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[2010] ZAGPJHC 104
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Inzinger v Hofmeyr and Others (7575/2010) [2010] ZAGPJHC 104 (4 November 2010)
IN THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
[REPUBLIC OF SOUTH
AFRICA]
CASE NO 7575/2010
DATE: 04/11/2010
REPORTABLE
In the matter between
INZINGER,
MAXIMILLIAN JOSEPH
Plaintiff/Respondent
and
HOFMEYR,
ANDREW WILLIAM
.
First
Defendant/Excipient
and
4 others
JUDGMENT
REYNEKE AJ:
INTRODUCTION
1.
The
plaintiff instituted action against five defendants in which it is
stated that no relief is sought against the third defendant.
The
first, second, fourth and fifth defendants [“the defendants”]
are defending the claim and have delivered an extensive
notice in
terms of Rule 23[1] of the High Court Rules. The defendants
maintain that the plaintiff failed to remove the causes
of complaint
as a result of which they delivered a notice of exception.
In the notice of
exception the defendants have prayed for an order that the exception
be upheld and that the plaintiff’s particulars
of claim be
struck out in its entirety as well as for a punitive costs order.
The defendants have
raised 27 grounds of exception of which the thirteenth and fourteenth
grounds were not proceeded with. Considering
the wide ambit the
grounds of exception it is useful to restate the legal principles
relating to pleadings and exceptions thereto.
THE PRINCIPLES RELATING
TO EXCEPTIONS
2.
An
exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and its legal validity.
It is not
directed at a particular paragraph within a cause of action but at
the cause of action as a whole, which must be demonstrated
to be
vague and embarrassing. As was stated in
Jowell
v Bramwell-Jones and others
1998 [1] SA 836 W at 905E-H:
“
I
must first ask whether the exception goes to the heart of the claim
and, if so, whether it is vague and embarrassing to the extent
that
the defendant does not know the claim he has to meet…”
3.
Vagueness
amounting to embarrassment and embarrassment in turn resulting in
prejudice must be shown. Vagueness would invariably
be caused
by a defect or incompleteness in the formulation and is therefore not
limited to an absence of the necessary allegations
but also extends
to the way in which it is formulated. An exception will not be
allowed, even if it is vague and embarrassing unless
the excipient
will be seriously prejudiced if compelled to plead to pleading
against which the objection lies.
The approach to be
adopted and applicable considerations were described as follows in
Trope v South African Reserve Bank
1992 [3] SA 208 T at
`221A-E :
“
An
exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such
a nature
that the excipient is prejudiced (Quinlan v MacGregor
1960 (4) SA 383
(D) at 393E-H). As to whether there is prejudice, the ability of the
excipient to produce an exception-proof plea is not the only,
nor
indeed the most important, test - see the remarks of Conradie J in
Levitan v Newhaven Holiday Enterprises CC
1991 (2) SA 297
(C) at
298G-H. If that were the only test, the object of pleadings to enable
parties to come to trial prepared to meet each other's
case and not
be taken by surprise may well be defeated.
Thus it may be possible
to plead to particulars of claim which can be read in any one of a
number of ways by simply denying the
allegations made; likewise to a
pleading which leaves one guessing as to its actual meaning. Yet
there can be no doubt that such
a pleading is excipiable as being
vague and embarrassing - see Parow Lands (Pty) Ltd v Schneider
1952
(1) SA 150
(SWA) at 152F-G and the authorities there cited.
It follows that averments
in the pleading which are contradictory and which are not pleaded in
the alternative are patently vague
and embarrassing; one can but be
left guessing as to the actual meaning (if any) conveyed by the
pleading.”
THE REQUIREMENTS OF RULE
18[4]
4.
Rule
18[4] requires that each pleading in an action, as opposed to an
affidavit in motion proceedings
“…
shall
contain a clear and concise statement of the material facts upon
which the pleader relies for his claim … with sufficient
particularity to enable the opposite party to reply thereto.”
5.
Rule
18[4] imposes a “Goldilocks test” in the sense that it
requires a balance between too few and too many allegations.
Too few
allegations could render it excipiable for lack of the necessary
averments whilst too many create the risk that unnecessary
allegations could render the pleading vague and embarrassing.
“
A
pleading should not contain matter irrelevant to the claim. The facts
whereon a plaintiff relies should be concisely stated in
his
particulars of claim and these facts only, and no other, should be
pleaded. However, for the sake of clarity it is sometimes
necessary
to plead history. The pleader should do this with caution. Unless
such history is clearly severed from the cause of action
the pleading
may be rendered vague and embarrassing.”
Secretary
for Finance v Esselmann
1988
[1] SA 594 SWA at 597G-H
6.
