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[2012] ZAECPEHC 20
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Bensure Management Services (Pty) Ltd v Pyke (2355/2011) [2012] ZAECPEHC 20 (27 March 2012)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE- PORT
ELIZABETH)
CASE NO: 2355/2011
Date Heard: 15/03/2012
Date Delivered:
27/03/2012
In the matter between:
BENSURE MANAGEMENT
SERVICES (PTY) LIMITED
…......
PLAINTIFF
AND
DEBORAH GLEN PYKE
….................................................
DEFENDANT
JUDGMENT
SMITH J
[1] The plaintiff
issued summons against the defendant for damages in the amount of
R54 991 936.00, allegedly suffered
by it as a result of the
defendant removing business from plaintiff or its underwriter, in
breach of a written agreement between
the parties. The defendant has
subsequently filed an exception to the plaintiff’s particulars
of claim on the ground that
they are vague and embarrassing. The
exception is particularly aimed at paragraphs 5 and 6 of the
particulars of claim.
[2] Paragraph 5 reads
as follows:
“
Defendant
breached the terms of the agreement by removing all existing,
Plaintiff and new Defendant business as defined in clauses
1.3.5,
1.3.3 and 1.3.7, from Plaintiff or from the underwriter or
Plaintiff’s choice.”
[3] Paragraph 6 relates
to the damages allegedly suffered by the plaintiff. The plaintiff has
subsequently conceded that the latter
paragraph is indeed vague and
embarrassing on the bases contended for by the defendant and has
undertaken to effect the necessary
amendments to the offending
portions.
[4] The grounds for the
exception in respect of paragraph 5 are as follows:
“
1.1
The Plaintiff has alleged that the defendant breached an agreement by
removing business from plaintiff or from the underwriter
of
Plaintiff’s choice.
1.2 The Plaintiff has
therefore pleaded two mutually exclusive alternatives.
1.3 The Plaintiff
furthermore does not state the material facts on which the allegation
that the Defendant removed business is based.
1.4 More specially, the
Plaintiff has not pleaded:
1.4.1 What type of
business was “removed”;
1.4.2 When the business
was “removed”;
1.4.3 From whom the
business was “removed”;
1.4.4 In what manner
the business was “removed”.
1.5 In the premises,
paragraph 5 of the particulars of claim is vague and embarrassing,
and the Defendant would be prejudiced if
the particulars were allowed
to stand.”
[5] Mr Niekerk, who
appeared on behalf of the excipient, submitted that by averring that
business had been removed from the plaintiff
or from its underwriter,
the plaintiff has pleaded two mutually exclusive possibilities which
renders the pleadings vague and embarrassing.
He submitted
furthermore that the plaintiff has simply alleged a breach by
reference to the relevant clauses in the contract and
has not set out
any material facts on which the allegation that there has been a
breach of contract is based. The defendant therefore
does not know
which case she has to meet.
[6]
Rule 18.4 of the
Uniform Rules of Court reads as follows:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies on 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.”
[7]
It
is trite that a plaintiff is required to plead a summary of the
material facts on which he will rely with sufficient lucidity
to
enable the defendant to plead thereto. These primary factual
allegations are also referred to as the
facta
probanda
, and should be distinguished from
the secondary allegations, or
facta probantia
,
which are usually matters for evidence. See
Jowell
v Bramwell-Jones
1998 (1) SA 836
(WLD)
at
903A-B.
[8] The meaning and
scope of an exception that a pleading is vague and embarrassing has
been explained as follows by Mcreath J in
Trope
v South African Reserve Bank
1992 (3) SA 208
(T)
at
211B-E:
“
An
exception to a pleading on the ground that it is vague and
embarrassing involves a twofold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such
a nature
that the excipient is prejudiced (
Quinlan
v McGregor
1960 (4) SA 383
(D) at 393 E-H). As to whether there is prejudice,
the ability of the excipient to produce an exception proof plea is
not the only,
nor indeed the most important test – see the
remarks of Conradie J in
Levitan
v Newhaven Holiday Enterprises
CC
1991
(2) SA 297
C at 28 G-H
.
