About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2019
>>
[2019] ZAECPEHC 2
|
|
Shones Automation (Pty) Limited v Smokey Mountain Trading 444 (Pty) Limited t/a Mechatronics (1554/2018) [2019] ZAECPEHC 2 (19 February 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.: 1554/2018
Date Heard: 8
February 2019
Date
Delivered: 19 February 2019
In
the matter between:
SHONES
AUTOMATION (PTY) LIMITED
Applicant
(Registration
Number: 2015/190926/07)
and
SMOKEY
MOUNTAIN TRADING 444 (PTY) LIMITED
t/a
MECHATRONICS
Respondent
(Registration
Number: 2005/025456/07)
JUDGMENT
GAJJAR
AJ:
Introduction
[1]
This is an application in terms of Rule 28(4) in which the applicant,
Shones Automation (Pty) Ltd, as plaintiff in the action seeks to
amend its particulars of claim pursuant to a notice of objection
filed by the respondent, Smokey Mountain Trading 444 (Pty) Ltd t/a
Mechatronics.
[2]
For the sake of convenience I shall refer to the parties as in
convention.
[3]
Although the plaintiff’s application is brought outside the ten
day period referred to in Rule 28(4), the defendant does not join
issue with the delay and thus no more need be said about that.
The
defendant’s grounds of objections
[4]
The defendant objects to the plaintiff’s proposed amendment of
its
particulars of claim on two grounds, namely that:
4.1
The plaintiff’s claim does not allege that the damages claimed
are reasonable
[1]
;
4.2
It is impossible, upon a proper reading and construction of the
particulars of
claim, as read with annexures “POC2” to “POC7”,
to determine what work was undertaken
in
order to remedy the allegedly defective work and what portion
of the invoices is reduced by the aggregate sum of €61 000.
[5]
Faced with the aforesaid objections, the plaintiff brought the
present
application supported by a founding affidavit, to which the
defendant filed an answering affidavit and the plaintiff having
elected
not reply thereto.
The
proposed amended particulars of claim
[6]
In its proposed amended particulars of claim the plaintiff pleaded
that
it was awarded a contract by Eisenmann South Africa (Pty) Ltd
(“company E”) to perform works and services which
included
electrical installations. Following the conclusion of
that contract a subsequent oral agreement was entered into between
the plaintiff and the defendant, both duly represented by their
respective representatives. The plaintiff has further pleaded
that the material, express, alternatively tacit, alternatively
implied terms of the oral agreement were,
inter alia
, the
following:
6.1
The defendant would provide to the plaintiff a PLC programmer to work
on site on behalf of the plaintiff
on the company E contract;
6.2
That the PLC programmer would have the necessary training,
experience, qualification and
skill to install and operate and manage
the appropriate and necessary PLC program;
6.3
That the PLC programmer provided by the defendant would perform his
services in a proper
and workmanlike manner and in accordance with
the requirements of company E; and
6.4
That the defendant would charge the plaintiff for the PLC programmer
at a rate of R600 per
hour.
[7]
The plaintiff relies on the defendant’s alleged breach of the
oral
agreement in that it provided a programmer who did not have the
necessary training, experience, qualifications and skill to install,
operate and manage the necessary PLC programme. Following such
alleged breach, the work performed by the defendant’s
programmer had to be rechecked and corrected by a third party and
company E was invoiced for all necessary and related costs thereof.
The plaintiff in its proposed amended particulars of claim has
attached seven invoices made out to company E which totals
€203 855.01.
[8]
In paragraph 7 of the particulars of claim, the plaintiff contends
that
the total sum of €203 855.01 was reduced by the sum of
€19 000 and €42 000 respectively for which
it and
company E were not liable leaving a balance of €142 855.01.
This amount was then reduced by 50% as the third
party gave company E
a 50% discount. Company E’s indebtedness to the third
party was thus €71 427.51, being
the amount, plus 14% VAT
which the plaintiff claims from the defendant.
[9]
It is the setting out of the total value of the seven invoices as
well
as the deductions set out in paragraph 7 of the proposed amended
particulars of claim which is the main cause of the defendant’s
complaint.
[10]
As part of the plaintiff’s proposed amended particulars of
claim it has attached
an annexure from company E, being annexure
“POC8”. It is this invoiced amount which the
plaintiff claims from
the defendant, less the amount of R113 177.00
as set out in paragraph 9.1 of the proposed amended particulars of
claim.
[11]
The defendant submits that it is impossible to determine from the
proposed amended particulars
of claim, as read with the annexures
thereto, as to which alleged services referred to in the annexures
are not for its account.
The defendant further submits that the
plaintiff, at the very least, is required to specifically stipulate
what portion of the
attached invoices are not for its account.
[12]
The defendant, however, does not address the contents of annexure
“POC8”, being
the invoice from the company E to the
plaintiff. I will return to this issue below.