The
significance and requirements of Rule 18[4] were commented on in
Trope
v South African Reserve Bank
[supra] at 210G – J:
“
It
is, of course, a basic principle that particulars of claim should be
so phrased that a defendant may reasonably and fairly be
required to
plead thereto. This must be seen against the background of the
further requirement 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; the cause of action or defence must
appear clearly from the factual allegations
made (Harms Civil
Procedure in the Supreme Court at 263-4). At 264 the learned author
suggests that, as a general proposition,
it may be assumed that,
since the abolition of further particulars, and the fact that
non-compliance with the provisions of Rule
18 now (in terms of Rule
18(12)) amounts to an irregular step, a greater degree of
particularity of pleadings is required. No doubt,
the absence of the
opportunity to clarify an ambiguity or cure an apparent
inconsistency, by way of further particulars, may encourage
greater
particularity in the initial pleading.
The ultimate test,
however, must in my view still be whether the pleading complies with
the general rule enunciated in Rule 18(4)
and the principles laid
down in our existing case law.”
7.
This
exception requires a consideration of what is required of pleadings,
and in particular particulars of claim, to meet the requirements
of
Rule 18[4] which seems to postulate two basic requirements,
both of which need to be met constitute compliance with Rule
18[4].
The first requirement [i.e. that the pleading should contain the “…
material
facts upon which the pleader relies for his claim
”]
relates to the substance of a pleading. The second requirement
[i.e. that it should consist of a “…
clear
and concise statement…
”
of “…
sufficient
particularity to enable the opposite party to reply thereto”
]
deals with way in which a pleading should be formulated. Each
of the requirements is dealt with separately hereunder.
The “…
material
facts upon which the pleader relies for his claim
”
8.
The
first requirement poses the question as to what “…
material
facts
…”
are. It requires a pleading to disclose a cause of action or
defence as the case may be, even if this may
not be expressly stated
in Rule 18[4]. Rule 18[4] is however interpreted and applied as
requiring that a cause of action
[or defence] must be contained in
the pleading.
[See
Makgae v
Sentraboer [Koöperatief] Bpk
1981 [4] SA 239 T at 244C]
9.
The
term “cause of action” was defined in
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
1922 AD 16 at 23 as “…"
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the 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
."
10.
In
Evins
v Shield Insurance Co Ltd
1980 [2] SA 814 A at 825G it was said that “cause of action “…
is
ordinarily used to describe the factual basis,
the
set of material facts, that begets the plaintiff's legal right of
action
.”
[my emphasis]
The requirement that a
cause of action be contained in a pleading can and should therefore
be read into the words “material
facts”, which would in
turn imply that only facts which serve to establish the cause of
action would be regarded as “material”.
The
converse also applies, namely that allegations that do not serve to
establish the cause of action would not qualify as being
“material”.
The need to distinguish
between
facta probanda
and
facta probantia
is a further
aspect of the requirement that material facts only be pleaded
.
[See
Makgae v Sentraboer [Kooperatief] Bpk
supra
at
244C-H]
Facta probanda
should be distinguished from “pieces
of evidences” [
facta probantia
] required to prove the
true
facta probanda
. [
King's Transport v Viljoen
1954
(1) SA 133 (K) at 138 – 139] As was remarked in
Dusheiko
v Milburn
1964 (4) SA 648 (A) at 658A:
"I
venture to think that most difficulties will in practice be resolved
if, in applying the definition stated in McKenzie v
Farmers'
Co-operative Meat Industries Ltd (supra) to any given case, it is
borne in mind that the definition relates only to 'material
facts',
and if at the same time due regard be paid to the distinction between
the facta probanda and the facta probantia."
11.
Facta
probantia
has
no place in a pleading and the contents of any pleading should be
restricted to those facts only which serve to establish the
cause of
action, excluding any evidence required to prove them.
A pleader’s own
opinions and conclusions should equally be excluded from his
pleading. Commenting on Rule 18[4] De Klerk
J in
Buchner and
another v Johannesburg Consolidated Investment Co Ltd
1995 [1] SA
215 T at 216H-J stated the following:
“
I
emphasize the words 'shall contain a clear and concise statement of
the material facts'.
The necessity to plead
material facts does not have its origin in this Rule. It is
fundamental to the judicial process that the
facts have to be
established. The Court, on the established facts, then applies the
rules of law and draws conclusions as regards
the rights and
obligations of the parties and gives judgment. A summons which
propounds the plaintiff's own conclusions and opinions
instead of the
material facts is defective. Such a summons does not set out a cause
of action. It would be wrong if a Court were
to endorse a plaintiff's
opinion by elevating it to a judgment without first scrutinizing the
facts upon which the opinion is based.”
The learned Judge
continued at 217E-G:
“
The
conclusion that the appellants are liable can only be reached or
justified if those terms support the conclusion set out in
the
summons. … I realise that the exposition of the facts
contained in a summons is no more than the pleader's opinion,
or of
his averment as to what the facts are. If such a statement is not
disputed those alleged facts have to be accepted as proven.
