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[2020] ZAGPJHC 438
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Cobb v Barloworld South Africa (Pty) Ltd (33048/2019) [2020] ZAGPJHC 438 (21 August 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 33048/2019
REPORTABLE:
YES
/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
REVISED:
YES/NO
In
the matter between:
ANDREW
MICHAEL
COBB
PLAINTIFF
And
BARLOWORLD
SOUTH AFRICA (PTY) LTD
DEFENDANT
JUDGMENT:
EXCEPTION
VUKEYA
AJ
INTRODUCTION
AND BACKGROUND
[1]
The defendant notes an exception
to the plaintiff’s particulars of claim and alleges
that they
are vague and embarrassing or that they lack the necessary averments
to sustain a cause of action. The plaintiff defended
its particulars
of claim and opposed the exception.
[2]
In a nutshell, the plaintiff
entered into a Contract of Employment with the defendant on
or about
24 September 2014 in which it was agreed that he would be employed by
the defendant in Botswana as a Groups Parts Manager
for thirty six
(36) months starting from 01 November 2014 up to and including 31
October 2017.
[3]
According to the plaintiff one
of the terms of the contract was that he was entitled to
join the
Barloworld Medical Aid Scheme in South Africa and that monthly
contributions to the scheme would be borne equally between
the
plaintiff and the defendant.
[4]
When the Plaintiff became
permanently disabled on 30 September 2015 he was placed on medical
retirement and he alleges that it was subject to the rules of the
fund and that he received a gross salary of P56 307.00 and
a car
allowance of P17 476.00 per month from the defendant.
The
particulars of claim
[5]
In his particulars of claim the
plaintiff avers that as an employee of the defendant he
became a
member of the defendant’s Disability Benefit Fund of which the
insurer is Momentum. It is also his version that
he and the defendant
contributed to such a fund and therefore they are bound by its rules.
[6]
The terms of the fund as pleaded
by the plaintiff in his particulars of claim are as follows:
6.1
.The defendant is to pay the
plaintiff his remuneration in full for six consecutive months
following the date of his disablement;
6.2
. Over the next 24 months, following
the six months period referred to above the defendant is to make
payments to the plaintiff
of a disability benefit equal to 90% of the
plaintiff’s remuneration;
6.3
. After the 24 months referred to
above and until termination of the defendant’s obligations
under the rules of the fund,
the defendant is to make payment to the
plaintiff of a disability benefit equal to 75% of the plaintiff’s
remuneration;
6.4
. Both the plaintiff and the
defendant have to continue contributing towards the fund whilst the
plaintiff endures his disablement.
[7]
The plaintiff’s version is
that the defendant made the payments as listed in Column
“I”
of Annexure “B” of his particulars of claim instead of
making payments as listed in Column “H”
of the same
annexure. He therefore demands from the defendant a total amount of
R899 112.98 plus interests which according
to the plaintiff, the
defendant refuses to pay.
Grounds
of exception
[8]
The defendant noted the
following two grounds of exception to the plaintiff’s
particulars
of claim on the basis that the particulars of claim are
vague and embarrassing or that they lack the necessary averments to
sustain
a cause of action:
[8.1] although
the claim is directed to Momentum, the plaintiff has sued the
defendant without joining Momentum (non-joinder).
The
bases of the defendant’s exception is that the plaintiff, in
his particulars of claim, pleads that as an employee of the
defendant
he became a member of the defendant’s disability benefit fund
of which the insurer is Momentum and that the defendant
failed to pay
him in accordance with the terms or the rules of the fund. Even
though the plaintiff pleads that the defendant is
bound by the rules
of the fund and the payment terms in the event of a disability of a
member of a fund, the plaintiff has failed
to cite the owner of the
fund, namely, Momentum as a party to the proceedings.
The defendant argues that Momentum has
a direct and substantial interest in the subject matter of the action
and may be affected
tremendously by the judgment of the court, if
granted; and therefore submits that the plaintiff ought to have
joined Momentum as
the second defendant in the proceedings but failed
to do so.
[8.2] Although
the plaintiff makes reference to a policy with Momentum (which he
refers to as the fund), no such policy or schedule
has been attached
to the particulars of claim as required in terms of Rule 18(6) of the
Uniform Rules of Court.
