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[2019] ZAECPEHC 78
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Steve's Wrought Iron Works and Others v Nelson Mandela Metropolitan Municipality (441/2019) [2019] ZAECPEHC 78; 2020 (3) SA 535 (ECP) (21 November 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case
No: 441/2019
Date
heard: 17 October 2019
Date
delivered: 21 November 2019
NOT
REPORTABLE
In
the matter between
STEVE’S
WROUGHT IRON WORKS
First Plaintiff
SOVUKA
TRADING
CC
Second Plaintiff
BRAVOPLEX
531
CC
Third Plaintiff
IMBOLA
TRADING
CC
Fourth Plaintiff
GRANDEL’S
WELDING
CC
Fifth Plaintiff
KANNEMEYER
Sixth Plaintiff
And
NELSON
MANDELA METROPOLITAN MUNICIPALITY
Excipient
JUDGMENT
Goosen
J:
[1]
The plaintiffs jointly instituted action against the defendant
alleging
the conclusion of agreements to render services to the
defendant and the breach of each such agreement. In consequence of
the alleged
breach the plaintiff’s each claim payment of the
sum of R3 000 000. 00 as damages.
[2]
Summons was issued on 25 February 2019. On 3 May 2019 the plaintiffs’
attorney delivered a notice of bar requiring the defendant to file
its plea. On 6 May 2019 the defendant filed a notice in terms
of Rule
23 asserting that the particulars of claim are vague and embarrassing
or lack averments to sustain a cause of action. The
plaintiffs did
not, within the stipulated period, remove the causes of the
complaints. Accordingly, on 30 May 2019, the defendant
filed its
exception to the plaintiffs’ particulars of claim. It is this
exception which is to be decided.
[3]
The plaintiffs oppose the exception on three grounds. Firstly, it is
contended
that the exception was filed late and only after the notice
of bar was filed. Accordingly, so it is submitted, in the absence of
an application for condonation the exception should be struck out.
[4]
The second point raised is that the exception does not comply with
Rule
6(5) inasmuch as no notice of motion and supporting affidavit
has been filed. For this reason, it is contended, the exception ought
to be struck out. The third point deals in part with the merits of
the exception. It is to the effect that the complaints are themselves
vague and embarrassing and that they could have been dealt with in a
plea. On this basis, it is submitted that the filing of an
exception
amounts to an abuse of the court process.
[5]
Before dealing with these “
defences
” to the
exception it is necessary to set out briefly the principal
allegations contained in the particulars of claim to which
exception
is taken. As indicated the plaintiffs instituted action jointly
albeit that each plaintiff apparently relies upon a separate
agreement. The cause of action is set out as follows:
“
This is an action
brought by the Plaintiffs against the defendant in that in or about
the 1
st
December 2017 and at Port Elizabeth the plaintiffs
entered into written contracts with the defendant to render various
services
to the defendant for a duration of three (3) years
commencing on the 1
st
December 2017 and expiring on the
1
st
December 2020. Subsequent to the conclusion of the
agreements and on the 20
th
March 2018, the defendant
verbally advised the plaintiffs that the written contracts have been
terminated. The plaintiffs are aggrieved
that the defendant had
unilaterally cancelled valid and binding contracts and seek redress
before the court for a declaratory order
in that the said agreements
are still valid and binding between the parties, or alternatively;
where the defendant fails to perform
in terms of the contracts the
plaintiff prays for payment of damages suffered as a result of the
unilateral and invalid breach
of the contracts and other ancillary
orders.”
[6]
What follows this is pleaded as background facts:
“
3.1 In or
about August of September 2016 and in Port Elizabeth, the defendant
published an
INVITATION TO BID
(hereinafter referred to as a
“tender”) calling upon all interested parties to bid for
the tender and the tender closed
on the 15
th
September
2016 at 11:00 AM.
3.2 The
Plaintiffs together with other bidders tendered to render services as
per invitation and submitted all
the relevant documentation in terms
of the tender document.
3.3 The
plaintiffs were awarded contracts to render services to the defendant
for a period of three (3) years
from the 1
st
December 2017
to 1
st
December 2020.
3.4 It
should be mentioned at this stage that although the services from
each of the service providers were to
be provided on ad-hoc basis
i.e. (as an when services were needed); the general norm was that
these services were rendered on regular
basis on behalf of the
defendant and the plaintiffs has rendered similar services to the
defendant before and received payments
to that effect.