An
opinion or conclusion as to what the parties' liabilities are, even
if undisputed, does not become a statement of fact and a
failure to
dispute the conclusion is of no consequence.”
12.
This
first requirement of necessity puts the pleader’s legal
knowledge of what the necessary allegations or essential elements
are
to sustain a cause of action to the test. As Hiemstra J so aptly
reminded all would-be pleaders:
“
The
case will have to turn mainly on the pleadings, and it vividly
illustrates the truth of what the late Prof. Wille used to say:
‘
Before
you can draw a pleading you've got to know the law.’"
Alphedie
Investments [Pty] Ltd v Greentops [Pty] Ltd
1975
[1] SA 161 T at 161H
A “…
clear
and concise statement
…” of “…
sufficient
particularity to enable the opposite party to reply thereto
”
13.
Whereas
the first requirement concerns itself with the substantive law, the
second requirement relates to the formulation and structure
of the
pleading in determining whether the pleading contains a “…
clear
and concise statement…
”
of “…
sufficient
particularity to enable the opposite party to reply thereto”.
The
judgment in
Imprefed
[Pty] Ltd v National Transport Commission
1993 [3] SA 94 A at 107C - E serves as a useful point of departure in
analysing
this
requirement:
“
At
the outset it need hardly be stressed that:
'The
whole purpose of pleadings is to bring clearly to the notice of the
Court and the parties to an action the issues upon which
reliance is
to be placed.'
(Durbach v Fairway Hotel
Ltd
1949 (3) SA 1081
(SR) at 1082.)
This fundamental
principle is similarly stressed in Odgers' Principles of Pleading and
Practice in Civil Actions in the High Court
of Justice 22nd ed at
113:
'The object of pleading
is to ascertain definitely what is the question at issue between the
parties; and this object can only be
attained when each party states
his case with precision.'
The degree of precision
obviously depends on the circumstances of each case.”
14.
To
achieve this goal it has been stated that
“
Pleadings
must be lucid, logical and intelligible. A litigant must plead his
cause of action or defence with at least such clarity
and precision
as is reasonably necessary to alert his opponent to the case he has
to meet. A litigant who fails to do so may not
thereafter advance a
contention of law or fact if its determination may depend on evidence
which his opponent has failed to place
before the court because he
was not sufficiently alerted to its relevance.”
National
Director of Public Prosecutions v Phillips and others
2002 [4] SA 60 W
at 106E-H
15.
Aside
from carefully formulating sentences and choosing the language the
structure of a pleading will be determinative whether it
meets the
requirements of conciseness, lucidity, logic, clarity and precision.
Pleadings that are “…
a
rambling preview of the evidence proposed to be adduced at the
trial
…”
do not meet the requirements of clause 18[4] and would be excipiable
as being vague and embarrassing.
[See
Moaki v Reckitt
and Colman [Africa] and another
1968 [3] SA 98 A at 102A-B;
16.
It
follows that the more complex the matter is the greater would be the
demands for conciseness, lucidity, logic, clarity and precision.
[See
Swissborough
Diamonds Mines [Pty] Ltd and others v Government of the Republic of
South Africa and others
1999 [2] SA 279 T at 324C;
Imprefed
[Pty] Ltd v National Transport Commission
,
supra
,
at 107C]
It follows that the more
complex the matter is the greater would be the demands for
conciseness, lucidity, logic, clarity and precision.
[See
Swissborough Diamonds Mines [Pty] Ltd and others v Government of
the Republic of South Africa and others
1999 [2] SA 279 T at
324C;
Imprefed [Pty] Ltd v National Transport Commission
,
supra
, at 107C]
The
Rules provide a valuable indication of structure to be adopted.
Rule 18[3] requires that “
Every
pleading shall be divided into paragraphs [including sub-paragraphs]
which shall be consecutively numbered and shall, as nearly
as
possible, each contain a distinct averment
.”,
whereas Rule 20[2] relating to declarations require that a
declaration “…
shall
set forth the nature of the claim, the conclusions of law which the
plaintiff shall be entitled to deduce of the claim from
the facts
stated therein and a prayer for the relief claimed.
”
The same should
apply to particulars of claim.
Arising from the above
following structure has been suggested for every pleading which has
to set out a cause of action. Firstly
the material facts that
are relied on for the cause of action should be pleaded. This
should be followed by any conclusions
of law, which the pleader
claims follow from the pleaded facts, provided that facts and
conclusions of law be kept separate. Finally
the pleading should
conclude with the relief sought. The structure suggests that the
facts must set out the premises for the relief
sought i.e. they must
be such that the relief prayed flows from them and can be properly
granted. [
Prinsloo v Woolbrokers Federation Ltd
1955 [2]
SA 298 N at 299E]
The observation in
Trope
and others v South African Reserve Bank
1993 [3] SA 264 A at 273A
applies:
“
It
is not sufficient, therefore, to plead a conclusion of law without
pleading the material facts giving rise to it”
17.