The defendant’s
second ground of exception is based on the fact that the plaintiff
references in his particulars of claim
“Momentum’s
Disability Benefit Policy” and further submits that he has
complied with all obligations in terms
of the policy but fails to
annex the policy referenced in the particulars of claim to enable the
defendant to consider it and plead
to it.
[9]
The plaintiff’s defence to
the first ground of exception is that the defendant, as
the member of
the fund, carries the obligation of making the payment to the
plaintiff in the event of the plaintiff’s disablement
and that
the payments received by the plaintiff soon after his disablement
were made by the defendant. Furthermore, according to
the plaintiff,
the insurer (Momentum) has no obligation towards the plaintiff and
that Momentum has no interest in the matter.
[10]
Regarding the second ground of exception the
plaintiff states that the specific terms upon which the claim
is
founded were pleaded in detail and that it was indicated to the
defendant that the plaintiff was not in possession of the document.
To the best of his knowledge the original or the copy of the document
was in the possession of the defendant.
Principles
relating to pleadings and exceptions
[11]
As a starting point, a consideration of what is
required of pleadings is necessary when dealing with exceptions.
Rule
18 (4) requires that each pleading in an action…
“
shall
contain a clear and concise statement of the material facts upon
which the pleader relies for his claim, defence or answer
to any
pleading, as the case may be, with sufficient particularity to enable
the opposite party to reply thereto”
[12] The above rule
refers to two important aspects of pleadings and requires that the
pleading should contain:
(a) A clear
and concise statement;
(b) Material
facts upon which the pleader relies for his claim and that such facts
must contain sufficient
particularity to enable the opposite party to
reply thereto. This requirement relates to the core and substance of
a pleading.
It does not necessarily mean that the pleader must
disclose every piece of evidence necessary to prove such fact but
every material
fact which is necessary to be proved. Facts which only
serve to establish the cause of action are regarded as material facts
and
such facts should be related with sufficient particularity and
clarity.
[13]
In
Trope v SA Reserve Bank
1992 (3) SA
208
(T)
at 210G – 211H, McCreath J emphasized the
significance and requirements of rule 18 (4) by commenting as
follows:
“
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”
[14]
Where a party notes an exception to the pleadings,
it is important to be mindful of the general principles
relating to
exceptions on the basis that a pleading is vague and embarrassing. A
summary of these principles appears in
Erasmus,
Superior
Court Practice
at B1 154 to B1 154A as follows:
(a) In each
case the court is obliged first of all to consider whether the
pleading does lack particularity
to an extent amounting to vagueness.
Where a statement is vague it is either meaningless or capable of
more than one meaning.
(b)
If there is vagueness in this sense the
court is then obliged to undertake a quantitative analysis of such
embarrassment as the
excipient can show is caused to him or her by
the vagueness complained of.
(c)
In each case an
ad
hoc
ruling must be made as to whether
the embarrassment is so serious as to cause prejudice to the
excipient if he or she is compelled
to plead to the pleading in the
form to which he or she objects. A point may be of the utmost
importance in one case, and the omission
thereof may give rise to
vagueness and embarrassment, but the same point may in another case
be only a minor detail.
(d)
The ultimate test as to whether or not the
exception should be upheld is whether the excipient is prejudiced.
(e)
The onus is on the excipient to show both
vagueness amounting to embarrassment and embarrassment amounting to
prejudice.
(f)
The excipient must make out his or her case
for embarrassment by reference to the pleadings alone.
(g) An
exception must relate to the whole of the cause of action or claim
and not to a particular paragraph
in the cause of action.
[15]
What can be deducted from the above principles
regarding exceptions is that an excipient must clearly and
concisely
state the grounds upon which he takes the exception. It therefore
follows that in order to succeed, an 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, failing this,
the exception ought not to be upheld.
Submissions
and the analysis
[16]
The defendant’s submissions are that
although the plaintiff pleads that upon becoming an employee
of the
defendant he became a member of the defendant’s disability
benefit fund; he does not make reference to any specific
clause in
the contract of employment which entitles him to the benefit claimed.
