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[2010] ZAWCHC 214
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Lawson v Schmidhauser Electrical CC (7596/2007) [2010] ZAWCHC 214; [2011] 2 All SA 565 (WCC) (9 November 2010)
REPORTABLE
Republic
of South Africa
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
No: 7596/2007
In the
matter between:
PETER
LAWSON
Plaintiff
/ Respondent
and
SCHMIDHAUSER ELECTRICAL CC
Defendant / Applicant
JUDGMENT DELIVERED : 9 NOVEMBER 2010
CORAM : MOOSA, J
Application for separation of certain issues heard on:
1
November 2010
For Plaintiff / Respondent
: Adv Rob Patrick
Attorney(s)
: Webber Wentzel
For Defendant / Applicant
: Adv A Ferreira
Attorney(s)
: Glyn Marais Inc
Republic of South Africa
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE HIGH COURT, CAPE TOWN)
CASE
No: 7596/2007
In the matter between:
PETER LAWSON
….............................................................................
Plaintiff
/ Respondent
and
SCHMIDHAUSER ELECTRICAL CC
…...............................................
Defendant
/ Applicant
JUDGMENT DELIVERED : 9 NOVEMBER 2010
_____________________________________________________________________
MOOSA, J:
The Separation of Issues
The Applicant who is the Defendant in this matter, during the course
of the trial brought an application, in terms of Rule 33(4)
of the
Uniform Rules of Court, for the separation of certain issues. For
the sake of convenience I shall refer to the parties
as in the
action, namely, the Applicant as the Defendant and the Respondent as
the Plaintiff. In the Notice of Motion the Defendant
is seeking the
separation of the issues in the following terms:
(i) Whether Applicant was in breach of the labour Rates Agreement –
annexure “S2” (“the agreement”)
to
Applicant’s amended Plea.
(ii) If the answer to the issue in paragraph (i) is in the
affirmative then whether Respondent placed Applicant in
mora
.
(iii) If the answer to the issue in paragraph (ii) above is in the
affirmative then whether Respondent was entitled to cancel the
agreement.
(iv) That the other issues in dispute between the parties be
postponed
sine die
and the determination thereof be stayed
pending the finalisation of the separated issues.
The application is opposed by the Plaintiff.
The Law
Rule 33(4) envisages the convenient and expeditious disposal of
litigation in a fair and appropriate manner. When it comes to
the
question of convenience, not only must the interest of the court but
also that of the litigants must be taken into consideration
(
Braaf
v Fedgen Insurance Ltd
1995 (3) SA 938
(C) at 940C-D). In making
that determination the court must take into consideration the
advantages and disadvantages of ordering
the separation. If the
advantages of separation outweighs the disadvantages and moreover
will materially shorten the proceedings,
the court would normally
grant the application
(
Berman & Fialkov v Lumb
2003 (2) SA 674
(C) at para [17]. The court has a wide discretion to
order separation where convenience dictates such a course. The court
is
obliged to grant the application for separation unless it appears
to the court that the issues cannot conveniently be decided
separately
(
Braaf v Fedgen Insurance Ltd
(supra) at
939G. The Supreme Court of Appeal has cautioned against piece-meal
adjudication of a case and indicated that issues
on the face may
appear to be discrete but on closer scrutiny may found to be
inextricably interlinked (
CAN v MTN
2010 (3) SA 382
at 408H).
The Agreement
In accordance with the pleadings, the parties entered into two
written agreements in terms of which the Defendant agreed to provide
certain electrical installations to the Plaintiff at his premises in
Camps Bay. The first contract was based on a lump sum agreement.
This contract was subsequently superseded by a labour rate agreement
(“the agreement”). The Plaintiff’s claim
is based
on damages arising from the alleged breach of the agreement. The
Defendant denies such breach and pleads that it fulfilled
its
obligation up until the Plaintiff repudiated the agreement and
prevented it from completing the work
It is common cause that the agreement does not stipulate a date by
which the Defendant had to perform i.e.
mora ex rei
nor does
it contain a forfeiture clause or a
lex commissoria
. In the
absence of such provisions and in the event of a breach, the
Plaintiff was required to place the Defendant in
mora
prior
to cancelling the agreement by giving it reasonable notice to remedy
the default (
Breytenbach v Van Wyk
1923 AD 541
at 549).