3.5 As
can be seen from the attached proofs of payment received from the
defendant, a legitimate expectation to
continue receiving the above
amounts; in view of the fact that these contracts were advertised as
starting from R1 000 000.00
and above; the plaintiffs
expected to receive work value from R1 000 000.00 per annum
for the period of the contracts.
4.1 On
or about 20
th
March 2018 the defendant called a meeting
for all the successful bidders of the tenders referred to in
paragraph 3.1 supra and
in that meeting the defendant verbally
advised that all the contracts have been terminated. No reasons were
advanced for the unilateral
and verbal termination of valid and
binding agreements.
4.2 On
further engagements between the plaintiffs and the defendant
regarding reasons to the unilateral terminations
of valid and binding
contracts through its City Manager, Mr Mettler addressed a
correspondence dated 29 April 2018 which purportedly
gave “reasons”
for the unilateral and verbal termination of the contracts.
4.3
Various engagements followed from both sides with plaintiffs
demanding reasons for the unilateral and verbal
termination of
written and legally binding agreements to no avail.
4.4
Plaintiffs then consulted with their present attorneys of record and
a letter of demand was addressed to the
defendant’s
representatives Mr Bobani (the “Mayor”), Mr Feni
(Corporate Services) and Miss Nqwazi (the then Acting
City Manager),
to date no official response has been received from the defendant,
and accordingly; the plaintiffs submit that the
defendant is in
breach of the written contracts and is liable for damages calculated
at R1 000 000.00 per annum from
the 1
st
January
2018 to 1 December 2020 per plaintiff. This constitutes the minimum
value of the contracts that would have been received
from the
defendant for the duration of the terms of the contracts which is
three years.”
[7]
In its notice of exception, the defendant alleges that whereas
reference
is made to certain annexed service level agreements only
two such numbered annexures are attached. No agreement is annexed in
respect
of the sixth plaintiff who is cited only as Kannemeyer
without identifying whether the party is a natural or juristic
person.
[8]
The defendant further points out that the particulars of claim
contain
no averments as to when the agreements were concluded, where
they were concluded and by whom they were concluded. At least four
of
the plaintiffs are incorporated entities. There is no allegation as
to who represented the plaintiffs and the defendant in the
conclusion
of the agreements
[9]
Inasmuch as the plaintiffs rely upon an alleged “general norm”
that services were to be rendered on a regular basis the defendant
alleges that the annexed service level agreements relied upon,
do not
contain any such term. Nor do the annexed agreements contain terms
upon which may be founded an expectation that each plaintiff
would
receive service requests valued at R1 million per annum as alleged.
[10]
Premised upon these complaints the defendant submits that the
particulars are vague and
embarrassing, alternatively lack averments
to sustain a cause of action. I shall return to this hereunder. I
deal first with the
“defences” raised by the plaintiffs.
[11]
The first point is, upon a reading of the clear and unambiguous
language of Rules 26 and
23(1), without any merit.
[12]
Rule 26 provides that:
“
Any party who
fails to deliver a replication or subsequent pleading within the time
stated in rule 25 shall be
ipso facto
barred. If any party
fails to deliver any other pleading within the time laid down in
these Rules or within any extended time allowed
in terms thereof, any
other party may by notice served upon him require him to deliver such
pleading within five days after the
day upon which the notice is
delivered. Any party failing to deliver the pleading referred to in
the notice within the time therein
required or within such further
period as may be agreed between the parties, shall be in default of
filing such pleading, and ipso
facto barred: Provided that for the
purposes of this rule the days between 16 December and 15 January,
both inclusive shall not
be counted in the time allowed for the
delivery of any pleading.”
[13]
It is plain that a party is only
ipso facto
barred upon
failure to deliver a replication or subsequent pleading within the
time period stipulated in the Rules. In the case
of all other
pleadings the bar occurs upon lapse of the notice period provided for
in Rule 26 i.e. within five days after receipt
of the notice. If
within the five day period a pleading which the party is entitled to
file is filed, there is no bar.
[14]
Rule 23(1)
provides that an exception may be filed “
within
the period allowed for filing any subsequent pleading
”.
