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[2016] ZAGPJHC 111
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Mosothokazi Share Trust and Others v Broll Auctions And Sales (Pty) Ltd and Another; In re: Broll Auctions And Sales (Pty) Ltd and Another v Mosothokazi Share Trust and Others (29772/2015) [2016] ZAGPJHC 111 (13 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
29772
/2015
DATE:
13 MAY 2016
In
the matter between:
Mosothokazi
Share
Trust
...................................................................................................
First
Plaintiff
Skosana,Brian
.................................................................................................................
Second
Plaintiff
Skosana,
Thozama
Reineth
..............................................................................................
Third
Plaintiff
Mendonca,
Roberto
Jorge
..............................................................................................
Fourth
Plaintiff
And
Broll
Auctions and Sales (Pty)
Ltd
................................................................................
First
Defendant
Lesnorene
CC
..............................................................................................................
Second
Defendant
In re:
Broll
Auctions and Sales (Pty)
Ltd
..................................................................................
First
Excipient
Lesnorene
CC
................................................................................................................
Second
Excipient
And
Mosothokazi
Share
Trust
.............................................................................................
First
Respondent
Skosana,Brian
...........................................................................................................
Second
Respondent
Skosana,
Thozama
Reineth
........................................................................................
Third
Respondent
Mendonca,
Roberto
Jorge
........................................................................................
Fourth
Respondent
Judgment
Van der Linde,
J:
Introduction
[1]
This is an application by the applicants to
amend the particulars of their claim
[1]
.
The amendment
[2]
is opposed on the basis that that if granted, the particulars of
claim would remain excipiable on the ground that they are vague
and
embarrassing.
[2]
The
bases on which the two respondents’ contention is founded were
crystallised during oral argument and became, essentially,
these:
locus
standi
,
in that it is not clear that the contract relied on by the applicants
was actually concluded with the applicant and not
a close
corporation; misrepresentation, in that the applicants have not made
it plain whether they are relying on intentional (fraudulent),
negligent, or innocent misrepresentation; and that according to the
proposed amendment, the first plaintiff would be acting for
himself
and not the trust.
[3]
The
second defendant added also the submission that the cause of action
based on the Consumer Protection Act falls to the ground
because the
applicants do not aver facts that bring that cause of action within
the ambit of the CPA.
[4]
Before considering more closely these
objections, it is necessary to state some general principles
concerning exceptions that are
relevant in this matter.
[3]
The first principle is that exceptions are there to weed out
unmeritorious causes, whether claims or defences. They are not there
to exact perfection in pleading.
[5]
The
second principle is that in considering whether a pleading is
excipiable, the pleading must be viewed from the perspective of
every
reasonable interpretation that it can bear. Unless thus viewed the
pleading remains vague and embarrassing, the exception
cannot
succeed.
[6]
The
third principle is that an exception on the basis that the pleading
is vague and embarrassing needs to strike at the pleading
as a whole,
and not only certain paragraphs, before it will succeed.
[7]
The
fourth principle is that a plaintiff need only set out the framework
of its cause of action in its particulars of claim; evidence
is not
required to be pleaded.
The
applicants’ case, in a nutshell
[8]
The
consideration of the proposed amended particulars of claim begins
with what it is, on a reasonable reading of the pleading that
the
applicants are seeking to attain. Starting at its most simplistic
level, the plaintiff is a trust that bought immovable property
at an
auction. It says that it bought the property on the basis of a
misrepresentation about it having certain six parking bays.
That
misrepresentation was made, according to the applicants, intending
that the applicant should rely on it.
[9]
In
fact the property did not have those parking bays. According,
says the applicant, it became entitled in law to avoid the
agreement,
which it did, before transfer to the trust had taken.
[10]However, the trust had paid
certain amounts pursuant to the sale, on account of the purchase
price. It wants that money back,
and the claim is for payment of that
amount.