The Breach
The Plaintiff in his pleadings sets out a series of breaches
allegedly committed by the Defendant in carrying out its obligations
in terms of the agreement. The breaches can be divided into three
broad categories: the first is that the Defendant “
required
the provision of and ordered components surplus to those required in
order to complete the work”;
the second is that the
Defendant “
invoiced the plaintiff for time in excess of
reasonably required by the defendant’s staff in order to have
performed or
perform the work”;
and the third is that the
Defendant
,” failed to perform all work in a professional,
alternatively workmanlike manner and using components that were free
of
detectable defects”.
According to the pleadings, it appears that the major portion and
extent of the breaches were attributable to poor workmanship.
The
Plaintiff alleged that the Defendant was unable and/or unwilling to
remedy the breaches of the agreement and on 12 February
2007,
alternatively on 23 February 2007, cancelled the agreement. The
Plaintiff’s claim for damages essentially arises
from remedial
work effected to rectify the alleged breaches.
The Defendant in this application alleges that in the evidence led
by the Plaintiff in the trial thus far, it emerged that the
“
ability
of the Plaintiff to prove his case essentially hinges upon one
succinct point of fact and law. That is whether or not
the Defendant
could have been in breached of the so-called Labour Rates Agreement,
annexure S2 (page A128 of the pleadings bundle)
to Applicant’s
amended plea”.
The Lex Commissoria
The Defendant states that the agreement contains no date for
performance and no
lex commissoria
and in the circumstances
the Plaintiff was required
ex personae
to place the Defendant
in
mora
. The Plaintiff has failed to do so and in the
circumstances the Plaintiff was not lawfully entitled to cancel the
agreement.
If this court finds in his favour on that issue, it will
be dispositive of the whole matter.
The evidence is that the Defendant requested further particulars as
to “
whether Defendant was provided with an opportunity to
remedy the alleged breaches as well as the manner in which such
opportunity
was given”.
The Plaintiff’s response
thereto was that “
this question was a matter for evidence”.
The matter was further raised by the Defendant’s attorneys
in a letter dated 23 October 2009 addressed to the Plaintiff’s
attorneys and the Plaintiff was call upon to provide proper
particulars in this regard but no such particulars were forthcoming.
The Evidence
The Plaintiff in his evidence confirmed that by 12 February 2007, he
had resigned himself to the fact that the Defendant was
neither able
nor willing to complete the work and had at that stage decided to
employ another electrician to complete the work.
The Plaintiff
further confirmed that a representative of the Defendant came to the
property to attend to the complaints but that
he was refused access
to the property by the Plaintiff. Gaunt who gave expert evidence for
the Plaintiff said that those issues
that were visibly evident on
12 February 2007 were relatively minor issues and most could
have been cleared up with an almost
superficial correction.
The Issues
The first issue that the court has to determine is whether the
agreement has been validly cancelled. If the court finds that
the
agreement has not been validly cancelled, the other issue in terms
of the agreement that remains to be decided is whether
the Plaintiff
had been overcharged for work that had been completed prior to the
operation of the agreement. That agreement provides
further that all
work performed by the Defendant in terms of the contract to date of
the agreement would be recalculated in accordance
with rates and/or
tariff set out in the agreement.
The Plaintiff in the Answering Affidavit for the first time raises
the issue that: “
The greatest portion of the my claim
arises from the defendant having invoiced me for time in excess to
that reasonably required
for the defendant’s staff to have
performed work that was (defectively) performed by the defendant”.
He states further the fact, whether or not he has lawfully
cancelled the contract in February 2007, has no bearing upon this
aspect
of the claim. The pleadings do not set out what times were
reasonable for work performed by the Defendant.
The Claim
In its claim the Plaintiff deducts all amounts paid to the Defendant
less the amounts allegedly due to the Defendant and adds
the costs
of remedial work, the cost of components damaged by the Defendant,
and the cost of surplus components ordered. In respect
of the
amounts allegedly due to the Defendant, the Plaintiff in paragraph
19 of his Particulars of claim states: “
The consideration
due to the defendant by the plaintiff in terms of the contract in
respect of the portion of the work completed
by the defendant in
terms of the contract was R176 082.50”.
It is not clear
whether this refers to work performed by the Defendant prior or
subsequent to coming into operation of the second
agreement or both.
