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[2010] ZAECPEHC 12
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Aveng (Africa) Ltd v Varicor Six (Pty) Ltd t/a Sigma Consulting (1613/09) [2010] ZAECPEHC 12 (9 April 2010)
IN THE HIGH COURT OF SOUTH AFRICA
(
EASTERN
CAPE, PORT ELIZABETH)
CASE NO.
1613/09
In
the matter between:
AVENG
(AFRICA) LIMITED
Plaintiff
and
VARICOR
SIX (PTY) LIMITED
t/a
SIGMA CONSULTING
Defendant
J U D G M E N T
SANGONI
J:
This judgment concerns an exception
by the defendant to the plaintiff’s summons. On 17 June 2009
the plaintiff issued
summons against the defendant, claiming damages in the sum of
R785 151.00 arising from an alleged breach
of agreement entered
into on or about 07 February 2001 by and between the parties.
In
terms of the agreement the plaintiff appointed the defendant as a
civil and structural engineer for the building of a certain
factory
and warehouse.
The alleged breach is set out as follows:
“
6.1 The defendant failed to perform its
obligations with the required skill, care and diligence.
6.2 In particular, the defendant failed to adequately design and/or
monitor the fastening of two longitudinal adjacent crane rails
forming part of the structure, so as to achieve a frictionless
connection between them, in that:
6.2.1 The surge girders that were used to fasten the crane rails were
“stepped” due to the support girders for the
crane rails
being at different heights.
6.2.2 The friction grip bolts were inadequately positioned.
6.2.3 Slotted holes for the friction bolts were
used along the length of the “stepped” surge girders.
”
The basis of the claim is that t
he
plaintiff allegedly remedied the defects at a cost of R785 151.00,
broken down as follows:
“
8.1 Project manager R 5,560.00
8.2
Detailing of
drawing R 30,408.00
8.3 Fabrication (labour) R 56,921.00
8.4 Fabrication (material; at cost) R 30,941.00
8.5 Uitenhage Supersteel
(gantry work; at cost)
R429,020.00
8.6
Shop paint
(material; at cost) R 22,714.00
8.7 Shop paint (labour) R 10,258.00
8.8 Shop bolts (at cost) R 31,941.00
8.9 Travel and accommodation R 17,388.00
8.10 Transport of fabricated items to site,
disruption of production R150,000.00
TOTAL R785,151.00
”
In terms of
the
proviso to Rule 23 of the Uniform Rules of Court the defendant
delivered a notice calling on the plaintiff to remove the causes
of
complaint referred to in the said notice. They are formulated as
follows:
“
2. Whilst, in paragraph 8 of the
Particulars of Claim, the sum claimed is broken down into various
categories, there are no allegations
set forth in the Particulars of
Claim indicating what steps were taken, and what work was performed
by, or on behalf of the Plaintiff,
to remedy the defects.
3. In the abovementioned circumstances, the
information set forth in paragraph 8 of the Particulars of Claim is
rendered meaningless
as the Defendant is unable reasonably to assess
on what basis the various sums referred to in clause 8 of the
Particulars of Claim
are arrived at and relate to the nature and
amount of work undertaken by the Plaintiff to remedy the alleged
defects.
”
The plaintiff did not respond to the
said notice. On 11 August 2009
the
defendant filed a notice of exception grounded on what is reproduced
hereunder:
“
Although the alleged breaches of contract
are detailed in the Particulars of Claim and although the manner in
which the sum claimed
is arrived at is set forth in the Particulars
of Claim, there is no nexus, in the Particulars of Claim, between the
sum claimed
and the alleged breaches of contract such that the
Defendant would be enabled to assess the quantum thereof for the
purposes of
pleading.
”
In the same notice the defendant amplified the
particulars of complaint by referring specifically to the following:
[7
.1] No
indication of what drawings were prepared (clause 8.2 of the
Particulars of claim).
[7
.2] No
indication of what was fabricated (clause 8.3).
[7
.3] No
indication of what material was purchased (clause 8.4).
[7
.4] No
indication of why gantry work was necessary.
Before dealing with the merits and
de-merits of the exception it is appropriate to ad
dress
the issue raised by Mr Wickins, counsel for the plaintiff, which is
that the notice given by the defendant, purportedly
in terms of the
proviso to Rule 23(1) of the Rules of Court, was not a proper
notice. It follows, according to that argument,
that the exception
to the summons on the basis that it is vague and embarrassing can
therefore not stand as the plaintiff has
not been given an
opportunity to remove the causes of complaint
1
.
Mr Wickins contends that the exception is at variance
with the notice that precedes it. In the exception reference is
made to
drawings, fabrication material and gantry work whereas in
the notice there is no such reference. If there is any error on the
part of the excipient, it is, in my view, the unpacking or giving of
explanatory details of the cause of complaint. The phrase
used to
describe the cause of complaint in the preceding notice is “there
are no allegations set forth in the Particulars
of Claim indicating
what steps were taken, and what work was performed by, or on behalf
of the Plaintiff to remedy the defects”.
That encompasses the
details subsequently appearing in the notice of exception. The
plaintiff was not in any way prejudiced.
In
Venter
& Others NNO
2
Potgieter AJ painted a clear picture around the issue as to when a
declaration or particulars of claim may be excepted to on
the basis
of it being vague and embarrassing. The following is an extract
from the judgment he wrote:
“
Generally the information in a declaration
or particulars of claim need only be sufficient for the defendant to
plead thereto.