Pleadings:
the applicable rules and legal principles
[13]
Rule 18(4) provides 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”;
and
[14]
Rule 18(10) requires that
“
A plaintiff
suing for damages shall set them out in such a manner as will enable
the defendant reasonably to assess the quantum
thereof: …”
[15]
There is no
exhaustive test to determine whether a pleading contains sufficient
particularity, the test being whether the pleading
identifies and
defines the issues in such a way that it enables the opposite party
to know what they are.
[2]
[16]
The
defendant has submitted that the provisions of Rule 18(4) should be
read conjunctively with the provisions of Rule 18(10) in
regard to
the particulars required when claiming damages. In
Grindrod
(Pty) Ltd v Delport and Others
[3]
Blieden J stated the following with reference to Rule 18(4) and
18(10):
“
It seems to me
that these two sub-rules have entirely different functions and are
not in any way related.
Rule 18(4) relates to
the pleading of facts which makes up either a claim, defence or
answer. Here the requirement is that
such facts be pleaded with
‘sufficient particularity to enable the opposite party to reply
thereto’
.
The purpose of Rule
18(10) is to ensure that in damages claims the plaintiff sets out
such a claim ‘in such a manner as will
enable the defendant to
reasonably assess the quantum thereof.”
[17]
I align myself with the afore-going view and thus do not favour the
approach advocated
on behalf of the defendant.
[18]
The
defendant has accepted that it has a duty to work out what is a
reasonable assessment of damages sustained by the plaintiff
[4]
,
but submits that this principle cannot logically be extended to
require of a defendant to work in the unknown.
[19]
During the course of his argument, Mr
Friedman
, for the
defendant submitted that this unknown is with particular reference to
what is set out in paragraph 7 of the plaintiff’s
proposed
amended particulars of claim. Countering this, Mr
White
,
for the plaintiff, submitted that the deductions and discount set out
in paragraph 7 is a matter between the plaintiff and company
E and is
of no concern of the defendant. Upon enquiring from Mr
White
whether it was so that the plaintiff’s claim against the
defendant is that which is set out in annexure “POC8”,
being the invoice from company E to the plaintiff, Mr
White
answered in the affirmative. Accordingly, the plaintiff, it
would seem to me, could easily and simply have annexed the invoice,
annexure “POC8”, without the need to have annexed the
invoices marked “POC1” to “POC7”.
[20]
However, Mr
White
was unable to explain where the deduction
amounts of €19 000 and €42 000 is reflected in
any of the documents.
He submitted that these deductions and
the 50% discount are matters of evidence.
[21]
The defendant contends that the plaintiff is obliged to furnish
precise details regarding
the invoices, being annexures “POC2”
to “POC7” as to which portions of those invoices are not
for the defendant’s
account and by failing to do so the
defendant is prejudiced and unable to respond either in terms of Rule
18(4) or in terms of
Rule 18(10).
[22]
It was further submitted that to grant the amendment sought by the
plaintiff would be to
permit the filing of an excipiable pleading in
that it would be vague and embarrassing on the basis that it lacks
particularity.
[23]
Having further considered the proposed amended particulars of claim,
it would seem at first
blush that the plaintiff has unintentionally
created a potential difficulty for itself in having attached
annexures”POC2”
to “POC7” and by having made
the allegations as set out in paragraph 7. That being said,
does it then lay in
the mouth of the defendant to complain when the
plaintiff has in fact pleaded more than was necessary?
[24]
Of importance, in my view, is that there is no dispute as to the
plaintiff’s cause
of action. At its core the plaintiff is
seeking payment of the amount company E had invoiced it with
reference to the third party.
[25]
The question is what would the defendant’s complaint have been
had the plaintiff
only attached the invoice from company E, annexure
“POC8”?
[26]
In my view, the fact that the plaintiff has pleaded extraneous matter
in paragraphs 6 and
7 of its proposed amended particulars of claim
does not disable the defendant from assessing the quantum of the
claim and thus
it is able to plead thereto.
[27]
In the result, I am not persuaded that the objection can be upheld
[28]
Accordingly, the following order shall issue:
28.1
the objection is dismissed;
28.2
the plaintiff’s particulars of claim is amended in accordance
with annexures
“C” and “D”
to the founding affidavit;
28.3
the costs of the application shall be borne by the defendant.
G
J GAJJAR
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
Applicant:
Mr G Friedman of Friedman Scheckter Attorneys,
Port Elizabeth
For
Respondent: Adv A White instructed by
Pagdens Attorneys, Port Elizabeth
[1]
The defendant did not persist with this ground of objection.
[2]
See Nasionale Aartappel Kooperasie Bpk v Price Waterhouse Coopers
Ing
2001 (2) SA 790
(T) at 798F-799J
[3]
1997 (1) SA 342
(W) at 346F-G
[4]
See Thonar v The Union and South West Africa Insurance Co Ltd
1981
(3) SA 545
(W) at 551C; Minister van Wet en Orde v Jacobs
1991
(1) SA 944
(O) at 952I-953C