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[2020] ZAECPEHC 45
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CS v TS (645/2020) [2020] ZAECPEHC 45 (12 November 2020)
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Certain
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IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
CASE NO. 645/2020
Date heard: 13 August 2020
Date
delivered: 12 November 2020
In
the matter between:
C[…]
L[…] S[…]
Applicant
(Plaintiff
in the main action)
and
T[…]
I[…] S[...]
Respondent
(Defendant
in the main action)
JUDGMENT
RUGUNANAN,
J
[1]
On 19 March 2018 the parties’ marriage out
of community of property in terms of an antenuptial agreement that
excluded the
accrual system was dissolved by a decree of divorce
granted in the Regional Court, Port Elizabeth. The dissolution
incorporated
a deed of settlement concluded between them on
1 December 2017. Consequent to representations made by the
defendant and /or
his agents, which representations allegedly induced
the plaintiff to enter into the settlement agreement, the plaintiff
obtained
an order on 23 August 2019, in the Regional Court, in terms
of which several clauses incorporated in the agreement were
rescinded.
The present action in this court has been instituted by
the plaintiff on 5 March 2020, and is for delictual damages allegedly
suffered
by her as a result of the aforesaid representations.
[1]
[2]
This historical detail including the nature of the representations
and
damages allegedly suffered by the plaintiff have been pleaded in
her particulars of claim. On 7 May 2020 the defendant delivered
a
notice of exception objecting to the particulars of claim on various
grounds, further to which the plaintiff delivered a notice
of
intention to amend the particulars of claim on 9 June 2020. The
defendant has objected to the notice of intention to amend
(hereinafter “the notice”). Interlocutory to the pending
action the plaintiff (as applicant) approaches this court for
leave
to amend the particulars of claim.
THE
PRESCRIBED RATE OF INTEREST ACT
[3]
There is an initial observation regarding the
applicability of the Prescribed Rate of Interest Act
[2]
which I think summarily disposes of the defendant’s objections
to the interest component in all the heads of damages dealt
with
hereunder except for the claim relating to the maintenance for the
minor child and the claim for the cost of servicing and
maintaining a
motor vehicle (for which claims a similar objection has not been
raised).
[4]
The plaintiff contends that the various heads of damages dealt with
hereunder
constitute unliquidated debts under section 2A of the Act
and for which debts interest
a tempore morae
is claimed in the
prayers to the particulars of claim from date of demand until date of
final payment. Since no demand prior to
summons is alleged, the date
for the commencement of the calculation of
mora
interest would
be effective from date of service of summons (an observation which,
quite sensibly, is evident from a reading of
the particulars of claim
as a whole). The applicable rate of interest in terms of section 1(2)
of the Act is the rate determined
by the Minister of Justice who may
from time to time prescribe a rate by notice in the Gazette. This
initial observation, disposes
of the defendant’s main objection
that the proposed amendment neither makes reference to section 2A of
the Act nor to any
facts which entitle her to invoke the Act and that
it is improper for the plaintiff to rely thereon in her heads of
argument.
[5]
Where, as in the present case, there is no
indication in the particulars of claim and in the contemplated
amendments that
a rate of interest has been agreed on, expressly or
impliedly, and the rate is not governed by any other law, then
self-evidently
the applicable interest rate is that which is
prescribed from time to time by notice in the Gazette.
[3]
In these circumstances the formulation
[4]
of the pleading is sufficient to convey that the Act applies by
operation of the law and there can be no difficulty in the defendant
(or those representing him) determining the applicable interest rate
by recourse to the relevant Gazette.
INFLATION
ADJUSTMENTS
[6]
These adjustments affect: the claim in respect of
the minor’s maintenance (prayer 14 of the plaintiff’s
notice
[5]
),
the claim in respect of the loan to the defendant (paragraph 5.1 of
the plaintiff’s notice
[6]
),
and the claim in respect of the sale of the plaintiff’s vehicle
(paragraph 18 of the plaintiff’s notice
[7]
).
In each instance the defendant’s objection essentially is that
the plaintiff has failed to plead necessary averments to
support her
contention that the amount for each claim should be subject to the
escalation claimed, and that such failure in each
instance renders it
impossible for the defendant to calculate the
quantum
of damages being claimed.
[7]
Rule 18(4) of the Uniform Rules of Court requires
of a pleader to set out a clear and concise statement of the material
facts upon
which reliance is sought. The purpose, after all, is to
define the issues so as to enable the other party to know what case
it
has to meet. Pleadings are required to be lucid, logical and
intelligible so that a cause of action or defence appears clearly
from the factual allegations made.
[8]
What must be pleaded are facts, not evidence, and only the material
facts should be pleaded.
[9]
In this regard it is of importance to be mindful of the distinction
between
facta probanda
or primary factual allegations which a pleader must make and
facta
probantia
which are secondary allegations or
evidence upon which the pleader will rely to prove the primary
allegations.
[10]
A pleading that propounds a party’s own conclusions and
opinions instead of the material facts is defective.
