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[2020] ZAECPEHC 38
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Barnard and Another v de Klerk (2015/2019) [2020] ZAECPEHC 38 (22 October 2020)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE
NO. 2015/2019
Date
heard: 13 August 2020
Date
delivered: 22 October 2020
In
the matter between:
TERTIUS
BARNARD
First
Plaintiff
DEIDRE
BARNARD
Second Plaintiff
and
EON
DE KLERK
Defendant
JUDGMENT
RUGUNANAN,
J
[1]
During August 2017 the defendant (acting
through a duly appointed agent) sold to the plaintiffs a fixed
residential property located
in Despatch. The property was, in terms
of a written agreement incorporating a
voetstoots
clause, sold for an amount of R1 150 000. As at 1 March
2018 and in accordance with their contractual obligations
the
plaintiffs paid a total amount of R268 575, 71 being instalments for
the purchase price.
[2]
The
plaintiffs instituted action against the defendant. A
perusal
of the particulars of claim indicates that there are two distinct
components to their claim. The first
is
the claim for cancellation of the agreement
due
to latent defects that were discovered in the property during or
about March 2018
and
restitution of the amount of R268 575, 71. The second, as an
alternative, is for restitution of that amount on the basis that
the
defendant is not entitled to retain it as
rouwkoop
under the Conventional Penalties Act.
[1]
What follows hereunder bears relevance only to the first component
since the second is immaterial to these proceedings.
[3]
The present dispute between the parties arises from an exception
noted
by the defendant against the plaintiffs’ particulars of
claim – the complaint being that that it lacks averments to
sustain a cause of action and that it is vague and embarrassing.
[4]
The particulars of claim incorporates the
following allegations (quoting only those paragraphs at the
substratum of the defendant’s
exception/s):
“
8.4
In terms of clause 4.1 of the contract, the defendant warranted that
there were no latent defects in
the property known to him and that
save for this, the property was sold
voetstoots
.”
…
“
10.
It was an implied term of the contract that the property will be free
of latent defects and fit
to be used as a residential property.”
11.
On or about March 2018, the plaintiffs’ discovered the
following latent defects in
the property, in that:
11.1
The foundation of the house was sinking; the gap between the floor
and the skirting was growing, which
indicated a severe problem with
the foundation of the property.
11.2
Multiple cracks in the external and internal walls of the property
opened up and became visible, which
cracks penetrated to the wall
thickness.
11.3
A significant part of the building on the property was built on
unstable fill.
11.4
The property required extensive remedial work in order to prevent
further structural damage and to
render it fit for purpose.”
[5]
Regarding paragraph 10, the defendant’s complaint is that it is
vague and embarrassing
and prejudicial because:
(i)
the allegation can only be implied by operation of the law which the
plaintiffs have not pleaded; and
(ii)
the allegation conflicts with the
voetstoots
clause expressly
pleaded in paragraph 8.4.
[6]
Regarding
paragraph 11, the complaint is that it lacks averments to sustain a
cause of action, alternatively it is vague and embarrassing.
The
complaint is based on the contention that an ordinary interpretation
of the alleged latent defects suggests that they are patent
defects -
and such defects are not covered by a
voetstoots
clause particularly where the plaintiffs inspected
[2]
the property prior to its purchase.
APPLICABLE
LEGAL PRINCIPLES
[7]
As a
general rule pleadings must be lucid, logical and intelligible.
[3]
They serve the purpose of bringing clearly to the notice of the court
and to the parties in an action the issues upon which reliance
is to
be placed. This objective can only be attained when parties state
their case with precision, the degree of which depends
on the
circumstances of each case.
[4]
Rule 18(4) of the Uniform Rules of Court serves as a guideline for
the careful drafting of a pleading to achieve this objective.
The
rule requires that every pleading “shall contain a clear and
concise statement of the material facts upon which the pleader
relies
for his claim … with sufficient particularity to enable the
opposite party to reply thereto.”
[8]
The
approach to be adopted to an exception that a pleading is vague and
embarrassing, is that the
onus
is on the excipient to show vagueness amounting to embarrassment and
embarrassment amounting to prejudice. A pleading is vague
if it is
either meaningless or capable of more than one meaning; it is
embarrassing if it cannot be gathered from it what ground
is relied
on by the pleader.
[5]
An
excipient who alleges that a summons does not disclose a cause of
action must establish that, upon any construction of the particulars
of claim, no cause of action is disclosed.
