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[2019] ZAECPEHC 52
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Protea Chemicals A division of the OMNIA Group (Pty) Ltd v Flexicon Africa (Pty) Ltd (CA18/2019) [2019] ZAECPEHC 52 (29 August 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
CASE NO. CA
18/2019
Date heard: 15
August 2019
Date Delivered: 29 August
2019
In
the matter between:
PROTEA
CHEMICALS
A
division of the OMNIA GROUP (PTY) LTD
Plaintiff
and
FLEXICON
AFRICA (PTY) LTD
Defendant / Excipient
JUDGMENT
RUGUNANAN,
AJ:
[1]
These are exception proceedings. The plaintiff claims from the
defendant (the excipient)
restitutionary damages in the amount of
R1 628 030, 00 against a tender for the return of certain
equipment manufactured
and delivered by the defendant to the
plaintiff. The parties are cited as companies with limited liability.
The claim arose
ex contractu
on 27 January 2015 upon the
conclusion of a written agreement between the authorised
representatives of the parties.
[2]
The salient
allegations in the particulars of claim
[1]
which incorporate by reference the “standard terms and
conditions” of the parties’ agreement attached thereto
as
annexure “POC2”, are set out hereunder:
“
7.4
In terms of clause 10 of the standard terms and conditions the
plaintiff undertakes
to notify the defendant in writing of all defect
(sic) within fifteen (15) days upon receipt of the goods.
8
The Plaintiff duly complied with all its obligations in terms
of the
agreement between the parties.
9.
On or about 7
th
of September 2015 the
Defendant delivered the equipment to the Plaintiff at the delivery
location.
10.
On or about 19
th
of January 2016 the
defendant’s authorised technicians arrived on site to assemble
and install the equipment. During the
installation process it became
apparent that the equipment had a defect, furthermore such defect
impaired the equipment’s
utility and / or effectiveness for the
purposes for which it was sold, alternatively, for which it was
intended to be used for.
11.
The defects in the equipment were present at the time of sale,
alternatively,
during the design and building of the project,
alternatively, during the assembly of the object.
12.
…
13.
The defects in the equipment were latent, in that only upon
installation of
the product would the defects be noticeable and were
not identifiable before the final assembly of the object.
14.
At all material times the Plaintiff was unaware, nor could reasonably
have know
(sic) about the defects in the equipment prior to
installation.
15.
…
16.
During or about January 2016 the Plaintiff notified the Defendant in
writing
as to the breach and notified the Defendant to remedy the
same. In spite of various attempts by the Defendant to remedy the
breach,
the equipment does not function in accordance with quoted
specifications.”
[3]
Clause 10 of the “standard terms and conditions”
mentioned in paragraph 7.4
the particulars of claim records the
following:
“
NOTICE OF
CLAIMS: Immediately upon receipt of the products, purchaser must
inspect same. All claims, including claims for alleged
defective
goods, must be made to FAL in writing within fifteen (15) days after
receipt of shipment or purchase. All claims not
made in writing and
received within the time specified above shall be deemed waived.
Purchaser expressly hereby assumes all liability
for all damages and
injury occurred before and after said time period if notice is not
made within the required time frame ...”
[4]
In paragraph 3 of its Notice of Exception dated 1 April 2019, the
defendant’s exception
is noted on the ground that the
plaintiff’s particulars of claim are vague and embarrassing.
The exception is composed along
these lines:
“
3.
3.1 In paragraph 7.4 of the
Particulars
of Claim the Plaintiff pleads that in terms of Clause 10
of the Standard Terms and Conditions, the Plaintiff undertakes to
notify
the Defendant in writing of all defects within fifteen (15)
days of receipt of the goods.
3.2
It is evident from Clause 10 of the Standard Terms and Conditions
annexed to the Particulars
of Claim that it further records that all
claims for defective goods not made within fifteen (15) days of
receipt of the goods,
shall be deemed waived.