It
should not be overlooked that more than one claim in the same
particulars of claim of necessity implies that the plaintiff is
relying on more than one cause of action. The material facts in
respect of each cause of action should be pleaded separately and
in
such a manner that would enable the other party to reply thereto.
This requirement means that each claim should pass the
test of
disclosing a cause of action. If material facts common to more
than one claim are pleaded, such facts should be repeated
in respect
of each claim or be incorporated by express reference. It is
not permissible to rely on facts pleaded in one claim
to support
another claim without an express reference thereto. Such a
approach would force the other party or the court
to sort them judiciously
and fit them together in an attempt to determine the real basis of
the claim”
Roberts
Construction Co Ltd v Dominion Earthworks [Pty] Ltd
1968
[3] SA 255 at 263A]
18.
By
the same token the demands of lucidity and clarity would not permit
references to or reliance on documents or pleadings in other
proceedings that are not attached to the pleading, even if such
documents and their contents are within the knowledge of the other
party. The pleadings also serve to inform the court of the issues.
THE PLAINTIFF’S
CLAIMS
19.
I
now proceed to assess the particulars of claim in this matter having
regard to the requirements set out above. The plaintiff in
the action
has instituted four claims against five defendants although relief is
only sought against the first and second defendants.
In
the
first claim
the plaintiff seeks an order rescinding and setting aside an earlier
judgment and order of this court.
The
second claim
is for a declaration of rights,
the
third claim
is for an order directing the first and second defendants to report
and account in regard to two projects and to submit to a debate
of
the reports and accounts and
the
fourth claim
is for the payment by the first defendant to plaintiff of the sums of
R3 million, R662 500.00 and R23 625 000.00 million respectively
together with relief in the alternative.
The particulars of claim
contain 87 paragraphs, some of which having sub-paragraphs,
comprising a total of 22 typed pages.
The defendants raised a
total of 27 grounds of exception against the plaintiff’s
particulars of claim, which they say renders
it vague and
embarrassing to the extent that the entire particulars should be
struck out. Twenty five of these objections
were persisted
with. The grounds of exception are not necessarily dealt with in the
sequence in which they were raised because
some can conveniently be
considered together.
The grounds of exception
are to be considered having regard to what has been stated in
Alphedie Investments [Pty] Ltd v Greentops [Pty] Ltd
[supra]
at 161H – 162A
“
The
Court is inclined to look benevolently at pleadings, especially in
the magistrate's court, so that substantial justice need
not yield to
technicalities.
Such a view was
expressed, inter alia, in Odendaal v Van Oudtshoorn,
1968 (3) SA 433
(T) at p. 436D. Nevertheless, the issues as defined by the pleadings
must not be lost sight of and a party cannot rely on causes
of action
or on defences which were not put in issue and were consequently not
fully investigated.”
20.
In
Spearhead
Property Holdings Ltd v E&D Motors [Pty] Ltd
2010 [2] SA SCA at 15H-16A it was after all stated that
“…
it
is equally trite that since pleadings are made for the court and not
the court for the pleadings, it is the duty of the court
to determine
the real issues between the parties, and provided no possible
prejudice can be caused to either, to decide the case
on those real
issues.”
THE OBJECTIONS AGAINST
CLAIM 1
21.
Claim
1 has its origin in a provisional sentence action which the first
defendant instituted during January 2009 against the plaintiff
for
payment of R110 000.00 arising from an alleged acknowledgment of debt
which was signed by one Shivuri.
The plaintiff defended
the action and filed an answering affidavit setting out its alleged
defence and therein giving notice of
his intention to institute
counterclaims against the first defendant. The plaintiff
elected to include a summary of the allegations
that were contained
in the answering affidavit in the particulars of claim
It furthermore appears
that the first defendant initially sought to withdraw the action by
notice but was ordered by the court to
do so by way of substantive
application. The first defendant thereafter launched a
substantive application for leave to withdraw
the action. The
plaintiff in his particulars of claim sets out in great detail the
exchange of affidavits and notices that
followed this application for
leave to withdraw as well as the events surrounding its set down and
the hearing of this application.
When the application was
called counsel for the plaintiff was absent and an order was made in
the plaintiff’s absence granting
the first defendant leave to
withdraw the action, directing the first defendant to pay the wasted
costs occasioned by the withdrawal
whilst ordering the plaintiff to
pay the costs of opposition to the application.
It is this order which
the plaintiff now seeks to have rescinded by way of claim 1.
