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[2016] ZAGPJHC 119
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Peaceful v Hepburn and Another; In re: Hepburn and Another v Peaceful (2016/00082) [2016] ZAGPJHC 119 (26 May 2016)
THE
HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 2016/00082
DATE:
26 MAY 2016
In
the matter between:
PEACEFUL
ANN
.......................................................................................................................
Excipient
And
HEPBURN
DRUMMOND
...........................................................................................
First
Respondent
TIGER
MICHAEL
ELLIOT
...................................................................................
Second
Respondent
In
Re:
HEPBURN
DRUMMOND
.................................................................................................
First
Plaintiff
TIGER
MICHAEL
ELIOT
............................................................................................
Second
Plaintiff
And
PEACEFUL
ANN
.....................................................................................................................
Defendant
JUDGMENT
RATSHIBVUMO
AJ
:
1.
The Plaintiffs (hereinafter “Respondents”),
instituted action proceedings against the Defendant (hereinafter
“Excipient”),
for recovery of the sum of R324 736.08
plus interest. According to the respondents, this is the amount of
damages they suffered
when repairing various patent defects in the
property they purchased from the Excipient. The property was sold
voetstoots
for R2 600 000.00. The Respondents allege that while these
defects were patent, they were not visible or discoverable
upon
inspection by them. It is their averment that the excipient had
knowledge of the defects and she knowingly or fraudulently
failed to
disclose them to the Respondents. The Respondents also seek a
declaration that the value of the house at the time of
sale was
R2 275 263.92 which is the difference between R2 600 000.00
and the amount spent in repairing the
said patent defects.
2.
Exception
:
The exception is against the particulars of claim with the Excipient
arguing that they lack the necessary averment to sustain
a cause of
action. Since not every aspect of the particulars of claim is being
excepted to, it is necessary to consider the grounds
of exception
first.
3.
The first ground of exception challenges
the particulars of claim where it is alleged that the defects were
patent: ‘the plaintiffs
fail to state why the alleged defects
were not visible or discoverable upon inspection by them.’ The
Excipient expresses
a view that if something is patent, it should be
visible. The second ground of exception is based on the
interpretation of the
exact wording or grammar used by the
respondents. The Excipient challenges paragraph 15 of the particulars
of claim where it is
alleged that had the Respondents been made aware
of the defects, they would not have bought the property and have as
such suffered
damages. The Excipient understands this paragraph to
also mean that the respondents allege they would have suffered
damages even
if they had not bought the property.
4.
The third ground of exception is to the
effect that since the respondents’ first alternative claim
appears to be premised
on a breach of contract as damages are
claimed, the plaintiff should have alleged not only that the property
had defects, but also
that the defendant expressly or tacitly
warranted either the absence of the defects or the presence of
qualities lacking in the
property sold. The Excipient again reminds
the Respondents at this stage that the property was sold
voetstoots
.
5.
As a fourth ground, the Respondents are
questioned for making a claim that appears to be based on
actio
redhibitoria
when they alleged that the
defects in the property substantially impaired the utility or
effectiveness of the property for the
purpose for which it was sold
which is to be used as residence. The exception is premised on the
lack by the Respondents to tender
restitution of the property.
6.
As a fifth ground, the Excipient excepts to
the particulars of claim for alleging that the Excipient knew of the
defects because
she is married to a developer. The Excipient also
excepts to the Respondents’ claim that she was negligent and
wrongful in
not pointing out the defects which they also failed to
detect upon inspection. As the last ground, the Excipient concludes
the
Respondents may have based their alternative claim on
actio
quanti minoris
when they claim that the
value of the property should be calculated less the amount spent in
remedying the defects. The Excipient
maintains that
actio
quanti minoris
requires calculation on
the actual value of the property as opposed to the purchase price.
7.
Lack of relief:
The
Respondents contend that the exception stands to be dismissed. The
first basis for this contention is that the exception like
any other
pleading should contain a relief, and there is none sought here. On
the date of hearing, counsel for the Excipient applied
from bar for
an amendment of the exception so it contained the necessary relief.