It requires however, the peremptory filing of a notice if it is
contended that the pleading is vague and embarrassing.
A party
is only barred from filing an exception (which is a pleading) if that
party is time-barred in accordance with Rule 26.
This principle is
well established as is to be seen from the finding in
Tyulu
and Others v Southern Insurance Association Limited
[1]
where Eksteen J (as he then was) held
[2]
“
Rule 26 provides
for an automatic bar on failure to file a replication or subsequent
pleading within the time laid down in the Rules,
but in the case of
all other pleadings, a notice of bar is required before the parties
seeking to file such pleadings can be precluded
from doing so. This
provision to my mind applies also in the case of the exception in the
present case. The decision in Stockdale
Motors v Mostert, supra, is
distinguishable from the present case in that there the exception was
taken to the plea and was
only filed after the time allowed for the
filing of a replication had elapsed and an automatic bar had come
into effect. The pleadings
had therefore in terms of the Rule been
closed and no further pleadings could properly be delivered. In the
present case no such
automatic bar exists.”
[15]
In this instance the notice of exception was delivered within the
five day period provided
in the notice of bar. That is permitted in
accordance with the authorities referred to and the plain wording of
the rules.
[16]
Plaintiffs’
counsel relied upon the judgment in
McNally
N.O v Codrun and Others
[3]
where Yekiso J held that that the filing of a notice of exception
constitutes a procedural step which would not preclude a bar
being
imposed by notice of bar. The learned judge took the view that the
notice itself is not a plea whereas the exception is a
plea. He,
however, expressed the view that the filing of an exception is a
proper response to the filing of a notice of bar. Since
only a notice
to except was filed it was set aside as an irregular step in terms of
Rule 30.
[17]
The finding
of Yekiso J runs counter to the authority of this Division. It bears
emphasis that it was specifically held in
Felix
[4]
that
a party is entitled to proceed to except in response to a notice of
bar. Thus, the filing of a notice of exception, which is
a peremptory
requirement where it is alleged the pleading is vague and
embarrassing, is permitted. This was followed in
Landmark
Mthatha (Pty) Ltd v King Sabata Dalinyebo Municipality et al: In re
African Bulk Earthworks (Pty) Ltd v Landmark Mthatha
(Pty) Ltd et
al
[5]
.
[18]
I am bound by the decisions of this Division unless I am persuaded
that they are wrong.
I am not so persuaded. To the contrary, they
are, in my view, correctly decided. The decision in
McNally
N.O.
in effect precludes a party who intends to object to a
pleading on the basis that it is vague and embarrassing from taking
such
exception upon receipt of a notice of bar unless that party had
filed such notice of intention to except within the initial period
allowed for the filing of a plea. Such construction of rule 23(1), in
my view, would defeat the purpose to be served by the process
of
excepting to a pleading.
[19]
I am
supported in this by the judgment of
Tuffsan
Investments 1088 (Pty) Ltd v Sethole and Another
[6]
where
Van der Westhuizen AJ held:
“
25. I am in
respectful agreement with the findings in this regard of Felix,
supra, and Landmark Mthatha, supra. To hold the contrary,
as in
McNally, supra, would disentitle a party after the initial period of
20 days within which to file an exception where the
pleading is vague
and embarrassing to thereafter take such an exception. Such party
would have difficulty in pleading to the vague
and embarrassing
allegations. It is trite that the very purpose of pleadings is to
crystallize the issues in dispute.
26. It follows that the
defendants were entitled to serve a notice in terms of Rule 23(1)
within the period allotted in the notice
of bar.”
[20]
In the circumstances, the plaintiffs’ first objection falls to
be rejected.
[21]
In regard to the second objection viz. that the defendant had failed
to file a notice of
motion and supporting affidavit as required by
Rule 6(5), there is no merit to the objection. Rule 23 prescribes the
form of the
exception as a pleading. An exception is not an
application to which the provisions of Rule 6 apply.
[22]
Finally, there is the plaintiffs’ answer to the merits of the
exception. In its notice
of opposition the assertion is made that the
exception itself is vague and embarrassing. This is simply not so.
The complaints
raised are quite specific. Those that relate to the
discrepancy between the pleaded cause of action and the supporting
contracts
point not only to the failure to plead the terms of the
agreements but also the absence of necessary averments to sustain the
broad
“terms” relied upon. The defendant, in these
circumstances, is correct when it states that it does not know to
what
it must plead.
