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[2010] ZAECPEHC 11
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Chemical Specialities (Pty) Ltd v Humansdorp Paint Centre CC (227/09) [2010] ZAECPEHC 11 (30 March 2010)
IN THE HIGH COURT
OF SOUTH AFRICA
NOT
REPORTABLE
EASTERN CAPE, PORT ELIZABETH
Case No.: 227/09
Date
delivered: 30 March 2010
In the matter between:
CHEMICAL
SPECIALITIES (PTY) LTD
Applicant/Plaintiff
and
HUMANSDORP PAINT
CENTRE CC
Respondent/Defendant
JUDGMENT
EKSTEEN, J:
[1] This is an
application for the amendment of the Particulars of the plaintiff’s
Claim.
I shall refer to the parties herein as they are in the action.
[2] In its Particulars of Claim, as
currently formulated, the plaintiff alleges:
“3.
During or about February 2007 and at
Humansdorp, the Plaintiff and the Defendant concluded a written
agreement, the terms of which
would apply to all transactions between
the parties.
4.
A copy of the agreement is attached
hereto, marked “A”.
5.
In concluding the agreement:
5.1. the Plaintiff was represented by
its authorised employees;
5.2 the Defendant was represented by
Mr J Lissner, he being duly authorised thereto as a Member.
6.
In terms of the agreement:
6.1 The Plaintiff would sell from time
to time, to the Defendant, its goods on credit;
6.2 The Defendant would:
6.2.1 pay to the Plaintiff its ruling
or agreed prices;
6.2.2 make payment
for goods within a period of 30 days from
the
date of the Plaintiff’s statement of account in respect
thereof;
6.3 …
8.
The Plaintiff duly delivered the goods
which the Defendant purchased.
9.
The Plaintiff duly rendered statements
of account to the Defendant for payment of the purchase price.
10.
The Defendant having failed to make
payment of any statement on due date (being 30 days from date of
receipt of statement of account),
all amounts owing by the Defendant
to the Plaintiff are immediately due and payable.
11.
The balance of the purchase price for
such goods which the Defendant has not paid, is the aggregate amount
of R905 132.81, as reflected
in the Tax Invoices annexed hereto
marked “B1” and “B2”.
12.
The National Credit Act, 34 of 2004 is
not applicable in as much as no charge, fee, nor interest has been
levied against the Defendant.
13.
In the alternative, should the above
Honourable Court find that a charge, fee or interest has been levied
against the Defendant,
then Plaintiff pleads that the agreement upon
which Plaintiff’s action is founded is exempted from the
provisions of the
National Credit Act, 34 of 2005
as the Defendant is
a juristic person and has an asset value or annual turnover equal to
or over R1 000 000.00 alternatively the
agreement upon which
Plaintiff’s action is founded constitutes a large credit
agreement with a juristic person whose asset
value or annual turnover
is less than R1 000 000.00.”
[3] The defendant
served a notice in terms of rule 23 of the Uniform Rules of Court on
the plaintiff alleging that the Particulars
of Claim were vague and
embarrassing. It raised two grounds. Firstly, the defendant
contended that the alleged agreement, Annexure
“A” to the
Particulars of Claim did not constitute an agreement and was merely a
unilateral application for credit.
It is not signed on behalf of the
plaintiff. In the second ground raised it is contended that
Annexures “B1” and
“B2” relate to stock
delivered prio
r
to the application for credit and that the agreement relied upon
could not apply to these invoices.
[4] This notice prompted an
application for an amendment to the pleadings. The relevant portion
of the Notice of Intention to Amend
reads as follows:
“
1. By the
deletion of the existing paragraph numbered 11 and substituting
therefore the following:
“11.
The
value of the purchase price for the said goods, which purchase
price the Defendant has not paid, is the sum of R124 235.63,
as
reflected in the tax invoice annexed hereto marked “B2”.”
2.
By
the removal of annexure “B1” as an annexure to the
Particulars of Claim.
3.
By
the inclusion of the following additional paragraphs:
“12.
In or about the period
September/October 2006, and in Durban, an oral agreement was
concluded between the Plaintiff and the said
Mr J Lissner
(“Lissner”).
13.
In concluding the said agreement the
Plaintiff was represented by one, S Barron-Wood and Lissner acted in
person.
14.
The material terms of the said oral
agreement were that Lissner would acquire from the plaintiff the
assets of the business known
as E P Paint & Hardware, including
its stock in trade, against payment of the sum of R779 897.18.
15.
During or about December 2006, and at
Durban, alternatively Humansdorp, the Plaintiff, Lissner and
Defendant, represented by Lissner,
tacitly agreed that Defendant
would assume from Lissner all the rights and obligations under the
agreement referred to in paragraph
14 above.
16.
In the premises, with effect from
December 2006 the Defendant became liable to pay to Plaintiff the
said sum of R779 897.18 by reason
of the fact that Lissner had not,
prior to the agreement referred to in paragraph 15, discharged the
said debt which he owed to
the Plaintiff.”’