[11]
[8]
The pleading of damages is regulated by the
general provision in rule 18(10) which requires that damages be set
out in such manner
as will enable the defendant reasonably to assess
the quantum thereof. A plaintiff is not required to set its claim out
in a manner
that will enable the defendant to determine whether or
not the plaintiff’s assessment of the
quantum
is correct because the defendant has a duty himself to work out what
is a reasonable assessment of the damages claimed by the
plaintiff.
[12]
[9]
I am not persuaded that there is merit in the
defendant’s objections. To uphold them would be tantamount to
either obliging
the plaintiff to plead
facta
probantia
or to
speculate in expressing her own conclusions and opinions relevant to
her measure of damages. In any event the plaintiff has
pleaded
nominal figures representing capital amounts; the methodology or
formulae for achieving their inflation adjusted threshold
are
matters, I think, over which evidence can be led and legal argument
can be advanced.
[13]
The amendments are sufficiently intelligible to communicate the
preliminary quantum of the plaintiff’s damages.
THE
REMAINING CLAIMS AFFECTED BY THE PROPOSED AMENDMENTS AND THE
OBJECTIONS RAISED:
Claim
in respect of Plaintiff’s maintenance
[10]
In prayers 1 and 2 of the particulars of claim,
the plaintiff claims payment in the amount of R308 983.41 and
interest
a tempore mora
thereon from date of demand until date of final payment. The
amendment set out in paragraph 12 the notice quantifies this amount
for the period 1 December 2017 to 1 March 2020 by reference to
annexure “POC4” to the particulars of claim. The annexure
is a schedule that offers a somewhat jagged but ready quantification
of the plaintiff’s monthly maintenance requirements
(and those
of the minor child). Relevant to prayer 2, the defendant’s main
objection is that the proposed amendment neither
makes reference to
section 2A of the Prescribed Rate of Interest Act nor to any facts
which entitle her to invoke the legislation.
[14]
This issue has already been dealt with elsewhere in this judgment and
warrants no further consideration.
Claim
in respect of minor’s maintenance
[11]
In paragraph 13 of the notice the plaintiff claims “
maintenance
payable for the minor child in the amount of R4 483.58 per
month, calculated from 1 December 2017.”
This amount
claimed as a maintenance contribution from the defendant is
calculated with reference to annexure “POC4”
to the
notice. In prayer 14 of the particulars of claim the amount claimed
as maintenance for the minor “
is to escalate yearly in
accordance with the consumer price index”
. The escalation
issue begs of no further consideration as it has been dealt with
elsewhere under the rubric of inflation adjustments.
[12]
The defendant’s remaining objection
(understood in the baldest of terms) is that the period over which
the amount of maintenance
should be paid has not been pleaded which
renders it impossible for the defendant to calculate the quantum of
this claim for want
of compliance with rule 18(10). The effect
thereof, so the argument goes, is that the particulars of claim are
rendered vague and
embarrassing; alternatively, lacking sufficient
particulars to sustain a cause of action and further alternatively,
they are irregular
for non-compliance with rule 18(10). Tritely,
where it is alleged that a pleading is vague and embarrassing the
onus
is on the party
making the allegation to show that it suffers prejudice as a result
of the offending allegations.
[15]
This issue, although mentioned in the defendant’s heads of
argument by reference to a glancing principle, was not emphatically
dealt with in argument.
[13]
It was contended by plaintiff’s counsel
that the use of the word minor implicitly conveys that the duration
or period for
which maintenance is claimed endures until the minor
attains majority at the age of 18. This has not been pertinently
pleaded (nor
has any other cut-off date). Considering however, that
it is nowhere pleaded that the minor will require maintenance beyond
that
age
[16]
,
the logical conclusion seems to favour the plaintiff especially where
it has not been pertinently contended that the defendant
is
prejudiced.
Claim
in respect of arrear maintenance for minor
[14]
Prayers 3 and 4 of the particulars of claim respectively incorporate
claims for the amount
of R121 056.66 and interest
a tempore
mora
thereon from date of demand until date of final payment. The
interest issue has been dealt with elsewhere in this judgment - it
requires no further consideration.
[15]
Paragraph 15 of the notice proffers detail that the above amount is
calculated over the
period 1 December 2017 until 1 March 2020 in
instalments of R4 483.58 per month. The defendant’s
objection is that the
intended amendment is vague and embarrassing
since no facts have been pleaded to support the allegation that the
amount claimed
was “
due and payable”
for the
minor.
[16]
In the plaintiff’s heads of argument the submission is made
that the claim for arrear
and future maintenance for the minor is
premised on the defendant’s misrepresentations (and those of
his agents). The period
1 December 2017 to 1 March 2020 over
which the claim is quantified did not extinguish the defendant’s
reciprocal duty
to provide maintenance and support for the minor - a
duty which plaintiff’s counsel correctly contended exists in
law (and
which applies to both parents of a minor child). I was not
addressed on the facts which the plaintiff ought to have pleaded to
support her allegation that the amount was “
due and
payable”
. Since it was incumbent on the defendant to have
demonstrated prejudice, which he has not done, I am not persuaded
that the objection
has any merit.
