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[2010] ZAGPPHC 83
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Nel v Tsai and Others (40185/09) [2010] ZAGPPHC 83 (30 July 2010)
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 40185/09
DATE:
30/07/2010
In
the matter between:
PETRUS
JACOBUS NEL
and
STEVEN
MARTIN TSAI 1
st
DEFENDANT
IRENE
MARGARET TSAI 2
nd
DEFENDANT
M
& T DEVELOPMENT (PTY) LTD 3
rd
DEFENDANT
SUNRISE
MORELETAPARK PROPERTIES (PTY) LTD 4™ DEFENDANT
WING
TAI DEVELOPMENT (PTY) LTD 5
th
DEFENDANT
ERF
68 ERASMUS KLOOF EXTENSION 3 (PTY) LTD 6
th
DEFENDANT
ERF
105 ERASMUS KLOOF EXTENSION 3 (PTY) LTD 7™ DEFENDANT
JR
209 INVESTMENTS (PTY) LTD 8
th
DEFENDANT
FAERIE
GLEN WATERPARK (PTY) LTD 9™ DEFENDANT
CENTURION
VISION DEVELOPMENT (PTY) LTD 10
th
DEFENDANT
ERF
1836 GARSFONTEIN EXTENSION 8 CC 11
th
DEFENDANT
FAERIE
GLEN EXTENSION 28 CC 12
th
DEFENDANT
ERF
87 ERASMUSKLOOF EXTENSION 3(PTY) LTD 13™ DEFENDANT
MORELETA
PARK PROPERTY 3 (PTY) LTD 14
th
DEFENDANT M & T DEVELOPMENT - PROPERTY MARKETING (PTY) LTD 15™
DEFENDANT
STEVEN
MARTIN TSAI N.O. 16™ DEFENDANT
IRENE
MARGARET TSAI N.O. 17™ DEFENDANT
JAMES
BARRY MUNNIK HERTZOG N.O. 18™ DEFENDANT
JUDGEMENT
GOODEY
AJ:
[1]
INTRODUCTION:
1.1
This
matter concerns two exceptions raised by the
Defendants
to the Plaintiff's particulars of claim in that, first, it lacks the
necessary averments to sustain a cause of action
against the
Defendants and secondly, that it is vague and embarrassing tc the
extent that the Defendants are unable to properly
plead thereto.
The
Defendants set out six basises upon which
the
exceptions
are founded. These (according to the Defendants) can be summarized as
follows:
1.2.1
First
Basis:
Paragraphs
29.1 to 29.6 of the particulars of claim list the express terms of
the employment agreement as they appear in clauses
1 to 9 (excluding
clauses 6 and 7) thereof. Although clauses 1 to 5 and 8 and 9 of the
letter of appointment are paraphrased in
paragraphs 29.1 to 29.6 of
the particulars of ciaim they clearly denote, in no uncertain terms,
the express terms of the employment
agreement.
1.2.2
Second
Basis:
The
relief which the Plaintiff seeks in regard to the alternative claim
is the delivery of accounts, the debatement of such accounts
and
payment to the Plaintiff of any amounts found to be owing to the
Plaintiff. The Defendant further submit that in
total
contradistinction to the clear terms of paragraph 5 the Plaintiff
alleges in paragraph 30 that the obligation there pleaded
is a
once-off obligation and not a continuous obligation as provided for
in clause 5 of the letter of appointment.
1.2.3
Third
Basis:
The
Plaintiff's allegations that he is entitled to 10% of the nett asset
value of each of the Third to Fifteenth Defendants are
obviously
predicated upon the allegations made in paragraph 30 of the
particulars of claim. The argument continues that this in
contradiction with paragraph 30 of the particulars of claim.
1.2.4
Fourth
Basis:
This
pertains to paragraph 32 of the particulars of claim which was
conceded during argument and therefore needs not further
consideration.
1.2.5
Fifth
and Sixth Bases:
These
pertain to paragraph 34 of the particulars of claim which was also
conceded by the Plaintiff during argument and does not
need further
consideration.
WHAT
REMAINS?:
2.1
After various concessions made during argument by Mr Arnoldi SC
;
what remains is in essence that the Plaintiff persists that the
so-called ''Letter of Appointment" is susceptible for more
than
one interpretation. It is therefore argued that a trial Court will
allow and accept evidence pertaining to an impfied term.
2.2
The nett result is that the Defendants expect this Court at this
stage to interpret the "Letter of Appointment" as
only
susceptible to one interpretation only.
LEGAL
PRINCIPLES IN RESPECT OF AN EXCEPTION:
3.1
It is trite law that a Court will not easily settle questions of
interpretation
at the exception stage.
In
this regard the following is said.
3.1.1
An exception is generally not the appropriate procedure to settle
questions of interpretation because, in cases of doubt,
evidence may
be admissible at the trial stage relating to surrounding
circumstances, which evidence may clear up the difficulties.
Murray
& Roberts Construction Ltd v Finat Properties (Pty) Ltd
[1991] 1
All SA 382
(A),
1991 (1) SA 508
(A)
Sun
Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA 176
(SCA)
Similarly,
whether a contract is void for vagueness does not readily fall to be
decided by way of exception.
Lewis
v Oneanate (Pty) Ltd
[1992] ZASCA 174
;
[1992] 2 All SA 498
(A),
1992 (4) SA 811
(A)
817-818
SEE:
Amier's Precedents of Pleadings (7
th
Edition)
3.1.2
Also see:
Herbstein
and Van Winsen [Civil Practise] (Fifth Edition)
On
p636:
"An
exception that a pleading is vague and embarrassing ought not to be
allowed unless the excipient would be seriously prejudiced
if the
offending allegations were not expunged. A pleading will not cease to
be prejudicial merely because it is possible to draft
an
unexcipiable."
On
p637:
The
excipient
has the duty to persuade
the court that upon every interpretation which the pleading
can
reasonably bear, no cause of action or defence is disclosed.
Courts
are reluctant to decide upon exception questions concerning the
interpretation of a contract
where its meaning is uncertain. When the exception is based upon an
interpretation of a contract, it is necessary for the excipieni
to
demonstrate that the contract is unambiguous."
(my
underlining) "
3.1.3
I have been referred to various authorities by both counsel which do
not detract from the aforesaid principles.
[4]
CONCLUSION:
In
view of the aforegoing,
I
am
not convinced that the "Letter of Appointment" is totally
unambiguous.
[5]
COSTS:
As
I
have
indicated various concessions were made on behalf of the Plaintiff.
The nett result is that both parties were partly successful.
In
the result I am of the opinion that costs should be costs in the
cause. I therefore make the following order:
1.
The
exception is dismissed;
2.
Costs are costs in the cause.
GOODEY
AJ.