 October 2013 and 8 October 2013. In
paragraph 13 it is pleaded that such premises
was only occupied again
on 1 April 2014. Reading the pleading as a whole, it is clear that
what is alleged, is that the Defendant
is held liable for it’s
consumption until 30 September, when it vacated the premises. The
Plaintiff will have to lead evidence
at the trial as to whether or
not charges were levied beyond 30 September or whether the date of 8
October is merely a standard
cut off point for billing purposes. This
ground of exception is accordingly dismissed.
Exception
8 – No cause of action alternatively vague and embarrassing
[32]
The Plaintiff in paragraph 9.3 alleges that
the Defendant refused and failed to make payment of outstanding
charges for garden and
clearance services in the sum of R2 080,50.
The Defendant contended that the Plaintiff did not allege on what
basis the Defendant
is liable for such charges. In terms of the
provisions of the agreement of lease, the Defendant could make use of
the Plaintiff’s
garden services, however, it has not been
alleged that the Defendant chose to do so. Such services
allegedly related to Annexure
“POC7” which was issued on
13 February 2013. Defendant contended that the Plaintiff’s
particulars of claim
are vague and embarrassing insofar as the
Defendant is unable to ascertain whether the amount is an agreed
amount, whether the
amount relates to damages suffered, whether the
charges were incurred by the Plaintiff in accordance with some
external agreement
and on what basis the Plaintiff claims such
amounts. In the alternative Defendant contends that the Plaintiff’s
Particulars
of Claim sets out no cause of action.
[33]
The Plaintiff pleads in paragraph 9.3 that
the “…
charges for garden
clearance services…
” is
“…
in respect of care and
maintenance of the garden…
”.
Plaintiff argued that clause 6 of the Lease Agreement
specifically provides that the Lessee (being the Defendant)
would be
responsible for the care and maintenance of the garden and grounds,
and logically such included the costs pertaining to
such care and
maintenance.
[34]
In my view, the Plaintiff has not set out a
basis for this claim. The lease agreement creates an obligation to be
responsible for
the care and maintenance of the garden and grounds. A
breach of this obligation may result in a claim for damages. However,
there
exists no obligation to pay for maintenance. I find that
paragraph 9.3 accordingly fails to disclose a cause of action and
this
ground of exception is upheld.
Exception
9 – No cause of action alternatively vague and embarrassing
[35]
The Plaintiff in paragraph 9.4 alleges that
as a result of the Defendant’s failure to pay for electricity
supply, the electricity
supply was terminated. The Defendant
argued that the Plaintiff did not allege to whom the Defendant was to
make payment and
insofar as it was alleged that the payment was to be
made to a third party, the Plaintiff failed to set out on what basis
it was
entitled to claim the consumption charges as is set out in
paragraph 9.2 of the Particulars of Claim, from the Defendant. It
also
pointed out that insofar as it was terminated, such termination
occurred subsequent to the Defendant vacating the premises. The
Defendant argued that the Plaintiff’s claim amounted to special
damages which do not flow naturally from the breach nor does
the
Plaintiff state that the damages were within the contemplation of the
parties at the time the agreement was entered into.
[36]
The Plaintiff has not set out a basis for
this claim. The lease agreement creates an obligation to pay for
electricity consumption.
However, what the Plaintiff seeks to claim
in this instance, is a reconnection fee due to the Defendant’s
failure to pay
for it’s electricity consumption. The current
claim appears to be for special damages for which no factual basis
has been
pleaded. I accordingly find that paragraph 9.4 fails to
disclose a cause of action and this ground of exception is thus
upheld.