Under the common law a
recission of a judgment or order granted by default is within the
discretion of the court on sufficient or
good cause shown and
influenced by considerations of justice and fairness. [See
De Wet
and others v Western Bank Ltd
1979 [2] SA 1031 A at 1042F–1043A;
Harris v ABSA Bank Ltd t/a Vokskas
2006 [4] SA 527 at 529A-
F]. Sufficient cause for the purposes of recission have two
requirements to it, namely that an applicant
or claimant is required
on the one hand to show a reasonable and acceptable reason for the
default and on the other a
bona fide
defence which
prima
facie
carries some prospects of success. [
Chetty v Law
Society, Transvaal
1985 [2] SA 756 A at 765 A – D]
Issues such as
reasonableness, acceptability,
bona fides
and considerations
of justice and fairness are best dealt with in affidavits and our
courts have little difficulty in deciding applications
for recissions
in terms of Rule 42 on application. This is so because only
limited scope for factual disputes exist.
A litigant who elects to
proceed by way of action to have an order rescinded would do so at
his peril since the temptation to include
facta probantia
in
the particulars of claim will almost be irresistible. The allegations
that need to be made to have a judgment or order rescinded
do not fit
comfortably within the strict requirements of Rule 18[4]. This is
apparent from the formulation and structure of the
plaintiff’s
claim 1. It is structured to read like a founding affidavit and
contains 46 paragraphs with a multitude
of subparagraphs.
In their
second ground
of exception
the defendants contend that the recission of the
judgment should have been sought by way of application rather than an
action.
In argument Mr. Van der Linde SC on behalf of the defendants
indicated that he was not going to argue this ground with great
vigour
because a party should in principle be entitled to seek a
recission by way of an action especially if wide ranging factual
disputes
are anticipated. Mr Van der Linde’s concession
is fair and correct and it follows that this ground of objection
should
not be upheld. The other objections against claim 1, dealt
with hereunder, however clearly illustrate the dangers of proceeding
by way of action to have a judgment rescinded.
In addition to the
abovementioned ground of exception, the defendants have raised seven
other grounds of exception in regard to
the way in which claim 1 was
pleaded, on the one hand contending that claim 1 lacks the necessary
allegations to sustain a cause
of action, [the first group of
grounds] whilst on the other hand complaining that the particulars
abound with
facta probantia
, unsubstantiated legal
conclusions, etc.
to the extent that it renders the claim and
pleadings vague and embarrassing [the second group of grounds].
In the first group of
grounds the defendants contend that the plaintiff has failed to make
the necessary allegations to sustain
a claim for recission by having
failed to allege reasons for the delay in the bringing of the claim
or seeking condonation for
the delay [the
first ground of
exception
], having failed to allege a reasonable explanation for
the default [the
seventh ground of exception
] and having
failed to allege a
bona fide
defence or claim [the
eight
ground of exception
].
The requirement that an
application for recission under the common law should be brought
within a reasonable time, is a condition
precedent to any recission
and therefore one of the
facta probanda
that has to be
pleaded. [
Firestone South Africa [Pty] Ltd v Genticuro A.G.
1977 [4] SA 295 A at 306H]
In this instance more
than 5 months had lapsed from when plaintiff became aware of the
judgment and the instituting of the claim.
It is contended that
the plaintiff should have, but failed to make any allegations
relating to the delay and in particular he did
not allege that the
action was instituted within a reasonable time. In this regard the
defendants submitted that a 5 month delay
is
prima facie
unreasonable and that grounds for condonation should have been
incorporated into the particulars of claim. It is not opportune on
exception to decide whether the claim for recession was launched
within a reasonable time. If the plaintiff however contends
that the recission is sought within a reasonable time he should have
made such an averment. If at the trial it is found that a
5 month
delay was unreasonable, the plaintiff would be precluded on leading
any evidence regarding the delay as it would be bound
to his
pleadings. The
first ground of exception
is upheld in view of
the absence of any allegation as to the period of time between the
judgment and the launching of the action.
As
to the requirement of showing a reasonable and acceptable reason for
the default the plaintiff alleges that he “…
has
a reasonable and acceptable explanation for his default in that
:..”
and then provides five reasons for this statement.
Whether
a claimant has shown reasonable and acceptable reasons for his
default is a decision best left to the trial court and should
not be
decided on exception. The
seventh
ground of exception
therefore fails.
The plaintiff alleges
that he “…
has a bona fide defence with, at least,
some prospects of success
…” and purports to provide
the grounds for such a “defence”. Whether any
“defence” was
disclosed is not a discretionary decision
and can be decided on exception. The use of the term “defence”
in the
context of the judgment that plaintiff seeks to have rescinded
is a misnomer. The question properly formulated, is whether
the
plaintiff has disclosed a “
bona fide
” reason to
have the judgment rescinded and the provisional sentence action
reinstated.
In terms of Rule 41[1] a
litigant is entitled withdraw an action without the consent of the
other party at any time before the matter
has been set down.