[6]
In considering an exception that a pleading does not sustain a cause
of action, the court will accept, as true, the allegations
pleaded by
the plaintiff to assess whether they disclose a cause of action.
[9]
In
Living Hands (Pty) Ltd and Another v Ditz and Others
,
[7]
the court set out an overview of the applicable general principles
relating to exceptions as distilled from case law, as follows:
(i)
The object of an exception is not to embarrass one’s opponent
or to take advantage of a technical flaw, but to dispose of the case
or a portion thereof in an expeditious manner, or to protect
oneself
against an embarrassment which is so serious as to merit the costs
even of an exception.
(ii)
The purpose of an exception is to raise a substantive question of law
which may have the effect of settling the dispute between the
parties. If the exception is not taken for that purpose, an excipient
should make out a very clear case before it would be allowed to
succeed.
(iii)
An over
technical approach should be avoided for the reason that it destroys
the usefulness of the exception procedure, which is
to weed out cases
without legal merit.
[8]
(iv)
Pleadings
must be read as a whole and an exception cannot be taken to a
paragraph or a part of a pleading that is not self-contained.
[9]
(v)
Minor blemishes and uncritical embarrassments caused by a pleading
can and should
be cured by further particulars.
[10]
Reverting
to the first component of the plaintiffs’ claim, a purchaser
may invoke the aedilitian remedies, in particular the
actio
redhibitoria
,
for the restitution
[10]
of
performance as a result of the supply of a latently defective
merx
.
This remedy arises from the residual obligation imposed on the seller
“by operation of law” as opposed to the operation
of the
contract between the parties not to sell goods that are
defective.
[11]
This remedy
would also, in my view, apply to contracts incorporating a
voetstoots
clause
in respect of defects known to the seller but not disclosed.
[11]
The
purchaser must plead and prove: (i) that a latent defect of which he
was unaware
[12]
and not
visible upon inspection,
[13]
existed at the time of the sale; and (ii) that the defect was
sufficiently material to justify redhibition (in other words
that it
was of such a nature that the purchaser would not have concluded the
sale had he been aware of it or at least that he would
not have
concluded the sale on the terms that he did
[14]
).
[12]
It
is within the above context that the defendant’s exception to
paragraphs 10 and 11 of the particulars of claim must be
examined.
Concerning paragraph 10 the defendant’s essential complaints
are that an implied term arises by operation of the
law which the
plaintiffs’ have not pleaded; and that the implied term
conflicts with the express provision of the property
having been sold
voetstoots
.
[15]
Importing the general principles distilled from
Living
Hands
supra
,
I think the approach adopted by the defendant is over-technical; it
borders on pedantry and seeks to overemphasise precise formalistic
requirements
[16]
on the pretext of vagueness and embarrassment. Looking at the
particulars of claim as a whole, all the necessary material
allegations
to sustain a cause of action based on
actio
redhibitoria
are alleged. Plainly, that is the plaintiffs’ case and they
have pleaded it with reasonable distinctness - the defendant
is not
entitled to a framework like a crossword puzzle in which every
interval can be filled by logical deduction. The defendant
has not
demonstrated that he is embarrassed or prejudiced. In point, the
issue of prejudice was not pertinently raised in the defendant’s
heads of argument nor was it persuasively contended for.
[13]
Moving
onto the second exception, the complaint is that an interpretation of
the latent defects pleaded in paragraph 11 of the particulars
of
claim comprehends that they are patent defects, hence the vagueness
and embarrassment. I doubt if the complaint is sound. The
defendant
will not be embarrassed or prejudiced if he is compelled to plead. He
could either deny that there were latent defects
in the property, or
admit that the defects pleaded were visible upon inspection of the
property and are therefore covered by the
voetstoots
clause. A defect is latent when it was not visible or discoverable
upon inspection of the
res
vendita
.
[17]
In the matrix of facts pleaded to support the cause of action on the
actio
redhibitoria,
the
plaintiffs have specifically pleaded that the defects were latent
since they were not visible on inspection of the property,
that they
were material, and the property would not have been purchased had the
plaintiffs known of the existence of the latent
defects prior to the
conclusion of the agreement.
[18]
It offers no advantage for the defendant to contend
[19]
that a purchaser who has had opportunity to inspect property before
buying it, and nevertheless buys it with its patent defects,
will
have no recourse against the seller. This contention is counteracted
by assuming the correctness of the allegations in the
particulars of
claim.