Exception
10 – 17 – No cause of action alternatively vague and
embarrassing
[37]
The Plaintiff in paragraph 12.1 claims that
the Defendant failed to keep the premises in a reasonable state of
repair and failed
to return same in a reasonable condition, less
reasonable wear and tear. The Defendant points out that the amounts
claimed in the
sub-headings to paragraph 12.1 do not relate to
reasonable wear and tear particularly paragraphs 12.1.1.12 to
12.1.1.31. The Defendant
argued that it is unable to ascertain on
what basis these amounts are claimed by the Plaintiff insofar as they
do not relate to
contractual obligations of the Defendant and no
other basis for claiming same has been set out. Paragraph 12.1.1,
which is the
introductory paragraph for, amongst other paragraphs,
paragraph 12.1.1.12 to 12.1.1.31 reads:
‘
Failure
to maintain the interior of the premises, and garden and grounds,
requiring the Plaintiff to re-paint and repair the interior
of the
premises, and repair the garden and grounds, and as such the
Plaintiff incurred the following
costs
in this regard:’ (own emphasis)
[38]
The Plaintiff is not claiming, in what
follows upon paragraph 12.1.1, that such costs relate to ‘
reasonable
wear and te
ar’. It is relying on
the contractual obligations contained in clause 6 of the lease
agreement and pleaded in paragraph 12.1.1.
Further, the pleading
needs to be read as one composite document. Between paragraphs 10 and
11 appears a heading: ‘
DAMAGES
’.
Paragraph 11 then explains that pursuant to the Defendant’s
unilateral and wrongful cancellation of the lease, Plaintiff
set out
to mitigate its damages.
[39]
The Defendant contends that the claims that
follow are evidently not maintenance claims but damages claims.
On a reading of
the pleading as a whole and having regard to, amongst
other things, the heading appearing between paragraphs 10 and 11, and
the
introductory paragraph quoted in paragraph 29 hereof, it is
evident that the Plaintiff is in fact claiming damages. I thus find
that a proper reading of the pleading does not lead one to conclude
that the Plaintiff is seeking to enforce contractual obligations.
It
is claiming damages flowing from the Defendant’s failure to
comply with it’s contractual obligations and the actual
costs
incurred as a result thereof. These grounds of exception are
accordingly dismissed.
Exception
18 – No cause of action alternatively vague and embarrassing
[40]
The Plaintiff in paragraph 12.2 alleges
that it has suffered damages in the sum of R246 938,37. The
Plaintiff furthermore alleges
that the Defendant has made payment of
the deposit of R80 000. It then sets off the one amount against
the other. The Defendant
objects to this contending that one cannot
set off a liquidated amount against an unliquidated amount. This, as
a general principal,
is, of course, correct.
[41]
This, however, does not render the
particulars of claim excipiable. The Plaintiff can claim its full
amount. The Defendant can counterclaim
for its deposit. The Plaintiff
can request the court to stay the counterclaim in anticipation of the
illiquid claim becoming liquid
upon judgment. The Defendant’s
complaint is effectively that the Plaintiff has claimed too little
from the Defendant. It
can plead this. This ground of exception is
accordingly dismissed.
Exception
19 – No cause of action alternatively vague and embarrassing
[42]
The Plaintiff in paragraph 13 alleges that
it obtained a new tenant with effect from 1 April 2014. The Defendant
contended that
the Plaintiff did not allege what the rental was it
obtained from such tenant, the exact terms and conditions, the period
of the
lease nor any other amounts it was entitled to claim from such
tenant. The Defendant argued that it was unable to ascertain the
reasonableness of the damages claimed by the Plaintiff, whether the
Plaintiff in fact suffered any damages, the validity of the
Plaintiff’s claim as against the Defendant in respect of loss
of rental and/or costs incurred.
[43]
Plaintiff’s claims in respect of
paragraphs 15.1 to 15.6 are claims not based on the new lease with
the new tenant, but on
the rental as per the Lease Agreement
concluded with the Defendant for the months that the premises stood
empty. The claim
in paragraph 17 is for commission costs
incurred due to the Plaintiff having to find an alternative tenant
and paragraph 20 is
for the costs of modification of the premises to
meet the needs of the new tenant. These are all damages claims to
which Defendant
can request further particulars in due course. This
ground of exception is dismissed.