The consent of the other party is only needed if it has already been
set down. The point of departure
is that a party, who does not
wish to, should not be compelled to continue with an action and he
should be entitled to withdraw
such action provided that an
appropriate tender for wasted costs is made. [
Levy v Levy
1991 [3] SA 614 A at 620B] The plaintiff contends that the first
defendant should not be permitted to withdraw for a number of reasons
which are not particularly lucidly articulated.
The first reason
contended for by the plaintiff is that he is entitled and should be
permitted to institute and prosecute his counterclaims.
There
is no substance to this reason since Mr Pienaar, acting for the
respondent, during the course of his argument informed the
court that
the second to fourth claims in this action are the counterclaims that
were envisaged in the answering affidavit to the
provisional sentence
summons.
The second reason
advanced by the plaintiff is obscure and consists of a series of
legal conclusions lacking factual averments.
It fails the test
of lucidity, logic, clarity and precision. The reason ostensibly
relates back to the first defendant’s
instituting of the
provisional sentence action and an abandoned effort to amend the
provisional sentence summons by replacing the
acknowledgement of debt
by Shivuri with an acknowledgement of debt signed by the plaintiff.
The plaintiff now argues that
the withdrawal of the action has the
effect of allowing the first defendant to avoid the consequences of
an admission and/or misrepresentation
made and/or a breach of
fiduciary duty.
The allegation that
withdrawal of the action would allow the first defendant to escape
the consequences of the alleged attempted
withdrawal of an admission
or a misrepresentation or breach of his fiduciary duties is
manifestly incorrect. The withdrawal of
an action can never erase the
conduct complained of.
The conduct of the first
defendant in the withdrawn action in any event seemingly forms the
factual basis for the allegation that
first defendant breached the
ASEF Code of Governance as set out in claim 3. The plaintiff
clearly intends to canvass the
conduct of first defendant as it
manifested itself in the provisional sentence action in this action.
He does not need the reinstatement
of the provisional sentence action
to do so, provided that the conduct is relevant to the issues in this
action. This second
reason can therefore also not serve as an
acceptable ground to compel a party to continue with proceedings
which it has no intention
of doing.
The plaintiff thirdly
contends that he was wronged by the costs order and that the matter
should be reopened to allow him to revisit
the cost order. The
cost order that was made has nothing to do with any
bona fide
reasons for the provisional summons action to be reinstated and
should similarly be disregarded.
It therefore follows that
the
eight ground of exception
should be upheld.
It is not surprising that
in the second group of grounds of exception, [i.e. the
third,
fourth, fifth
and particularly the
sixth grounds of the
exception
] the defendants complain that a substantial portion of
the allegations in regard to claim 1 were irrelevant and constitute
facta probantia
, legal conclusions or unsubstantiated
opinions. Defendants contend that the averments under claim 1
do not meet the requirement
of Rule 18[4] that only material facts be
pleaded. Mr Van Der Linde correctly identified at least 31 paragraphs
and subparagraphs
that clearly contain
facta probantia
which
should not have found their way into the pleadings. The plaintiff for
instance in fifteen subparagraphs provide a summary
of his
allegations in the answering affidavit to the provisional summons.
Detailed accounts are given of exchanges of affidavits
and notices
that are wholly irrelevant to the claim for recission.
A consideration of the
averments in regard to claim 1 shows that not only
facta probantia
are pleaded but also conclusions of law bereft of any material facts
giving rise to the conclusions as well as allegations that
are wholly
irrelevant to claim 1. I have gained the distinct impression that
most of the allegations in respect of claim 1 were
made with the
intention of relying on them as the
facta probanda
for the
other claims. The plaintiff however did not seek to incorporate
any of these allegations as allegations that should
read as
allegations in the other claims. This failure renders these
allegations of no value in respect of the other claims.
All the
grounds of exception in this second group are therefore all upheld.
THE OBJECTIONS AGAINST
CLAIM 2
22.
In
terms of claim 2 the plaintiff bases his entire claim on the
following averments:
“
A
real and material dispute has arisen in the circumstances between the
Plaintiff and the First Defendant regarding the issue whether
and to
what extent the Plaintiff is indebted in regard to the loan to
Shivuri and the terms of repayment of any debt found to be
due.”
23.
On
the basis of these averments alone the plaintiff then seeks a
declaratory order in the following terms:
a)
The
agreement among the Parties, interpreted in its context and with
reference to its purpose, is that Shivuri and not the plaintiff
is
liable for the loan;
Any amount found to be
owing to the First Defendant by him is subordinated in terms of the
ASEF Code of Governance; and
The First Defendant has
breached this Code; and
The Plaintiff is excused
from payment in the circumstances; and
The Plaintiff’s
liability, alternatively, is liable to be stayed pending compliance
by the first Defendant with his obligations
to the Plaintiff.”
24.
The
defendants raise three grounds of exception in respect of claim 2. In
terms of the
tenth
ground of exception
the complaint is that the plaintiff has failed to make the necessary
allegations entitling him to the declaratory orders sought.