Locus
standi
[11]
The
respondents’ argument here was that the intended paragraph 11.1
and 11.2 will still precede paragraph 12, which asserts
that a true
copy of the agreement said to have been concluded is annexed as POC1.
Within POC1, they argue, lies the vagueness which
they contend
embarrasses them in their ability to plead.
[12]
The context of POC1 is the immediately preceding
paragraphs 11.1 and 11.2. Those paragraphs assert that the (new)
first plaintiff,
Mr Brian Skosana, acted in his capacity as one of
the trustees of the Mosothokazi Share Trust bought 88 Iris Road,
Norwood when
he was the successful bidder at an auction. This auction
was conducted by the first respondent auctioneers on behalf of the
second
respondent seller.
[4]
[13]
Paragraphs
11.1 and 11.2 further explain that after the successful bid, a
written agreement was concluded on 9 June 2015 in terms
of which the
first respondent acted in its representative capacity as seller and
the second applicant (the new first plaintiff)
acted in his
representative capacity as purchaser. These assertions must be read
together with POC1.
[14]What unnerves the respondents
about POC1, is not that from pages 16 to 39 of the annexure, printed
on the first respondent’s
form, the agreement so asserted does
not appear; rather, they are concerned that at pages 40 to 43 there
are documents that suggest,
inchoately so but still, that on the
subsequent date of 15 July 2015 the second applicant bought the same
property from the same
seller but in his capacity as member of Vetho
Apartment Hotels.
[15]The documents are two pages
(40, 41) that simply record the assertion that such a sale had taken
place at an auction; a deed
of suretyship (42) whereby the second
applicant and the third applicant bind themselves as sureties in
favour of the seller represented
by the first respondent, but without
identifying the sale concerned; and a resolution (43) whereby the
second and third applicants
are authorised as members of Vetho
Apartment Hotels “
to sign all
documents relating to this transaction.”
[16]
The
respondents argue that these documents muddy the waters of a straight
sale between the trust (duly represented) and the second
respondent
(duly represented). In my view the documents are a clear aberration.
They do not expressly represent a sale, since no
sale agreement
between the second respondent and Vetho Apartment Hotels is annexed.
All they do is to raise a question as to their
relevance.
[17]They do not prove an
agreement between parties other than those that were expressly
asserted in the qualifying paragraphs 11.1
and 11.2 that precede the
reference in the particulars of claim to POC 1. Therefore, at
best for the respondents, they raise
questions; but they do not
detract from the central assertion of the sale agreement that is
actually relied on in the pleading.
The pleading as a whole is thus
not rendered vague; at best paragraph 12 is potentially vague.
Misrepresentation
[18]
The
central argument here was that the applicants should have pleaded
whether the misrepresentation they rely on was intentional,
negligent, or innocent. If negligent, they should also have pleaded
the grounds of negligence relied on.
[19]
The applicants’ case, as summarised above,
was for return of what they had paid pursuant to a sale agreement
which they had
avoided for misrepresentation. In the proposed
amendment it is made clear that they paid R1 533 400 as
part deposit and
part commission plus VAT.
[5]
In law, an agreement concluded on the strength of an innocent
misrepresentation can be avoided; it is not necessary to show either
negligence or intention.
[6]
[20]
As it happens, the applicants have asserted
negligent misrepresentation.
[7]
But that is, in the context of the pleaded case, merely a
plus
petitio
, not affecting the substantive
requirements needed to be shown to recover payment made under an
agreement that is avoided for misrepresentation.
The second
applicant is purporting to act for himself
[21]
Here
the argument is that in the concluding prayer of the particulars of
claim, it is stated: “Wherefore, the first plaintiff
prays for
judgment as follows:…”. The argument is that the second
applicant has no right to claim for himself the
moneys paid under the
agreement sought to be avoided. He can only do so in his capacity as
trustee, assisted by all the other trustees.
