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[2016] ZAGPJHC 348
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Von Botticher v Audatex (Pty) Ltd (11904/2015) [2016] ZAGPJHC 348 (22 April 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
11904/2015
DATE:
22/4/2016
In the
matter between:
INGO
VON
BOTTICHER
Plaintiff
and
AUDATEX
(PTY)
LTD
Defendant
J
U D G M E N T
MAHALELO,
AJ
:
[1] This
is an exception against the plaintiff’s particulars of claim in
that same lacks the necessary averments to sustain
a cause of action,
alternatively is vague and embarrassing. The plaintiff’s
claim is dependent upon a written agreement
which was subject to a
suspensive condition. The attack against the cause of action pleaded
was directed at the validity of that
agreement.
FACTS
[2] On 11
December 2013 the plaintiff and the defendant entered into a written
Settlement Agreement the terms of which were inter
alia, that the
plaintiff’s employment with the defendant shall terminate by
mutual agreement with effect from 10 December
2013 and 2437
Restricted Stock Units held by Solera Holdings
Incorporated to vest in the plaintiff on the same date.
Clause 11 of
the Settlement Agreement contained a suspensive condition the terms
of which were that:
2.1.1
the
plaintiff procures the amicable termination of the agreement entered
into between the defendant and E-Parts (Pty) Ltd (E-Parts)
dated 5
January 2009 by no later than 31 March 2014;
2.1.2
the
plaintiff procures that E-Parts furnishes the defendant with an
Intellectual Property Release (“
IRP
”)
at no cost to the defendant by no later than 31 March 2014 in terms
of which the defendant will formally receive assignment
from E-Parts
all Intellectual Property (IP).
[3]
During December 2013 the defendant entered into negotiations with
E-Parts with regard to the formal assignment from E-Parts,
of all IP
owned by E-Parts to the defendant and on 18 June 2014 entered into a
written agreement in terms of which E-Parts formally
assigned the
E-Parts IP to the defendant, who, in turn accepted assignment thereof
with effect from 11 March 2014.
[4] On 27
March 2015 the plaintiff issued summons against the defendant for an
order vesting in the plaintiff 2 437 Restricted
Stock Units (
“
RSUs
”) held in the defendant by Solera Holdings
Incorporated (“
Solero
”) alternatively payment of
US $151 069.63 with interest
[5] The
plaintiff averred that the conduct of the defendant set out in
paragraph 3 above constituted a waiver of the suspensive
conditions
of the Settlement Agreement, thereby relieving him from any
obligation to fulfil the suspensive condition. It is further
averred
by the plaintiff that, the defendant, pursuant to its waiver of the
suspensive condition, became obliged to do all such
things, to
perform all such steps and to procure the vesting of the RSUs in the
plaintiff with effect from 10 December 2013.
[6] The
plaintiff asserts that it has called upon the defendant in writing
to,
inter alia
, procure the vesting of the RSUs in it, the
defendant has failed and/or refused to comply thereby breaching the
terms of
the Settlement Agreement.
[7] In
its notice of exception, the defendant contended that:
(a)
the Settlement Agreement was subject to a suspensive condition
which was to be fulfilled or waived by
no later than 31 March 2014,
(b)
the agreement concluded between it and the plaintiff had lapsed
due to failure by the plaintiff to fulfil
or waive the suspensive
condition and is of no force or effect,
(c)
the plaintiff cannot rely on the agreement entered into between
the defendant and E-Parts dated 18 June 2014 to
contend that the
defendant waived the suspensive condition as that agreement was
concluded after 31 March 2014
,(d)
as a consequence, the particulars of claim do not
disclose a legally permissible cause of action or does
not
provide sufficient particularity to indicate on what legal basis the
plaintiff is entitled to rely.
THE
RELEVANT LEGAL PRINCIPLES
[8] It is
trite that there is often a overlap between exceptions based on a
vague and embarrassing complaint, and those relating
to lack of
particularity required by rule 18(4). Where a plaintiff’s
pleadings do not comply with the requirement of rule
18 in that for
an example, the specific particulars are not set out therein, and are
also vague and embarrassing the defendant
has a choice whether to
proceed in terms of rule 18 or rule 23 procedure. A defendant is
entitled to bring both procedures in the
alternative.
[9] It is
a basic principle that particulars of claim should be so phrased that
the defendant may reasonably and fairly be required
to plead thereto.
It is also trite that the object of pleadings is to enable each side
to come to trial prepared to meet the case
of the other and not be
taken by surprise. Pleadings must therefore be lucid and logical and
in an intelligible form, and the cause
of action must appear clearly
from the factual allegations made. In order to ensure that a
summons is not excipiable on the
ground that it does not disclose a
cause of action, the plaintiff must allege the
facta probanda
(the facts which must be proved in order to disclose the cause of
action) and not the
facta probantia
, (the facts or evidence
which proves the
facta probanda
).