The judgment in
Family
Benefit Society v Commissioner for Inland Revenue and another
1995 [4] SA 120 T at 124G - 126E summarises the applicable principles
when declaratory relief is sought:
“
1.
The applicant must be an 'interested person' (Afrikaans:
'belanghebbende daartoe'); not in vacuo, but interested in the
right
or obligation enquired into…. A mere financial or commercial
interest is not enough. A direct interest is required.
P E Bosman
Transport Works Committee and Others v Piet Bosman Transport (Pty)
Ltd
1980 (4) SA 801
(T) at 804B-F.
2. There must be a right
or obligation which becomes the object of enquiry. It may be
existing, future or contingent but it must
be more tangible than the
mere hope of a right or mere anxiety about a possible obligation….
3. …
4. … a party is
not entitled to approach the Court for what amounts to a legal
opinion upon an abstract or academic matter.
The
Court will not make a declaration of rights unless there are
interested persons upon whom the declaration would be binding.”
25.
The
“circumstances” giving rise to the alleged dispute are
not pleaded at all. No factual basis for the other declaratory
relief
was alleged and as has already been remarked, the plaintiff in any
event failed to incorporate any of the allegations that
were made in
respect of claim 1 as allegations in respect of claim 2.
The
ninth and tenth
grounds of exception
, both of which complain about the lack of
the necessary allegations, should therefore be upheld.
The defendants premised
the
eleventh ground
on assumption that the declaratory relief
sought in claim 2 could be issues in the provisional sentence action
and that claim 2
should therefore have been couched in the
alternative to claim 1. Whilst the complaint would have been
valid if the assumption
was correct, the plaintiff failed to
establish such a link, rendering a consideration of this ground of
exception unnecessary.
THE OBJECTIONS AGAINST
CLAIM 3
26.
In
terms of claim 3 the plaintiff seeks:
a)
An
order directing the first and second defendants to render a report
and account to the Plaintiff and the Third Defendant in regard
to the
Powerville and Tweefontein joint venture projects;
An order directing the
first and second defendants to submit to a debate of the said reports
and accounts:… “
27.
The
necessary allegations to sustain a claim for the debatement of an
account were summarized as follows in the judgment in
Doyle
and another v Fleet Motors PE [Pty] Ltd
1971 [3] SA 760 A at 762 F- G:
“
The
plaintiff should aver -
(a) his right to receive
an account, and the basis of such right, whether by contract or by
fiduciary relationship or otherwise;
(b) any contractual terms
or circumstances having a bearing on the account sought;
(c) the defendant's
failure to render an account.”
28.
The
defendants raised 12 grounds of exception against claim 3, identified
as the twelfth to twenty third grounds of exception. Mr
Van der Linde
did not proceed with the
thirteenth
and fourteenth grounds
because both related to the contents of the Strategy Plan which did
not form part of the pleadings.
The plaintiff alleges
that he and first defendant were members and partners of ASEF and
that they agreed to conduct business together
in terms of AFSEF’s
Code of Governance and he relies for these averments on “…
version
16 of the Strategy Plan of ASEF Equity Alliance…
”
which was allegedly attached to the answering affidavit in the
provisional sentence action. The agreement is however
not
attached as an annexure to its particulars of claim and no cognizance
can be taken of the pleadings in the provisional sentence
action.
The
twelfth ground of exception
in which the defendants
complain of the failure to attach this agreement is therefore valid
and should be upheld.
Notwithstanding the
failure to attach the agreement relied on, the plaintiff then
proceeds to quote from the strategy plan and refers
to a summary of
the AFSEF Code of Governance which he states is attached as an
addendum to the “Powerville joint venture
agreement”
which he attached. Plaintiff also attached a copy of what is
referred to as the Tweefontein joint venture
agreement. These
two agreements and the addendum are alleged to be the source of first
defendant’s fiduciary duties
and obligations to account to
plaintiff“…
through and in conjunction with second
defendant
”.
In the
sixteenth
ground for exception
the defendants complain that the heading of
the addendum indicates it as an “Addendum to the Maxima
Projects [Pty] Ltd Agreement”
and not as an addendum to the
Powerville joint venture agreement. Whilst this is correct, the
first unnumbered paragraph
thereof states that the addendum forms an
integral part of the Powerville agreement. Based on a benevolent
reading of the pleadings
this exception should not be upheld.
The
fifteenth,
sixteenth, seventeenth, eighteenth and nineteenth grounds of
exceptions
are concerned with the fact that the first or
the second defendants are on the face of the two joint venture
agreements not
parties to either of the two agreements and that no
factual averments are made which would impose any fiduciary duties on
the first
and second defendants. These objections are also well
founded and these grounds should therefore be upheld.