[22]
It
has been pointed out above that the expressly pleaded case is that
the second applicant concluded the agreement in his capacity
as a
trustee of the Mosothokazi Share Trust, and that he was duly
authorised thereto. The intended paragraphs 15 and 16 again assert
the conclusion of the agreement, in respect of which one now knows
that the second applicant was representing the trust. In paragraph
16, admittedly, it is not again expressly stated that performance of
the second applicant of the payment obligations in terms of
the sale
agreement was in his expressly stated representative capacity.
[23]But either it was not
necessary, and the intended paragraph 16 should be read as such; or
the intended paragraph 16 should be
read as such on the benevolent
interpretation approach; or at best for the respondents, it is one
swallow that does not make a
summer: the entire particulars of claim
are not rendered vague and embarrassing to the extent that the
respondents do not know
what case they have to meet.
[24]
What
goes for the intended paragraph 16 also goes for the concluding
prayer; the former is really the introduction to the latter.
The
Consumer Protection Act, 68 of 2008
, complaints
[25]
The
complaint here is essentially that the applicants have not pleaded
the facts that bring the case without the application sphere
of the
CPA. The applicants’ assertion here is in the intended
paragraph 22.1, which is to the effect that the first respondent,
acting as the second respondent’s auctioneer, is bound by
section 45
of the CPA, read with its regulations.
[26]
I
agree that a proper pleading was required to have asserted the facts
that bring the matter within the reach of the CPA. But the
cause of
action under the CPA is expressly asserted to be in the alternative.
If the proposed amendments in respect of this cause
of action were
refused, the matter will still go on. All that will happen is that a
later amendment will correct the absence of
the allegations.
[27]
Since
the lack of relevant assertions therefore does not strike at the
entire particulars of claim, I do not believe it is appropriate
to
uphold the complaint in respect of the CPA alternative cause of
action.
[28]
In
the result the objections are dismissed and the proposed amendment is
granted. In make an order in the following terms:
(a)
The
amendment sought in applicants’ notice dated 9 November 2015,
pages 154 to 162 of the papers, is granted.
(b)
The
respondents are to pay the costs of the application for amendment,
jointly and severally, the one paying the other to be absolved.
WHG van der
Linde
Judge, High
Court
Johannesburg
For the first
excipient: Adv H Van Beek(082 570 7924)
Instructed
by: Schindler Attorneys
Second Floor,
3 Melrose Boulevard
Melrose
Arch
Johannesburg
Tel:
011448 9600
Ref: Mr
Binneman/tlw/G12473
For the
second excipient: Adv M Suttner (082 979 5198)
Instructed
by: Liora Bamberger Attorneys
12 Kramer
Road, Kramerville
Johannesburg
Tel:
011783 7229
Ref:Mrs
L Bamberger
Date argued: 6 May,
2016
Date of
judgement: 13 May, 2016
[1]
The current POC are at pp6 – 15, with
annexures following afterwards.
[2]
Which is to be found at p154 ff.
[3]
See generally Nasionale Aartappel Kooperasie Bpk
v Price Waterhouse Coopers Ing en Andere, 2001(2) SA 790 (T);
Telematrix (Pty)
Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority 2006 (1) SA 461 (SCA).
[4]
There was also an argument raised that the
applicants were obliged to have said whether the mandate between the
two respondents
was oral or in writing, and if in writing, were
obliged to have annexed a copy. This only applies, in terms of
rule
18(6)
, if the contract is a link in the chain of the plaintiffs’
cause of action. The plaintiffs’ cause of action is the
conclusion of the sale agreement, the misrepresentation lading to
it, the payment made pursuant to it, and the consequent avoidance
of
the sale. The internal relationship between the parties to the sale
agreement is
facta probantia
,
not
facta probanda
.
[5]
Proposed paragraph 25, p159.
[6]
The respondents have not argued that POC 1
excludes any reliance, even for avoidance, on innocent
misrepresentations.
[7]
See intended paragraph 22.2.2, p 159.