3.3
In paragraph 9 of the Particulars of Claim the Plaintiff alleges that
it received the equipment
/ goods on 7 September 2015.
3.4
In paragraph 16 of the Particulars of Claim the plaintiff alleges
that it notified the defendant
of the breach in writing during or
about January 2016, outside the fifteen (15) day period required by
clause 10.
3.5
The plaintiff fails to allege any basis upon which the deemed waiver
in clause 10 of the
Standard Terms and Conditions would not and / or
does not, apply.
3.6
In the circumstances the … the Particulars of Claim are vague
and embarrassing in
the aforegoing respects and excipiable.”
LEGAL
PRINCIPLES
[5]
The object
of pleadings is to define issues and to enable parties to come to
trial prepared to meet each other’s case and
not be taken by
surprise.
[2]
An exception is a
legal objection to an opponent’s pleading. It complains of a
defect inherent in the pleading.
[3]
On the assumption that the facts stated in the pleading are correct,
an exception must be determined on the pleading as it stands;
and no
facts stated outside those mentioned in the pleading can be brought
into issue nor can reference be made to any other document.
[4]
[6]
In deciding
exceptions based on vagueness and embarrassment arising from a lack
of particularity, the approach is that in each case
the court has to
look at the matter from the point of view of the party who is faced
with a pleading and ask itself how is the
party to know what case it
is called upon to meet. If it appears that the pleading is vague
(i.e. it is either meaningless or capable
of more than one meaning,
or can be read in any of a number of ways) it simply means that the
reader is unable to extract a single,
clear meaning.
[5]
[7]
Where
vagueness is present, as in the abovementioned sense, the court must
undertake a quantative analysis of such embarrassment
which the
excipient can show has been caused by the vagueness complained of in
its endeavour to plead to the offending pleading.
[6]
[8]
The
onus
is on the excipient to demonstrate both vagueness amounting to
embarrassment and embarrassment amounting to prejudice, and in
applying the above principles the ultimate test as to whether or not
an exception should be upheld is whether the excipient is
prejudiced.
[7]
THE
ARGUMENTS
[9]
I turn to a consideration of the arguments presented by the parties.
Mr Nepgen who appeared
for the defendant submitted that clause 10 of
the “standard terms and conditions” imposes the
obligation on the plaintiff
immediately upon receipt of the products
(i) to inspect same, and (ii) to give notice of any defects to the
defendant (FAL) within
15 days after receipt of the goods. In the
event notice in writing is not given within the stipulated period,
the relevant clause
indicates that the claim shall be deemed waived,
and the plaintiff shall assume all liability for damages and injury
occurring
before and after the 15 day time period.
[10]
Referring to the particulars of claim where the allegation that the
plaintiff has complied with all its obligations
in terms of the
agreement appears, Mr Nepgen submitted that this allegation
contradicts the plaintiff’s further allegations
that the goods
were received on 7 September 2015 and that notice to the defendant to
remedy defects was given during January 2016.
This construction of
the particulars of claim conveys that the waiver in clause 10 of the
“standard terms and conditions”
had long taken effect.
[11]
In response, Mr White who appeared for the plaintiff submitted that
the plaintiff inspected the goods in
January 2016; it was from then
that the 15 day notification period in clause 10 started running. On
this point he submitted that
the clause had already been complied
with when the defendant’s technicians arrived on 19 January
2016; consequently waiver
had not interceded. I have difficulty with
this submission. Nowhere in the aforegoing extracts of the
particulars of claim is it
expressly alleged that “
the
plaintiff inspected the goods in January 2016”
. In this
regard the submission in my view does not pass the test (
supra
)
for extracting a single clear meaning.
