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[2010] ZAGPPHC 107
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Fast and Easy Developers CC v City of Tshwane (Energy and Electricity Division) (37401/09) [2010] ZAGPPHC 107 (10 September 2010)
IN THE NORTH GAUTENG
HIGH COURT,
PRETORIA (REPUBLIC
OF SOUTH AFRICA)
CASE
NUMBER: 37401/09
DATE:
10/09/2010
In the matter
between:
FAST AND EASY
DEVELOPERS CC Plaintiff/Respondent
and
CITY OF TSHWANE
(ENERGY AND
ELECTRICITY DIVISION) Defendant/Excipient
JUDGMENT
GOODEY AJ:
[1]
INTRODUCTION:
1.1 The defendant
has taken an exception to the plaintiff's amended particulars of
claim on the grounds thereof that such particulars
of claim lack the
necessary averments to sustain a cause of action and are vague and
embarrassing.
[2] THE
EXCEPTIONS:
2.1 AD: Paragraph 3
of the amended particulars of claim
At the commencement
of argument, Mr Tokota SC (on behalf of the excipient) indicated that
he would not proceed with this exception.
2.2 AD: Paragraph 4
of the amended particulars of claim
This is a complaint
that there is no compliance with Rule 18(4) of this court.
The excipient puts
it as follows in paragraphs 5.2, 5.3 and 5.4 of the exception.
"5.2 The
plaintiff has failed to identify the portions on which reliance for
its cause of action is placed on the annexures
referred to in this
paragraph.
5.3 Consequently,
the plaintiff's amended particulars of claim are vague and
embarrassing.
5.4 Furthermore, the
plaintiff has failed to identify the persons who allegedly
represented the defendant in this paragraph so as
to establish
vicarious liability of the defendant."
2.3 Furthermore, the
excipient complains in paragraphs 5, 6 and 7 of his exception that
the defendant unilaterally cancelled the
agreement between the
parties. Thus, says the defendant, the gist of the complaint is that
the plaintiff has not alleged anywhere
in its amended particulars of
claim when, how and in what manner did the parties agree on the
cancellation of the contract.
[3] The counsel for
the plaintiff dealt mostly with the law pertaining to exceptions and
his argument that there was no prejudice
to the defendant.
[4] THE LAW:
The law pertaining
to exceptions is well established. In this regard it is not necessary
to refer to more than the following:
4.1 "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: Amler's
Precedents of Pleadings (7Th Edition)
4.2 For the purpose
of deciding an exception, the court thus takes the facts alleged in
the pleading as correct. It has been held,
however, that the
principle that a court is obliged to take the pleadings as they stand
for the purpose of determining whether
an exception to them should be
upheld is limited in operation to allegations of act, and cannot be
extended to inferences and conclusions
not warranted by the
allegations of fact. This principle does not oblige a court to
stultify itself by accepting facts which are
manifestly false and so
divorced from reality that they cannot possibly be proved.
An exception may not
be taken against an alternative claim arising out of the same cause
of action but may by taken against an alternative
cause for the same
claim."
See: Herbstein and
Van Winsen [latested, p633)
[5] CONCLUSION:
Having perused the
amended particulars of claim carefully, I find the argument on behalf
of the excipient persuasive and consequently
the exception should
succeed.
Therefore, I make
the following order:
1. The exception is
upheld with costs including the costs of two counsel;
2. The Plaintiff is
granted 20 days within which it has the opportunity to amend its
particulars of claim.
GOODEY AJ
ATTORNEYS FOR THE
PLAINTIFF BURGER & HLONGWANE ATTORNEYS
C/O VICTOR MABE
ATTORNEYS
217 PRETORUIS STREET
SUITE 433 VAN ERKOM
BUILDING
PRETORIA
0002
TEL: 086 110 5750
REF: SPH/0450
ATTORNEYS FOR THE
DEFENDANT'S MATABANE INCORPORATED
SAVELKOULS BUILDING
3rd FLOOR
CNR PAUL KRUGER &
PRETORIUS STREET
PRETORIA
TEL: 012 326 7076
REF: J.P MATABANE /
KA PHOKWANE ML 1247
APPLICANT'S COUNSEL
: B.R TOKOTA SC & Z.Z MATEBESE
RESPONDENT'S COUNSEL
: ADV LENNY LEBALLO