He however, refers to clause 10 of the contract
of employment which
only entitles him to join the Barloworld Medical Aid scheme in SA.
According to the defendant, a medical aid
scheme relates to medical
aid insurance and not to disability insurance.
[17]
In emphasizing the test for deciding whether
particulars of claim were vague and embarrassing because of
lack of
particularity, Adv Nadeem Alli, for the defendant, referred the court
to the case of
Lockhart v Minister of Interior
1960 (3) SA
765
(D)
at 777;
Leathern v Tredoux
(1911) 32 NLR 346
at 348 and
Quinlan v MacGregor
1960 (4) SA 383
(D)
at
393G. From the above cases the test can be summarised as follows:
17.1. The court is obliged to consider
whether the pleading indeed lacks particularity to an extent that it
can be said to be vague
or capable of more than one meaning;
17.2. The court must also make a
ruling as to whether the embarrassment is so serious as to cause
prejudice to the excipient if
compelled to plead to the pleading in
the form to which he objects.
17.3.
It should be determined whether the
excipient will be prejudiced if the exception is not upheld.
[18]
Counsel for the defendant therefore argues that by
failing to join Momentum to the proceedings, while the
plaintiff
relied on certain terms of the fund (Momentum Disability fund); it
renders the plaintiff’s particulars of claim
insufficient to
sustain a cause of action because it is bald, sketchy and incapable
of enabling the excipient, with sufficient
information, to establish
the case it has to meet. The annexure relied upon as Annexure “A”
does not support the allegations
made regarding the excipient’s
liability to the plaintiff and is therefore vague and embarrassing to
the extent that it is
deficient for want of the necessary allegations
to sustain a cause of action against the excipient.
[19]
In answer, Adv Jan Lubbe for the plaintiff submits
that the plaintiff does not rely on the employment contract
for his
claim but alleges that by virtue of him being the employee of the
defendant he is entitled to claim the disability fund.
Furthermore,
Counsel for the plaintiff argues that the payments received by the
plaintiff post his disablement were made by the
defendant, not by
Momentum and that the short payments equate to a breach by the
defendant of its obligations. He argued that the
situation would have
been different had the defendant not made such payments after the
disablement of the plaintiff.
[20]
Adv Lubbe submitted further that should the
exception be dismissed there will be no prejudice on the defendant
because he may still file a special plea or deny any liability for
the payment of the plaintiff’s disability remuneration.
Regarding the second ground of exception Adv Lubbe submits that the
defendant should have acted in accordance with Rule 30 upon
realisation that the plaintiff has failed to annex a copy of the
contract or document upon which his claim is based, but the defendant
failed to do so. According to Counsel for the plaintiff, the
plaintiff incorporated the terms of the contract in paragraph 11 of
its particulars of claim and therefore there is no merit on the
second ground of exception and it stands to be dismissed. He however
conceded that the plaintiff should have included in his particulars
why he could not attach the contract.
[21]
It is common cause that the plaintiff was an
employee of the defendant and that he contributed to the Medical
Aid
Scheme of the defendant. Clause 10 of the contract of employment
states that “the employee is able to join the Barloworld
Medical Aid scheme in SA. The contribution to the medical aid is
borne equally by the employer and employee”. It can be noted
from this particular clause in the contract that reference is only
made to a medical aid scheme and not a disability fund.
[22]
The plaintiff’s ground of defence to the
first exception is that he does not rely on the contract
of
employment with the defendant to claim from the disability fund but
alleges that as an employee of the defendant he became a
member of
the defendant’s disability benefit fund and that entitles him
to the benefits in terms of the “fund”.
This is vague.
When one looks at the particulars of claim of the plaintiff, it is
easy to come to the conclusion that he relies,
amongst others, on his
contract of employment for his claim. Although the plaintiff made
submissions to indicate that he does not
rely on his contract of
employment for the claim, my understanding is that he alleges that
“by virtue of his employment by
the defendant he is entitled to
claim from the fund”. The cause of action does not appear
clearly from the factual allegations
made by the plaintiff. What
binds the plaintiff to the defendant is the contract of employment;
it is the link between the two.