[12]
In
addition, Mr White contended that the basis of the exception is
flawed since it is premised on an
in
vacuo
application of clause 10. He urged that clauses 8 and 10 of the
“standard terms and conditions” ought to be read in
conjunction with the “Lifetime Performance Guarantee”
clause in the quotation
[8]
supplied by the defendant to the plaintiff prior to the parties’
conclusion of their agreement. It was argued that the practical
application of this approach demonstrates that the contracting
parties intended that the goods
first
be installed and
then
inspected. On this approach clause 10 becomes operative only once
inspection had taken place. Mr Nepgen, correctly took issue with
this
submission, since it conflicts with the prescript that an exception
must be determined on the pleading as it stands; that
no reference
can be made to any other document, nor can facts stated outside those
mentioned in the pleading be brought into issue.
In the latter regard
the plaintiff was duty bound under the provisions of rule 18(4) of
the Uniform Rules of Court to clearly and
concisely set out the
material facts which underlie the contention put forward by Mr White.
[13]
Regard being had to the contradictory allegations in the particulars
of claim, the crux of the exception,
Mr Nepgen contended, is that the
particulars of claim evidences no allegation/s to establish any basis
upon which the deemed waiver
in clause 10 of the “standard
terms and conditions” does not apply to the plaintiff’s
claim.
[14]
The argument is not without merit. The extracts of the particulars of
claim as set out earlier in this judgment,
can be read in any of a
number of respects, namely:
(i) That
the first part of clause 10 requiring notice of defects does not
apply,
in that the defects relied upon were latent, alternatively,
that the clause could not be complied with because the defects were
latent; or,
(ii) That
having regard to the nature of the defects pleaded as latent, clause
15
should be interpreted to be applicable to patent defects only; or,
(iii) That
the provision of notice during January 2016 should be construed as
compliance
with clause 10; or
(iv) That
the deemed waiver constitutes a rebuttable presumption, which the
plaintiff
seeks to rebut for one or more of the reasons set out in
the particulars of claim.
[15]
This quantative analysis, undisputed by Mr White, patently indicates
that the particulars claim are capable
of a number of potentially
different meanings. Where the plaintiff does not, on the pleading as
it stands, identify exactly which
meaning it relies on for its case,
then the defendant may justifiably be heard to complain that it does
not know what case it has
to meet - this being occasioned by the
extent of the embarrassment and prejudice caused by the inherent
vagueness complained of.
[16]
In the result the following order issues:
(i) The
defendant’s exception as contained in paragraph 3 of its Notice
of Exception dated 1 April 2019, is upheld.
(ii) The
plaintiff is granted leave to amend its particulars of claim to
remedy
the defect, if so advised, such amendment to be effected
within thirty (30) days from date hereof.
(iii) Failing
the amendment of the particulars of claim as directed above the
defendant
is granted leave to bring an application to strike out the
plaintiff’s claim.
(iv) The
plaintiff is ordered to pay the costs of this application.
______________________________
M. S. RUGUNANAN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
the Plaintiff:
Adv.
A. N. White
Instructed by Flemix &
Associates Inc.
Port
Elizabeth
For
the Excipient (Defendant): Adv.
J.
J. Nepgen
Instructed by Goldberg &
De Villiers Incorporated
Port
Elizabeth
[1]
As amended (per Filing Notice date stamped 14 May 2019)
[2]
Trope v
South African Reserve Bank and Another
1992 (3) SA 208
(TPD) at 210 H
;
Jowell v Bramwell-Jones and Others
1998
(1) SA 836
W at 898 G-J
[3]
Erasmus, Superior Court Practice, Vol 2 at D1-293 [Service 4, 2017]
[4]
Gallagher
Group v IO Tech
2014 (2) SA 157
(GNP) at 161 D
[5]
Venter
& Others NNO v Barritt; Venter & Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
2008 (4) SA 639
(C) paragraphs [11] and [12]
[6]
Quinlan
v MacGregor
1960 (4) SA 383
(D) at 393 F
[7]
Quinlan
v MacGregor
supra
at 377 H
[8]
The quotation is dated 08 January 2015 and forms part of Annexure
POC 2 to the amended particulars of claim