Exception
21 – vague and embarrassing
[44]
The Plaintiff in paragraph 14 alleges that
it engaged the services of API Property Group CC. The Defendant
argued that the Plaintiff
does not allege when such services were
engaged and, as a result, the Defendant is unable to ascertain
whether the Plaintiff took
reasonable steps to mitigate its damages,
whether the Plaintiff took timeous steps to mitigate its damages and
whether the amount
of commission claimed is reasonable. It contends
that having regard to the fact that the Plaintiff does not set out
the basis upon
which such commission has been ascertained or
calculated, it is unable to assess whether such commission amounts to
a market-related
commission under the circumstances.
[45]
The
information lacking falls within the secondary evidence category
which can either be requested after the close of pleadings,
or
evidence can be led on it ,at trial. In addition, the onus is on the
Defendant to prove that the steps taken by the Plaintiff
were not
correct. Such allegations are to be raised in a plea
[13]
.
The absence of this information does not render the pleading vague
and embarrassing and this ground of exception is accordingly
dismissed.
Exception
22 – No cause of action
[46]
The Plaintiff in paragraph 17 claims for
the costs incurred and the commission paid to an agency to obtain a
replacement tenant.
The Plaintiff in paragraph 20 claims amounts in
respect of costs incurred to ensure that the property complied with
the needs of
a new tenant. The Defendant contends that the costs
incurred in respect of a new tenant and the costs to restore the
premises to
an acceptable condition for the new tenant, are costs
which the Plaintiff would in any event have had to incur once the
lease had
come to an end. Accordingly, so the argument goes, these
amounts amount to special damages. The Defendant points out that the
Plaintiff
does not plead that the amounts flow naturally from the
Defendant’s breach nor that they fell within the contemplation
of
the parties when the lease agreement was entered into. The
Defendant argued that the Plaintiff accordingly failed to set out a
cause of action in respect of these damages.
[47]
The Plaintiff has not dealt with the
aspects highlighted by the Defendant, and no factual foundation has
been pleaded which would
sustain the claims under these rubrics. I
accordingly uphold this ground of exception.
Conclusion
[48]
I accordingly grant the following order:
48.1.
The exception is upheld in respect of
paragraphs 8.1, 8.2, 9.3, 9.4 and 17 of the Plaintiff’s
particulars of claim and those
paragraphs are hereby struck out;
48.2.
The Plaintiff is granted leave to amend its
particulars of claim on or before 30 January 2016, if so
advised.
48.3.
The Plaintiff is to pay the costs of the
exception.
I
OPPERMAN
Acting
Judge of the High Court
Gauteng
Local Division, Johannesburg
Heard:
22 October 2015
Judgment
delivered: 18 December 2015
Appearances:
For
Excipient/Defendant: Adv JG Dobie
Instructed
by: Susan Cappilati Attorneys
For
Respondent/Plaintiff: Adv GV Meijers
Instructed
by: Marais Attorneys
[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]
See
also
Koth
Property Consultants CC v Lepelle-Nkumpi Local Municipality Ltd
2006 (2) SA 25
(T) para [9] at 28, 29;
FNB
of SA Ltd v Perry NO
2001 (3) SA 960
(SCA) para [6] at 965;
Klokow
v Sullivan
2006 (1) SA 259
(SCA) para [15] at 265.
[10]
Barrett
v Rewi Bulawayo Development Syndicate Ltd
1922 AD 457
at 458-459
[11]
Barclays
National Bank Ltd v Thompson
1989 (1) SA 547
(A)at 553F-G
[12]
Terminus
Centre CC v Henry Mansell
(Pty) Ltd 2006 JDR 0047 (C)atp27-37
[13]
Hazis
v Transvaal and Delagoa Bay Investment Co Ltd
1939 AD 372
@388-389