The contract of employment is clear
about the medical aid scheme and silent on any disability benefits
that the plaintiff is entitled
to claim from.
[23]
In my view the plaintiff’s particulars of
claim lack particularity to an extent that they amount to
vagueness.
It is not clear from the contents of the pleadings whether the
plaintiff intends to sue the defendant or Momentum considering
that
he also alleges that he was making a contribution towards the
Disability Benefit fund held by Momentum.
[24]
In his particulars of claim in Paragraph 12 the
plaintiff states that: “
the
plaintiff has complied with all his obligations in terms of the
Employment Contract as well as the Momentum’s Disability
Benefit Policy”
, this statement
is indicative of the fact that the plaintiff does in a way rely on
the Employment Contract to claim from the fund.
Even if the intention
is to claim from the defendant alone as it seems to be the case in
this matter, Momentum has an interest
in the matter as they are the
institution allegedly holding the funds on behalf of the defendant
and the plaintiff who were allegedly
making contributions. I
therefore find that the non-joinder of Momentum and the lack of
particularity in the particulars of claim
of the plaintiff create a
vagueness which is prejudicial to the defendant. In my view, the
defendant has succeeded to prove that
upon
every
interpretation which the pleading in question can reasonably bear, no
cause of
action is disclosed.
[25]
This brings me to the second ground of exception,
namely, that the contract or document containing the particular
terms
pleaded by the plaintiff in his particulars of claim was not attached
as provided by Rule 18 (6). The provisions of Rule
18 (6) are that “
a
party who in his pleading relies upon a contract shall state whether
the contract is written or oral and when, where and by whom
it was
concluded, and if the contract is written a true copy thereof or of
the part relied on in the pleading shall be annexed
to the pleading”
.
The plaintiff referred the court to the terms of the alleged contract
existing between him the defendant and/or Momentum without
attaching
a true copy of the alleged contract or a copy of the relevant
Paragraph 11. If the plaintiff places reliance on such
a document, he
has a duty to attach it in terms of Rule 18 (6), and alternatively,
in the absence of any such document; the plaintiff
must state why
such a document could not be filed. The plaintiff had to wait for the
defendant to take exception before explaining
that he was not in
possession of such a document and that to the best of his knowledge
it is in the defendant’s possession.
[26]
When a party relies on a contract to prove its
claim, that contract becomes a link in the chain of his cause
of
action, and in the absence of that link there is no connection
between the two. The plaintiff has submitted that he does not
rely on
the contract of employment for his claim, it can therefore be
deducted that the document upon which the plaintiff’s
claim is
based is that which contains the terms of the fund as referred to in
Par 11 of the plaintiff’s particulars of claim.
In my view
failure to attach a true copy of the contract upon which the claim is
based creates a disconnection between the claim
and the cause of
action and renders the particulars of claim to lack the necessary
averment to sustain the claim. If the plaintiff’s
claim is
based on the terms as pleaded in the particulars of claim, the
document containing such claim is the best way to prove
the content
of the evidence and the plaintiff should have at least attached a
copy of such a document.
[27]
I am of the view that the particulars of claim
fail to disclose a cause of action for the relief claimed
and
therefore compelling the defendant to plead thereto will prejudice
him in his defence.
[28] In the
premise, I make the following order:
1.
The first and second grounds of exception
are upheld, with costs.
2.
The particulars of claim are struck out
3.
The plaintiff is granted leave to amend its
particulars of claim within 21 days from date hereof.
VUKEYA
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION - JOHANNESBURG
Heard:
28 July
2020
Delivered:
21 August 2020
Appearances:
For
the Plaintiff: Adv J Lubbe
Attorney
for the plaintiff:
Louw
and Heyl Attorneys
389C
Ontdekkers
Florida
Park
Roodepoort
E-mail:
jaco@louwhel.co.za
Ref.
J van Staden/ae/MAT37760
For
the Defendant/Applicant: Adv N Alli
Attorney
for the defendant:
Poswa
Incorporated
Rivonia
Extension 12
Sandton,
2128
E-mail:
shaviv.singh@poswainc.co.zaa
Ref.
S Singh/gm/MAT23280