[14]
In support of my view on both exceptions, I endorse the following
sentiments expressed
in t
he case of
MN
v AJ
2013 (3) SA 26
(WCC)
at paragraph [26]:
"While
pleadings must be drafted carefully a court should not read
pedantically nor should it overemphasize precise formalistic
requirements; the substance of the allegations should be properly
considered.”
[15]
In the result the following order is made:
“
The
exceptions are dismissed with costs.”
____________________________
M. S. RUGUNANAN
JUDGE
OF THE HIGH COURT
Appearances:
For the Defendant /
Excipient: Adv. L. Ellis
Instructed by Lessing,
Heyns, Keyter & Van Der Bank Inc.
Uitenhage
(Ref: Mrs Van Der
Bank/THH/D3460)
Tel: 041-991 1301
Email:
wilmaevdb@gmail.com
litigation@lessingheyns.co.za
For the Plaintiff:
Adv. G. Appels
Instructed by Claude
Smith Attorneys
(Ref: Mr. C.
Smith/evw/B898)
c/o Howard Collen
Attorneys
Port Elizabeth
Tel: 041-922 0338
Email:
claude@curtlaw.co.za
esther@curtlaw.co.za
This
judgment was handed down electronically by circulation to the
parties’ legal representatives by email and release on
the
SAFLII website. The date and time for hand-down is deemed to be 10h30
on 22 October 2020.
[1]
In
terms of section 4 of the Conventional Penalties Act, 1962 (Act No.
15 of 1962)
[2]
vide
annexure
TB2 to the particulars of claim
[3]
Trope
v South African Reserve Bank and Another
1992 (3) SA 208
(T) at 210H
[4]
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94
(AD) at
107C-E
[5]
Lockhat
and Others v Minister of the Interior
1960 (3) SA 765(D)
at 777B-H
[6]
Fairoaks
Investment Holdings (Pty) Ltd and Another v Olivier and Others
[2008] ZASCA 41
;
2008
(4) SA 302
(SCA) at paragraph
[12]
[7]
2013
(2) SA 368
(GSJ) at paragraph [15] and see generally
Barclays
Bank International Ltd v African Diamond Exporters (Pty) Ltd (2)
1976 (1) SA 100 (W)
[8]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006 (1) SA 461
(SCA) at paragraph [3]
[9]
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
(W) at 902J
[10]
i.e.
the restoration of both parties to their original positions insofar
as this is possible – see Kerr,
The
Law of Sale and Lease
,
3
rd
ed, LexisNexis, p113
[11]
Phame
(Pty) Ltd v Paizes
1973 (3) SA 397
(AD) at 416H
;
Kondile
v Nothnagel NO (49891/2016) [2018] ZAGPPHC 858 (19 August 2018) at
paragraph [34]
[12]
Cullen
v Zuidema 1951 (3) SA 817 (C)
[13]
Holmdene
Brickworks (Pty) Ltd v Roberts Construction Co. Ltd
1977 (3) SA 670
(AD) at 684A
[14]
Vousvoukis
v Queen Ace CC t/a Ace Motors
2016 (3) SA 188
(ECG) at paragraphs
[115]-[121]
[15]
In
heads of argument the defendant relies on the following cases
Sishen
Hotel (Edms) Bpk v SA Yster & Staal Industriele Korp Bpk
1987
(2) SA 932
(AD) at 948-949; Roberts Construction Co. Ltd v Dominion
Earthworks (Pty) Ltd and Another 1968 (3) 255 (AD)
;
and
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(AD) at 531D-H
[16]
MN
v AJ
2013 (3) SA 26
(WCC), paragraph [24]
and
Suid
Afrikaans Onderlinge Brand en Algemene Versekerings Maatskappy Bpk v
Van der Berg en Andere
1976 (1) SA 602
(AD) at 607E
[17]
See
Holmdene
Brickworks v Roberts Construction Co Ltd
1977 (3) SA 670
(AD)
at 683H-684A
where the following is stated: "broadly speaking in this
context a defect may be described as an abnormal quality or
attribute
which destroys or substantially impairs the utility or
effectiveness of the
res
vendita
for the purpose for which it has been sold off for which it is
commonly used…
such
a defect is latent when it is not visible or discoverable upon an
inspection of the
res
vendita.
"
(My own underlining).
[18]
Particulars
of claim, paragraph 12
[19]
presumably
relying on Annexure TB2 of the particulars of claim