[5
] It
may be seen from the Notice of Intention to Amend that,
notwithstanding the numbering set out therein paragraphs 12 and 13
of
the original Particulars of Claim are not deleted. I shall, for
purposes hereof assume, in favour of the applicant, that paragraphs
12 and 13 of the original Particulars of Claim remain.
[6] The aforestated Notice of
Intention to amend was again met with by an objection. In respect of
the newly formulated paragraph
11 which the plaintiff seeks to
introduce the defendant’s objection reads as follows:
“
3. In
terms of the amended paragraph 11 it is alleged that goods in the
amount of R125 235,63 were delivered in terms of the
agreement set
out hereinabove.
4.
Annexure
“B2” refers to “
Humansdorp
stock January 2007
”
and it is impossible for the said stock to be delivered in terms
of an agreement only concluded in February 2007.”
[7] The objection to the remainder of
the intended amendment is aimed at the new paragraph 15 in the
proposed amendment which seeks
to place reliance of a “tacit
agreement”. The defendant contends that a plaintiff relying on
a tacit agreement has
to set out the conduct and the circumstances on
which the party relies for its allegation that a tacit agreement was
concluded.
The defendant accordingly resists the amendment.
[8] The court will
usually allow an application to amend unless it is made
mala
fide
or unless such amendment would cause an injustice to the other side
which cannot be compensated by costs, in other words, unless
the
parties cannot be put back for purposes of justice in the same
position as they were when the pleadings which it is sought
to amend
were filed. See for example
Moolman
v Estate Moolman
1927
(CPD) 27 at 29
.
Where, however, the granting of the application for amendment would
render the pleading excipiable the court will not grant an
amendment.
See for example
De
Klerk and Another v Du Plessis and Others
1995 (2) SA 40
TPD at 43I-44A and the authorities discussed therein.
The defendant in the present instance contends that permitting the
amendment
would render the pleading excipiable.
[9] The objection to paragraph 11 of
the proposed amendment is to be found in the formulation of Annexure
“B2”. Annexure
“B2” is a tax invoice issued
by the plaintiff on 23 March 2007 reflecting the goods sold as
“Humansdorp stock
January 2007”. On this basis alone,
the defendant contends that it is impossible for these goods to have
been delivered
pursuant to the application for credit which was
submitted on 16 February 2007. The description ‘Humansdorp
stock January
2007” is, however, no more than a description of
the goods sold and delivered. It has no bearing upon the date upon
which
the goods were either sold or delivered. The plaintiff
contends that these goods were delivered pursuant to the agreement
which
is set out in paragraph 3 of the Particulars of Claim, being
the agreement to deliver goods on credit. When the goods were in
fact sold and delivered appears to me to be a matter of evidence
which cannot be determined at this stage. The fact, however, that
the goods are described with reference to a stock take which preceded
the agreement relied upon is neither here nor there.
[10] The amendment
set out in the proposed new paragraphs 12-16 in the Notice of
Intention to amend sets out a separate cause of
action in respect of
the amount of R779 897,18 which is claimed in paragraph 16. The
tacit agreement relied upon in the proposed
new paragraph 15 is
fundamental to this claim. Rule 18(6) of the Uniform Rules of Court
provides that it is not necessary in any
pleading to state the
circumstances from which an alleged implied term can be inferred.
Whether the rule was intended to refer
only to an implied term, in
the strict sense, or whether it was intended to incorporate also a
tacit term is not material to the
present enquiry. The rule relates
only to a term included in an express agreement. Where reliance is
placed on a contract which
has been tacitly concluded it is necessary
for the pleader to set out in his pleadings the facts and
circumstances upon which reliance
is placed for the conclusion that
the parties intended to contract on the terms contended for. See
Robert
Construction (Pty) Ltd v Dominion Earthworks (Pty) Ltd and Another
1968 (3) 255 (AD) at 261. A failure to do so would render the
pleading excipiable as it would lack averments necessary to sustain
a
cause of action.
[11] In the circumstances I am of view
that the objection raised in respect of the proposed paragraphs 12-16
in the Notice of Intention
to Amend is sound. The application for
this amendment must accordingly be dismissed.
[12] The difficulty which the
plaintiff faces in the event of the amendment in paragraph 11 being
granted is that the Notice of
Intention to Amend does not seek to
amend any of the prayers. If the amendment sought to paragraph 11
were granted, while the
remainder of the amendment is refused, a
valid cause of action would be established in respect of the amount
of R125 235,63. This
would be wholly at variance with the prayer for
judgment in the amount of R905 132,81. The Particulars of the
plaintiff’s
Claim would then be excipiable on the basis that it
would be vague and embarrassing. In these circumstances I do not
consider
that the amendment to paragraph 11 can stand on its own and
it too must be dismissed.
[13] In the result, the application is
dismissed with costs.
______________________________
J W EKSTEEN
JUDGE OF THE HIGH COURT