If that were the only test, the object of pleadings to enable parties
to come to trial prepared to meet each other’s case
and not to
be taken by surprise may well be defeated. Thus it may be possible to
plead to the particulars of claim which can be
read in anyone of a
number of ways by simply denying the allegations made; likewise to a
pleading which leaves one guessing as
to its actual meaning. Yet
there can be no doubt that such a pleading is exipiable as being
vague and embarrassing – see
Parow
Lands Pty Ltd v Schneider
1952 (1) SA 150
SWA at 152 F-G
and the authorities there cited. It follows that averments in the
pleadings which are contradictory and which are not pleaded in
the
alternative are patently vague and embarrassing; one can but be left
guessing as to the actual meaning (if any) as conveyed
by the
pleading.”
[9] Mr Kaplan, who
appeared for the plaintiff, submitted that by averring that business
has either been removed “from
Plaintiff or from the
underwriter of Plaintiff’s choice
” the plaintiff has
in effect pleaded these possibilities in the alternative. Regarding
the submission that the plaintiff
has failed to plead the material
facts on which the allegation that defendant had removed the business
rests, he argued that this
submission is without substance because
such facts would in essence constitute evidence, alternatively, that
any embarrassment
can be met by a request for further particulars.
[10] An exception on
the basis that a pleading is vague and embarrassing cannot be founded
only on the basis of lack of particularity.
In
Absa Bank Ltd v
Boksburg Transitional Local Council 1997 (2) 415
at 422 A-C,
Fleming DJP said the following in this regard:
“
But
how a specific pleading is to be classified is then an
ad
hoc
decision
involving a matter of degree. The decision must necessarily be
influenced, inter alia, by the nature of the allegations,
their
content, the nature of the claim, the relationship between the
parties. It is essentially a factual question.”
Ultimately an exception
on this basis will only be allowed it the excipient will be
prejudiced if the offending paragraphs are allowed
to stand.
(Levitan
v Newhaven Holiday Enterprises CC
1991 (2) SA 297
(C) at 29 A-D).
[11] Paragraph 5 of the
plaintiffs’ particulars of claims really contains the gravamen
of the plaintiff’s cause of action.
The paragraph is however
surprisingly terse and devoid of factual allegations which one would
have expected to be present in a
paragraph which is supposed to
contain the
facta probanda
of the plaintiff’s cause of
action. While the types of business which have allegedly been removed
by the defendant are described
by reference to definitions contained
in the written agreement, the paragraph is silent regarding in what
manner the said business
is alleged to have been removed by the
defendant. The term “remove” is not defined in the
written agreement. The averment
is therefore nothing more than a
conclusion that the defendant’s actions constitute a removal of
business contrary to the
terms of the contract. The material facts on
which this conclusion is based are not stated. Is it for example
alleged, in respect
of the new business as defined in paragraph 1.3.7
of the written agreement, that the defendant has removed business by
not placing
it with the plaintiff or its chosen underwriter, that it
is diverting it to another underwriter or convincing clients to place
their business elsewhere? While it can be argued that it is possible
for the defendant to plead and simply deny the allegation,
this can
in my view not change the fact that the pleading is vague and
embarrassing. The offending paragraph’s true meaning
is
obfuscated by the lack of material facts and the defendant is left
guessing as to the case she will have to meet. I am therefore
of the
view that the defendant would be prejudiced if the paragraph is
allowed to stand in its present form.
[12] I can also not
agree with Mr Kaplan’s submission that the words “
from
Plaintiff or from the underwriter of Plaintiff’s choice”
mean that the plaintiff has effectively pleaded these two
possibilities in the alternative. The clauses in the written
agreement
which are referred to in this paragraph define different
types of business which, in terms of clause 3.3 of the written
agreement,
would all be placed with an underwriter of the plaintiff’s
choice. Is it averred that the defendant has removed some business
from the plaintiff and some from its underwriter, or that all the
business has been removed from either of them? The pleading is
therefore in my view vague and embarrassing for this reason also.
[13] In the result the
exception is upheld with costs and the plaintiff is granted leave to
amend its particulars of claim within
a period of twenty one (21)
days from the date of this judgment.
_______________________
J SMITH
JUDGE OF THE HIGH
COURT
Appearance
Counsel for the
Plaintiff : Adv D Niekerk
Attorney for the
Applicant : Joubert Galpin Searl
Mill Park
P.O Box 59
PORT ELIZABETH
Tel: 041 396 9220
Counsel for the
Respondent : Adv J. Kaplan
Attorneys for the
Respondent : Vlok Attorneys
Suite 6A Moffet on Main
Lifestyle
Main Road
Walmer
PORT ELIZABETH
Ref: M A
Vlok/CT/P4801/HC/11