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
>>
2019
>>
[2019] ZAGPJHC 22
|
|
Paramount Property Fund Limited v Haupt (2015/32685) [2019] ZAGPJHC 22 (27 February 2019)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
No. 2015/32685
In the matter between:
PARAMOUNT
PROPERTY FUND
LIMITED
Excipient
and
SEAN
PETER
HAUPT
Respondent
Case
Summary
:
Practice – Pleadings – Exception to particulars of claim
– whether pleading lacks averments which are
necessary to
sustain an action for damages resulting from a breach of contract –
exception upheld.
JUDGMENT
MEYER J
[1]
This is an exception against a particulars of claim on the basis that
the pleading lacks averments which are necessary to sustain
an action
for damages resulting from a breach of contract. The
respondent, Mr Sean Peter Haupt, instituted an action against
the
excipient, Paramount Property Fund Ltd (Paramount), wherein it claims
rectification of a written agreement concluded between
the parties,
damages resulting from an alleged breach of the contract and, in the
alternative, delictual damages based on an alleged
fraud.
[2]
It is trite that where the same claim is based on alternative causes
of action, an exception can be taken against one or more
of the
alternatives. (See
Du Preez v Boetsap Stores (Pty) Ltd
1978
(2) SA 177
(NC).)
By
the nature of exception proceedings, the correctness of the facts
averred in the particulars of claim must be assumed (see for
example
Trustees,
Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) paras 3-10;
Stewart
& another v Botha & another
[2008]
ZASCA 84
;
2008 (6) SA 310
(SCA) para 4).
The
excipient has to show that the pleading is excipiable on every
interpretation that can reasonably be attached to it. (See
Theunissen
en Andere v Transvaalse Lewendehawe Koöp Bpk
1988(2) SA
493(A) at 500 E-F.)
[3]
Paramount let premises to a close corporation, Peter Robin Haupt
(Nine) CC (the tenant). Because the tenant fell into
arrears
with the rentals that were payable in terms of the lease, Paramount
issued a rent interdict summons out of the regional
court, and the
movable items found at the leased premises were attached. A
sale in execution was scheduled but cancelled
due to interpleader
proceedings that had been instituted as a result of Mr Haupt claiming
to be the owner of a number of the attached
items.
[4]
The interpleader proceedings were settled in terms of a written
‘settlement agreement and payment arrangement’ (the
contract) that was concluded between Paramount and Mr Haupt. It
is recorded in the contract,
inter alia
that:
‘
d.
The Debtor [Mr Haupt] wishes to purchase all items on the premises,
should it be sold by the Sheriff on a sale in execution.
In an
attempt to save legal costs and time the Debtor has offered to make
payment for the attached goods and withdraw the interpleader
summons;
so that all goods can be removed from the premises and released from
the attachment. The sheriff has been made aware
of the
arrangements and wishes between the parties as set out in the
agreement.
e.
Ownership of the goods shall vest in the debtor once the last payment
is made in respect of the goods purchased by the debtor.’
The
contract then provides
inter alia
for the withdrawal of the
interpleader proceedings (clause 1), payment of the purchase price
(clauses 2 and 3) and that Mr Haupt
‘will remove the attached
goods from the premises, within 21 days of payment for (
sic
)
the amount referred to in 2’.
[5]
In its particulars of claim Mr Haupt alleges the conclusion of the
contract and he specifically pleads the essential terms of
a contract
of sale as agreed upon in terms of the contract: (a) that
Paramount sells and that he buys, (b) ‘all the
attached goods’
at the leased premises, (c) at a fixed price of R360 000 to be paid
in two instalments of R100 000 and R260
000 each. In the
alternative, he seeks rectification of the contract to provide that
the goods sold were ‘all the goods
as attached by the sheriff
and reflected in the inventory as drawn by the Sheriff of the
Krugersdorp Magistrates’ Court’.
[6]
Of relevance here is Mr Haupt’s further averments in paragraphs
5.9, 11 and 12 of the particulars of claim, which read
thus:
‘
5.9
All the goods as attached by the sheriff and reflected in the
inventory, as drawn by the Sheriff of the Krugersdorp Magistrates’
Court, being a complete inventory of the attached goods . . . was
(sic)
still
physically within the premises.
.
. .
11.
The Defendant breached the agreement in that at least 18 of the items
reflected in the first inventory was no longer physically
within the
premises. Attached here and marked as Annexure “SP8”
is a schedule depicting the 18 items (“the
18 items”)
with their respective fair and reasonable values (which collectively
amounts to R1 568 512.89) that were reflected
in the first inventory
but which were no longer physically within the premises.
12.
As a result of the Defendant’s breach, the Plaintiff has
suffered damages in an amount of R1 568 512,89 which is constituted
by the fair and reasonable value of the 18 items.’
[7]
Paramount contends that although Mr Haupt has pleaded that it
breached the agreement ‘in that at least 18 of the items
. . .
were no longer physically within the premises’, he failed to
plead any such contractual obligation on it. Mr
Haupt, on the
other hand, argues that the contractual obligation that was breached
is set out in clause 5.9 of the particulars
fo claim.
[8]
Mr Haupt’s contractual claim is not for the return of a
proportionate part of the price agreed as a result of a material
deficiency in the quantity of the goods sold to him. In
Welgemoed en Andere v Sauer
1974 (4) SA 1
(A) it was decided
that ‘[t]he legal effect of both a sale by measure
(ad
quantitatem)
and a sale by the piece
(ad corpus)
is that
the purchase price is adjusted
pro rata
in proportion to the
excess or shortfall in the property sold unless the contract
otherwise provides. In sales by measure
the adjustment follows
normaliter
; if the sale is by piece it follows only if the
deviation from the given measurement is sufficiently large’.
[9]
Mr Haupt’s contractual claim is also not founded upon a breach
of warranty. Instead, he claims damages for loss
sustained (the
fair and reasonable value) by reason of ‘at least 18 of the
items reflected in the first inventory was no
longer physically
within the premises’. But Mr Haupt does not allege any
contractual obligation on the part of Paramount
to ensure that the 18
items remained within the premises until they were removed by him.
Clause 5.8 of the particulars of
claim is a mere recordal that all
the goods attached by the sheriff and reflected in the inventory were
still inside the premises
presumably on the date of the conclusion of
the contract, or, at best for Mr Haupt, perhaps a warranty by
Paramount to that effect.
That averment, however, does not
amount to a contractual obligation on the part of Paramount to ensure
that the goods remain inside
the premises between the date of the
conclusion of the contract and the date when Mr Haupt took delivery
thereof. The
particulars of claim, therefore,
lack
averments which are necessary to sustain a cause of action for
damages resulting from a breach of contract.
[10]
In the result the following order is made:
(a) The exception
that
the particulars of claim
lack averments which are
necessary to sustain a cause of action for damages resulting from a
breach of contract is upheld with costs.
(b)
The respondent (plaintiff) is given leave to amend the particulars of
claim within a period of 15 days from the date of this order.
P.A. MEYER
JUDGE OF THE HIGH
COURT
Dates
of hearing: 4 December 2018
Date
of Judgment: 27 February 2019
Counsel
for Excipient: Adv BH Steyn
Instructed
by: SSLR Inc., Johannesburg
Counsel
for Respondent: Adv AJ Venter
Instructed
by: Symes Inc., Kilarney, Johannesburg