The Question of Overcharging
The Plaintiff states further that in order to deal with the question
of the alleged overcharging, it will be necessary to lead
evidence
as to the work actually done by the Defendant, the defects in its
work, the remedial work required and what a reasonable
amount of
time was for the Defendant to have spent on such work. With regard
to the defects and the remedial work referred to,
the Plaintiff
states that it is not necessary to place the Defendant in
mora
but even if it was necessary, he in fact did so.
These issues have not been pleaded by the Plaintiff. What has been
pleaded is that the Defendant has overcharged in respect of
the work
done prior to operation of the agreement. In any case, if the
Plaintiff in his claim relies on the defects in the works
and the
remedial work done, the question once more arises was the Defendant
placed in
mora
and given an opportunity to remedy the defects
before the remedial work was undertaken by the Plaintiff. The
determination of
this issue may be dispositive of a substantial
portion of the claim arising from being overcharged.
The Disadvantages
However, the Plaintiff does not set out in his Particulars of Claim
the nature and extent of defects in the works and the remedial
work
to be done or already done. In addition thereto the particulars of
claim of the Plaintiff are vague, imprecise and lack
clarity. It may
be advantageous for all concerned that the Plaintiff be afforded an
opportunity to amend his pleading in order
to clearly and succinctly
identify the issues and the Defendant to be given an opportunity to
replicate thereto.
The Plaintiff submitted that he will be prejudiced by the separation
of the issues because in the first place the court has already
heard
the evidence of two witnesses; in the second place the evidence is
intertwined and it may be disadvantageous to separate
the issues; in
the third place separation will create a fragmented record and
disadvantage the court and the parties; and in
the fourth place, it
can also lead to the lengthening of the proceedings instead of
shortening the proceedings. I disagree.
The Advantages
I am of the view that a separation of the issues will be to the
advantage of both the parties as well as the court for the following
reasons: firstly, it will clearly and succinctly identify the
issues; secondly it will afford the parties an opportunity to amend
their pleadings to meet those issues and bring their case within the
ambit of the separated issues; thirdly, it is likely to
limit the
issues and the scope and extent of the evidence to be led on those
issues, if any; fourthly, those issues could be
decided on the basis
of a stated case in terms of Rule 33(1) of the Uniform Rules of
Court ; and fifthly, it can considerably
shorten the proceedings and
save time and costs;
The Convenience
Having regard to the advantages and disadvantages of separation, I
am of the view that the advantages far outweigh the disadvantages
and it will be convenient and in the interest of all parties
concerned to separate the issues in this matter. In
Denel Edms
Bpk
v Vorster
2004 (4) SA 481B-C
Nugent JA
,
says: “It is only after careful thought has been
given to the anticipated course of the litigation as a whole that it
will
be possible properly to determine whether it is convenient to
try and issue separately. But where the trial Court is satisfied
that it is proper to make such an order – and, in all cases,
it must be so satisfied before it does so – it is the
duty of
that Court to ensure that the issues to be tried are clearly
circumscribed in its order so as to avoid any confusion.”
(See
also
CNA v MTN
2010 (3) SA 382(supra)
at para [90].
)
The Order
After having given careful consideration to the future conduct of
the matter, I come to the conclusion that the convenient and
expeditious disposal of the matter in a fair and appropriate manner
dictates that the issues be separated. In the premises the
following
issues, in terms of Rule 33(4) of the Uniform Rules of Court, are
separated:
(i) Whether the Plaintiff lawfully cancelled the Labour Rates
Agreement – annexure “S2” to the Defendant’s
Amended Plea;
(ii) If not, did the Plaintiff repudiate the said Agreement and was
such repudiation accepted by the Defendant;
(iii) In respect of the greater portion of Plaintiff’s claim
arising from the defective work performed by the Defendant prior
to
the coming into operation of the Labour Rates Agreement and the
remedial work undertaken by the Plaintiff in pursuant thereto:
(a) Firstly, whether the Plaintiff was required to place the
Defendant in
mora
and grant the Defendant a reasonable
opportunity to remedy such defective work; and
(b) Secondly, given the fact that the work performed by the Defendant
was signed off by the quantity surveyor in the employ of
the
Plaintiff, whether the Plaintiff is by law entitled to claim from the
Defendant in respect thereof ;
(c) That the other issues in dispute, if any, be postponed
sine
die
and the determination of such issues be stayed pending the
finalisation of the separated issues;
(d) That the costs of this application stand over for later
determination.