She also asked for the condonation in as far as
she failed to comply
with Rule 28. This application was opposed by the respondents.
8.
The
courts may on good cause condone non-compliance with the rules and
the burden is on the Excipient to show the good cause before
this
application can be allowed.
[1]
It became evident that the respondents did bring it to the attention
of the Excipient in advance that the exception was bad for
lack of
relief therein. There was a notice to amend the pleading served on
the Respondents in terms of Rule 28, which application
was not
opposed. When the Excipient was supposed to effect the amendment, she
served another notice to amend which prompts the
Respondents to now
argue that this could be a delaying tactic on the part of the
Excipient. Failure on the part of the Excipient
to set the exception
for hearing can only serve to give credence to this argument seeing
this application was set down by the Respondents.
9.
In
exercising its discretion on whether a good cause was shown, the
court cannot divorce the merits of the case from the application
made.
[2]
The court was not
convinced that there was a good cause for the condonation sought by
the Excipient. As demonstrated hereunder,
the merits of the case do
not seem to support the exception either. The court was also mindful
of the fact that although an exception
which lacks a prayer is bad,
the court can order an amendment to make good the defect, provided
there is no prejudice or injustice
caused to the respondent.
[3]
The request for condonation for non-compliance with the rules so as
to allow the exception amendment was therefore refused for
lack of a
good cause. The exception had to be argued with no relief in the
papers.
10.
No
notice to remove the cause of complaint.
The
Respondents submitted that failure by the excipient to give them
notice to remove the complaint was an irregularity justifying
a
dismissal of their application. This submission cannot be sustained
because it mistaken an exception that is based on a pleading
which is
vague and embarrassing to the one based on a pleading that does not
disclose a cause of action or defence. Such notice
is necessary in
respect of the former while it is not necessary in respect of the
latter.
[4]
The court now has to
consider the various grounds on which the exception is based.
11.
Particulars
of claim:
The
first and the sixth grounds of exception question how the Respondents
failed to notice the patent defects upon inspection if
they were
patent. The Excipient also gives her understanding of “patent”
as suggesting something that should have been
noticed on inspection.
The Oxford dictionary defines patent as meaning, “easily
recognisable; obvious.” From
www.dictionary.com
,
this
definition is extended to include “readily open to notice or
observation; evident; obvious.” It is apparent that
the
reference to the term “patent” by the Respondents is to
aver that the Excipient cannot claim not to know that the
defects
existed as opposed to anyone being able to observe them. Even if the
latter was the intention of the Respondents; whether
the defects are
patent would depend on who is observing, his skills and expertise.
Even if it was to be argued that there is a
contradiction in this
regard, the Excipient can still plead to that.
12.
As for the second ground, it appears the
excipient misread the relevant paragraph because upon arguing this
point, counsel could
not continue pursuing this line of argument. The
said paragraph reads, ‘[h]ad the First and Second Plaintiffs
been aware
of the existence of the aforesaid defects… the
First and the Second Plaintiffs would not have purchased the property
at
all and suffered damages as set out below.’ The Excipient
read this line as suggesting that the Respondents allege that even
if
they had not entered into the contract with her, they would still
have suffered damages. I do not see that line of interpretation
and
cannot see how this can be said not to disclose the cause of action.
13.
In respect of the third, the fourth and the
seventh grounds, the Excipient is of a view that the Respondents were
supposed to make
certain averments and certain offers; i.e. the
averment that the excipient expressly warranted the absence of
defects, the offer
for restitution of the property and calculating
the damages from the purchase price instead of calculating from the
value of the
property. Whether the Excipient is right in this regard,
it is for the trial court to rule, but this is plainly a plea she
could
have and still can raise. There is no basis upon which it can
be suggested that failure to make certain averments that the
Excipient
believes should have been made; can be interpreted as
lacking the cause of action. The fact that the Excipient is the wife
to the
developer is not the basis upon which the Respondents claimed
that she should have known of the defects. The particulars of claim
merely allege that as a wife who shared common residence with her
husband who is alleged to have committed a number of these defects,
she should have known since this took place while she stayed there.