[10] In
McKenzie v Farmer’s Cooperative Meat Industries Ltd
1922
AD 16
at 23 the following definition of “
cause of action
”
was accepted by the Appellate Division:
“…
every fact which
it would be necessary for the plaintiff to prove, if traversed, in
order to support his right to 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.
”
[11] In
Vermeulen v Goose Valley Investments (Pty) Ltd
2001 (3) SA 986
(SCA) Marais JA stated the following at 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.
”
[12]
Where an exception to a pleading is based on the ground that it is
vague and embarrassing, the court has to consider whether
the
pleading lacks particularity to the extent that it is vague and
whether the vagueness causes embarrassment of such a nature
that one
is prejudiced. This prejudice lies in the excipient’s inability
properly to prepare to meet the opponent’s
case. Where a
court upholds an exception on the ground that it is vague and
embarrassing, leave to amend is generally granted
to the party who
produced the excipiable pleading.
[13] The
approach to be adopted where a matter involves a complaint that a
pleading is vague and embarrassing therefore excipiable
was
identified in
Jowell v Bramwell-Jones and Others
1998 (1) SA
836
(W) at 905H-I as follows:
“
12.1
The question must first be asked whether the exception goes to
the heart of the claim; and
12.2
If so, whether it is vague and embarrassing to the extent that the
defendant does not know the
claim he has to
meet; and
12.3Should
he find that an exception on any ground fails, to then ascertain in
the second place whether the particulars identified
by the defendant
are strictly necessary in order to plead and, if so, whether the
material facts are unequivocally set
out.”
[14] In
Frank v Premier Hangers CC
2008 (3) SA 594
(C) Griesel J
stated as follows at paragraph [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.
”
THE
EXCEPTION
[15] It
is trite that from the nature of exception proceedings, the court
must assume that the facts alleged in the relevant pleadings
are
correct. The excipient should therefore satisfy the court that
even with such an assumption, the pleading does not disclose
a cause
of action. One will therefore have to accept as pleaded in the
particulars of claim that:
15.1
The plaintiff and defendant concluded a written Settlement Agreement
which was subject to a suspensive condition.
15.2The
suspensive condition was to be fulfilled or waived by no later
than 31 March 2014.
15.3The
suspensive condition was for the sole benefit of the defendant which
the defendant was accordingly entitled to waive.
5.4
During December 2013 the defendant entered into negotiations with
E-Parts, the subject matter of which was the formal
assignment from
E-Parts of all intellectual Property owned by E-Parts to the
defendant.
15.5
On 18 June 2014 the defendant and E-Parts concluded a written
agreement (the IP Assignment Agreement) in terms
of which E-Parts
formally assigned the E-Parts IP to the defendant.
15.6
The IP Assignment Agreement has its effective date as 1 March 2014.
[16] The
plaintiff contended that, the conduct of the defendant mentioned in
sub paragraphs 15.4, 15.5 and 15.6 above constituted
a waiver of the
suspensive condition, the plaintiff was relieved from any obligation
to fulfil the suspensive condition, accordingly
the defendant became
obliged to procure the vesting of the RSUs in the plaintiff with
effect from 10 December 2013. It will be
for the defendant to
disprove such allegations by way of acceptable evidence. No evidence
is presented in exception proceedings.
[17] In
my view the plaintiffs has pleaded the
facta probanda
to
sustain a claim under the Settlement Agreement. I also find that the
exception raised in this regard does not meet the requirement
that
upon every interpretation which the pleading can reasonably bear, no
cause of action is disclosed. It is incumbent on a plaintiff
to plead
only a complete cause of action that identifies the issues on which
the plaintiff seeks to rely, and on which evidence
will be led, and
which allows the defendant to plead to it.
[18] An
attack mounted by a defendant that particulars of claim are vague and
embarrassing cannot be found on the mere averment
that they are
lacking in particularity and where the complaint is one of lack of
particularity, the remedy is to request discovery
or particulars for
trial. See
Nel and Others NNO v McArthur and Others
2003 (4)
SA 142
(T) at 147.
[19]
Whether the suspensive condition has been fulfilled or waived, and
whether the plaintiff can rely on the 18 June 2014 agreement
in my
view, is a matter to be decided at trial.
[20] The
exceptions must therefore fail.
[21] In
the result the following order is made:
21.1
The exception is dismissed with costs.
_________________________________________________
M
B
MAHALELO
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
APPEARANCES
Counsel
for the Plaintiff: Adv HP West
Instructed
by: Dr Wooley Attorneys
Counsel
for the Defendant: Adv E Rudolph
Instructed
by: Werksmans attorneys
Date of
Hearing: 2 February 2016
Date of
Judgment: 22 April 2016