[23]
In the heads of argument filed on behalf of the plaintiffs, as also
in argument before
me, counsel was content to submit merely that the
objections “are baseless” without addressing either the
substance
of the complaints or the prejudice suffered by the
defendant in having to discern for itself the foundation of the
plaintiffs’
cause of action.
[24]
An exception on the ground that a pleading is vague and embarrassing
involves consideration
in the first instance whether it lacks
particularity to the extent that it is vague. Secondly, whether the
vagueness causes embarrassment
to the extent that the excipient is
prejudiced.
[25]
A reading
of the pleaded cause of action evidences its vagueness. It is
necessary to highlight only one of several aspects raised
by the
defendant to demonstrate the embarrassment and prejudice which flows
from the manner in which the particulars are framed.
The allegation
is made that the agreements concluded with the defendant
[7]
contemplated that services be “rendered on regular basis on
behalf of the Defendant and the Plaintiffs has rendered similar
services to the Defendant be and received payments to that effect.”
[26]
However, paragraph 1 of the agreement annexed to the particulars
record that the appointment
is “
on an ad hoc (as and when)
required basis
.” It is elsewhere recorded that no work is
to be performed “
unless requested by the representative of
the [defendant] with a valid order number.
”
[27]
These terms contradict the assertion of a “
norm
”
suggesting “
regular
” services. As pointed out by
counsel for the defendant if the “
norm
” relied
upon is to be treated as a tacit term it would of necessity need to
be pleaded as such. In any event, such tacit
term would be in
conflict with the express terms of the agreement relied upon and
would be unsustainable. The prejudice which flows
from the pleading
in its present form is self-evident.
[28]
One other example suffices. The sixth plaintiff is cited as
“
Kannemeyer
”. An agreement purporting to have been
concluded between the defendant and Kannemeyer Property Developers
(Pty) Ltd is annexed
to the particulars of claim. When asked what
this had to do with the matter Mr Notyawa, for the plaintiffs,
submitted that this
referred to the sixth plaintiff. He could,
however, offer no explanation for the defective citation nor why an
amendment of the
particulars of claim would not be required before
the defendant pleaded thereto.
[29]
There are several other respects in which it is submitted that the
particulars are vague
and embarrassing. It is not necessary to
traverse them all. It is also not necessary to consider whether the
particulars contain
sufficient particularity to sustain a cause of
action. That is so because upon the examples outlined above the
defendant’s
exception must be upheld.
[30]
Mr Beyleveld SC, for the defendant, indicated that whereas his heads
of argument seek an
order striking out the plaintiffs’ claims
the proper order in the circumstances will be to uphold the exception
and grant
the plaintiffs’ leave to amend their particulars of
claim. I agree.
[31]
In the result I make the following order:
1. The
defendant’s exception is upheld.
2. The
plaintiffs are ordered, jointly and severally, to pay the costs of
the exception.
3. The
plaintiffs are granted leave to amend their particulars of claim in
accordance with the Rules within 20
(twenty) days of the date of this
order.
________________________
G.G
GOOSEN
JUDGE
OF THE HIGH COURT
Obo
the Plaintiffs:
Adv M.P.G Notyawa
Instructed
by
Simphiwe Jacobs & Associates Inc
545 Govan Mbeki
Avenue, North End, Port Elizabeth
S Jacobs
Obo
the Excipient:
Adv A. Beyleveld SC
Instructed
by
BLC Attorneys
4 Cape Road,
Centrahill, Port Elizabeth
M Charsley
[1]
1974 (3) SA 726 (E)
[2]
At 729C-E. See also Felix and Another v Nortier N.O and Others (2)
1994 (4) SA 502
(SE) at 506E where Leach J specifically held that a
defendant is entitled to file a notice of exception upon
receipt of
a notice of bar.
[3]
2012 JDR 0385 (WCC) [2012] ZAWCHC17 (19 March 2012)
[4]
See fn 2 above
[5]
2010 (3) SA 81
(CCM) at par [13]
[6]
(22826/2015) [2016] ZAGPPHC 653 (4 August 2016) at par 25 -26
[7]
In this regard it should be noted that the plaintiffs have failed to
comply with the provisions of Rule 18(6).