14.
The
applicable law:
In
Nxumalo
v First Link Insurance Brokers (Pty) Ltd
[5]
Moseneke J (as he then was) held,
“
The
onus is of course on the Excipient to show both vagueness amounting
to embarrassment and to embarrassment amounting to prejudice.
Where
the excipient relies on embarrassment, such must be demonstrated by
having regard to the pleadings only. The attack must
arise from
within the four walls of the pleadings which is the source of the
complaint and what is more,
such
embarrassment must not be frivolous, it must be substantial
... Therefore, the ultimate test on whether an exception should be
upheld is whether the excipient is prejudiced.” [own emphasis].
15.
Cause
of action was defined by the Appellate Division as “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.”
[6]
The Appellate Division has repeatedly held,
“
[I]n
order to succeed an excipient has the duty to persuade the court that
upon every interpretation which the pleading in question,
and in
particular the document on which it is based, can reasonably bear, no
cause of action or defence is disclosed; failing this,
the exception
ought not to be upheld.
[7]
16.
It
is trite that the proper approach to be adopted by the court is to
adjudicate the validity or otherwise of the exception on the
basis of
the facts alleged by the plaintiff being regarded as correct. The
court must look at the pleading excepted to, as it stands.
No facts
outside those stated in the pleading can be brought into contention
and no reference may be made to any other documents.
In order to
succeed, the Excipient has the duty to persuade the court that upon
every interpretation which the pleading in question
can reasonably
bear, no cause of action is disclosed.
[8]
17.
In
essence, an exception which can be cured by evidence at the trial
will not succeed.
[9]
Exception
cannot be used as a manner to plead as appears to be the case
in
casu
.
The exception raised here fails to meet the minimum requirements in
many respects and as such it stands to be dismissed.
18.
For the reasons stated above, the following
order is made:
18.1The
exception is dismissed with costs.
18.2The
excipient is ordered to deliver a plea within 20 days from the date
of this order.
T.V.
RATSHIBVUMO
ACTING
JUDGE OF THE HIGH COURT
Date
Heard: 16 May 2016
Judgment
Delivered: 26 May 2016
For the
Excipient: Adv. F Bezuidenhout
Instructed by: PS
Geddes Attorneys
Johannesburg
For the
Respondents: Adv. RG Cohen
Instructed by:
Glynnis Cohen Attorneys
Johannesburg
[1]
Rule
27 (3). See also
Du
Plooy v Anwes Motors
(EDMS)
BPK
1983 (4) SA 212
(O).
[2]
Du
Plooy v Anwes Motors(supra).
[3]
Vernon
and Others NN.O v Bradley and Others NN.O
1965
(1) 422 (NPD) at p. 424A-B.
[4]
Chapman
v Proclad (Pty) Ltd
1978 (2) SA 336
(NC) at 339; Joffe et al “
High
Court Motion Proceedings
”
at 1-34.
[5]
2003
(2) SA 620
(T)
[6]
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
1922
AD 16
at 23. This definition was quoted recently in
Gardener’s
Grapevine CC t/a Grapevine v Flowcrete Precast CC
2009
(1) SA 324
(N)
[7]
See
Theunissen
v Transvaalse Lewendehawe Koöp Bpk
1988
(2) SA 493
(A) at 500E–F;
Lewis
v Oneanate (Pty) Ltd
[1992] ZASCA 174
;
1992
(4) SA 811
(A) at 817F and
Sun
Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996
(4) SA 176
(A) at 183E;
[8]
see
Erasmus Superior Court Practice page B1–151
[9]
See
Sanan
v Eskom Holdings Ltd
2010
(6) SA 638
(GSJ) at 645D by Claasen J.