In claim 3 the plaintiff
also extensively pleads how the projected profits for the two joint
ventures were to be calculated, which
the plaintiff hen alleges
amount to R662 500.00 and R23 625 000.00 respectively. No
relief is however claimed in respect
of these averments in claim 3
and these allegations are unnecessary to sustain a claim for
statement and debatement. The
twentieth and twenty first
grounds of exception
complaining of the irrelevance of these
allegations are therefore well founded and should be upheld.
The plaintiff furthermore
alleges that the first defendant breached the AFSEF Code of
Governance and lists five instances of such
breach. The
twenty
second ground of exception
is directed against these allegations
and is based on the failure by the plaintiff to make the necessary
factual allegations to
substantiate the allegations of fraud and
false claims. The plaintiff on the face of it does make such factual
allegations but
fails to claim any relief consequent thereon.
These allegations are similarly irrelevant and the ground of
exception is upheld.
THE OBJECTIONS AGAINST
CLAIM 4
29.
In
claim 4 the plaintiff claims payment of R3 million which is the
alleged value of his loan account in ASEF, R 662 500.00 being
the
alleged value of his “right, title and interest” in the
Powerville joint venture as well R23 625 000.00 being the
alleged
value of his “right, title and interest” in the
Tweefontein joint venture.
No allegations are made
which could conceivably render any defendant liable to repay the
plaintiff’s loan account.
The claims for the
alleged values of his “right, title and interest” in the
two joint ventures are claimed as minimums
subject thereto that these
claims may increase after the debatement claimed in terms of claim
3. In the alternative to these
two amounts the plaintiff seeks
an order in the alternative that first defendant renders security for
the payment of these amounts.
The
twenty fourth,
twenty fifth and twenty sixth grounds of exception
are all
directed at the respondent’s failure to allege the facts giving
rise to the various claims, such as the first defendants
alleged
obligation to manage the two joint ventures, the alleged breach of
the ASEF Code of Governance and the factual basis for
respondent’s
right to be paid the value of his “right, title and interest”
in the two joint ventures. The plaintiff
cannot rely on the
allegations relating to the calculation of the amounts and the
allegations of breach that were made in respect
of claim 3 since
there was no effort incorporate these allegations in the framing of
claim 4. These three grounds of exception
are therefore valid and
should be upheld.
In the
twenty seventh
ground of exception
the defendants state that a claim for payment
of money cannot be reconciled with an earlier claim for debatement
and that the respondent’s
claim 4 should have been couched as
an alternative to claim 3. This ground of exception should be
considered in conjunction
with the
twenty third ground of
exception
in which the defendants contend that in respect of
claim 3 no provision was made for a prayer for payment of any amounts
which
may become due pursuant to a statement and debatement. If the
particulars of claim and claims 3 and 4 are to be interpreted
benevolently
it could conceivably be regarded as curing this
complaint except that there is no claim for the adjustment of the
three amounts
claimed in claim 4 consequent upon a statement and
debatement. Both these grounds of exception therefore also fall
to be
upheld.
CONCLUSION
30.
The
grounds of exception dealt with above, do not fully convey the
failings of the plaintiff’s particulars of claim.
The
particulars of claim consist of an unstructured and almost incoherent
series of allegations, inferences and legal conclusions
which
completely disregard the imperatives of conciseness, lucidity, logic,
clarity or precision. It contains a rambling
procession of
paragraphs which disregards virtually every one of the requirements
for pleadings that have been set out above.
The combined result of
all the grounds of exception that were upheld is that the particulars
of claim are rendered hopelessly vague
and embarrassing. No
degree of benevolent reading thereof can save it. It is not the
function of a court to either prune
the particular of claims to rid
it of
facta probantia
and unsubstantiated legal conclusions,
to reconstruct the pleading by incorporating allegations made in
respect of one claim into
another or to search for allegations which
could conceivably be used to support the claims which lack the
necessary averments.
The defendants will
undoubtedly be seriously prejudiced if compelled to plead to these
particulars of claim and it follows that
the particulars of claim
should be struck out in its entirety.
The defendants have
sought a special punitive costs order to be paid
de bonis
propriis
. Having regard to the particulars of claim and the
disregard it displays for the provisions of the Rules and the basic
requirements
for pleadings a punitive costs order is justified.
Whilst the plaintiff’s attorney signed the particulars of claim
by virtue
of section 4 of Act 62 of 1995 it is not apparent that he
was the actual draughtsman thereof. It may therefore be unfair
to order him to personally pay the costs of the exception.
I accordingly make the
following order:
1.
The
exception is upheld;
The particulars of claim
are struck out;
The plaintiff is given
leave to amend the particulars of claim by notice of amendment within
15 days of the date of this order;
The plaintiff is ordered
to pay the costs of the exception on the High Court scale as between
attorney and client, including the
costs of two counsel.
REYNEKE AJ
4
November 2010