The exception stage is not the time for the defendant
to complain that he does not have enough information to prepare for
trial
or may be taken by surprise at the trial. That comes later in
the (often long and cumbersome) journey to the doors of the court,
after, inter alia, discovery of documents and requests for trial
particulars had been made.
”
The law is quite clear as to what
degree of vagueness in the pleading justifies an exception. During
argument counsel were
ad
idem
as to the
legal requirements that make an exception taken fail or succeed.
Consensus seemed lacking on the question of what
facts need be
presented so as to comply with Rule 18(4) which requires that:
“
Every pleading 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
”.
It is an issue of fact whether a
pleading contains sufficient particularity and
accordingly
not vague and embarrassing. As a starting point, I should indicate
that I accept, as a guideline, the principle reiterated
in
Nasionale
Aartappel Koöperasie Bpk
3
when it was held that “a pleading contained sufficient
particularity if it identified and defined the issues in such a
way
that it enabled the opposite party to know what they were.”
In
casu
the defendant
contends that the plaintiff has supplied particulars that failed to
give the defendant any guidance in respect of
assessment of damages.
One of the requirements to prove in a claim for damages arising out
of a breach of contract, is a causal
link between the breach and
damages
4
.
Another element is that the loss must not be too remote. The
breach must be
causa
sine qua non
for
the loss. In
casu
Mr Beyleveld SC, for the defendant, contends that there is no such
nexus between the sum claimed in every item and the alleged
breach
of contract.
It has been contended on behalf of the plaintiff that
the nexus is clear from the use of the words “as a result”
of
the breach and that the defendant “incurred …
expenses” to remedy the defects. In my view there is no magic
in those words. The litigant remains obliged to show that the
remedial steps taken, where there is such allegation, have in
turn a
nexus with the alleged defects complained of. To simply put words
and accompanying figures leaving the defendant without
a clue as to
the nature of the steps taken is not enough. The defendant needs to
be informed of the remedial work performed
and costs’ details.
A close look at each of the steps taken will reveal that the
defendant is in no position to know the
nature and amount of the
remedial work. As an illustration, a question arises whether such
nexus exist between the alleged breach
of agreement as set out in
paragraph 3 above, and the “project manager” and
“detailing of drawing” referred
to in 8.1 and 8.2 of the
particulars of claim. In my view it does not. To simply say the
cost of the remedial work done is
R5560 for the item referred to as
“project manager”, for instance, does not help establish
what was done and the
relevance thereof to the alleged breach of
agreement.
Mr Beyleveld also contended that the
plaintiff has not complied with the provisions of Rule 18(10). The
damages claimed are not
set out in such a manner as will enable the
defendant reasonably to assess the quantum thereof. The issue of
non-compliance
with the provisions of the Rule provides per se no
ground to render a pleading excipiable. Such non-compliance may
provide a
good reason for attacking the pleading as an irregular
proceeding in terms of Rule 30. For purposes of an Exception, the
relevant
element of vagueness of the pleading is essential
5
.
Even though there appears to be
non-compliance with Rule 18(10) as well which could be dealt with in
terms of Rule 30 as envisaged
in Rule 18(12), the defendant
is not precluded from excepting thereto via Rule 23 if
non-compliance renders the pleading vague and embarrassing
6
.
In my judgment the complaint raised
by the defendants strikes at the formulation of the cause of action.
The averments set out
in the particulars of claim are not in
sufficient detail for defendant to plead thereto
7
.
The summons is thus vague and embarrassing. The Exception must
therefore be upheld.
In the result the following order is made:
The E
xception
is allowed.
The
plaintiff
is given leave to amend its particulars of claim, if so desired,
within 14 days from the date of this Order.
The plaintiff i
s
ordered to pay costs of this Exception.
C
T SANGONI
JUDGE OF THE HIGH COURT
Counsel for the Plaintiff : Adv G Wickins
Attorneys for the Plaintiff : Rushmere Noach Inc
Port Elizabeth
Counsel for the Defendant : Adv A Beyleveld SC
Attorneys for the Defendant: Boqwana Loon &
Connellan
Port Elizabeth
Date heard : 04 March 2010
Date Judgment delivered : 09 April 2010
AVENG
(AFRICA) LIMITED and Varicor Six (Pty) Ltd Case no 1613/2009
1
NKP Kunsmisverspreiders v Sentrale Kunsmis Korp.
1973 (2) SA
680
(CPD) at 688C-D.
2
Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
SA 2008 (4)
639 (CPD)
3
Nasionale Aartappel Koöperasie Bpk v
Price Waterhouse Coopers Ing en Andere
2001 (2) SA 790
(T) at 798F/G
– 799J parapharased
4
Amlers Precedents of Pleadings 6
th
Edition (Harms) P101
5
ABSA Bank Ltd v Boksburg Transitional Local
Council (Government of the Republic of South Africa, Third Party)
,
1997 (2) SA 415
at 418F-G, (WLD);
Grindrod
(Pty) Ltd v Delport and Others
1997
(1) SA 342
(WLD)
6
Sasol Industries (Pty) Ltd t/a Sasol 1 v
Electrical Repair Engineering (Pty) Ltd t/a L H Marthinusen….
[1992] 4 All SA 505
(W) at P3.
7
Venter and Others
supra.