Claim
in respect of loan
[17]
At prayers 10 and 11 of the particulars of claim the plaintiff claims
an amount of “
R23 000 adjusted with inflation in accordance
with the consumer price index from date of payment until date of
divorce”
, together with “
interest a tempore mora
on the amount of R23 000 adjusted with inflation from date of demand
until date of final payment.”
These issues have been dealt
with and require no further consideration.
[18]
Omitting discursive detail contained in the plaintiff’s notice,
the claim for R23 000
is set out in paragraph 5.1 and is founded
on an inheritance received by the plaintiff and dispensed to the
defendant as a non-interest
bearing loan during 2003 and payable to
the plaintiff on demand
per
summons.
[19]
A party who relies on a contract in its pleading shall, in terms of
rule 18(6), state whether
the contract is written or oral, and when,
where and by whom it was concluded, and if the contract is written a
copy thereof or
the applicable part relied on in the pleading shall
be annexed thereto.
[20]
For the defendant, the composition of the amendment is problematic
for non-compliance with
rule 18(6) hence his objection on the basis
that the form and conclusion of the alleged loan have not been
sufficiently pleaded
in accordance with the prescripts of the
relevant sub-rule. The plaintiff’s argument that the dispensing
of money between
parties to a marriage out of community of property
amounts to a loan was not supported by any case authority. I make no
formal
pronouncement on the correctness or otherwise of this argument
but will assume in plaintiff’s favour purely for the sake of
expedience and for reasons that follow.
[21]
Although it is apparent that the detail required
by the sub-rule is wanting in the proposed amendment, non-compliance
with the sub-rule
does not mean that the loan agreement ceases or
that the plaintiff will be precluded from proving its
enforceability.
[17]
Non-compliance is not fatal and can be condoned in the absence of
prejudice to the opposite party
[18]
,
an issue not categorically and straightforwardly dealt with in
argument. In any event, I do not think that a rule of procedure
should serve as a device to deprive the plaintiff of the opportunity
to prove her claim. As has often been said, the rules exist
for the
courts, not the courts for the rules.
Claim
in respect of sale of vehicle
[22]
What is claimed here is an amount of R15 000 adjusted with inflation
in accordance with
the consumer price index from date of payment
until date of divorce plus interest
a tempore mora
from date
of demand until date of final payment (prayers 12 and 13 of the
particulars of claim). To repeat the obvious, these issues
do not
necessitate further elaboration.
[23]
The
causa
for this claim is detailed in paragraph 6.1 of the
notice of intention to amend wherein it is pleaded that:
“
11.2.4.1
The defendant sold the plaintiff’s vehicle (an asset excluded
from the defendant’s
estate as a consequence of the parties’
marriage out of community of property) for an amount of R15 000
during the course
of the parties’ marriage and he used the
amount of R15 000 to buy a new vehicle, which vehicle was registered
in the defendant’s
name alternatively in the defendant’s
business’ name, without paying any amount of the proceeds
received from the aforesaid
sale, to the plaintiff.”
[24]
In argument it was contended for the plaintiff that the amount
claimed under this head
is analogous to - and for present purposes -
ought to be treated as a claim founded on a loan - this on the
premise that the dispensing
of money between parties to a marriage
out of community of property amounts to a loan. Without seeking to
make a formal pronouncement
on the correctness or otherwise of this
argument, I am again prepared to assume in favour of the plaintiff
purely for the sake
of expedience. As such, the intended amendment is
upheld for reasons similar to those evident in the preceding
paragraphs.
Claim
in respect of replacement vehicle
[25]
This claim is implicated by paragraph 8 of the notice as read with
prayers 7 and 8 of the
particulars of claim. In the latter paragraphs
it is pleaded that the plaintiff claims payment of an amount of
R300 000 together
with interest
a tempora mora
thereon
from date of demand to date of final payment. The crux of the
defendant’s objection is that the plaintiff has failed
to plead
averments necessary to determine the rate of interest. Again, to
repeat the obvious - the interest issue has already been
dealt with.
Claim
in respect of the costs for servicing and maintenance of vehicle
[26]
Read with prayer 9 of the particulars of claim the proposed amendment
introduced at paragraph
21 of the plaintiff’s notice is set out
as follows:
“
17.9
Payment of the costs for services and maintenance of the plaintiff’s
vehicle calculated from 19 March 2018 (i.e.
the date of divorce)
until 1 March 2020 (i.e. plaintiff’s date of employment) as
part of the defendant’s maintenance
obligation to the plaintiff
as at 1 December 2017 (i.e. date of settlement) and as a consequence
of the contents of paragraph 11.2.6
supra.”
[27]
The composition of the proposed amendment attracted an objection from
the defendant for
non-compliance with rule 18(10), contending in
effect that the pleading is rendered vague and embarrassing or
irregular. The amendment
clearly conveys that the cost for services
and maintenance were incurred as a past expense for a specified
period. The plaintiff
cannot side-step her obligation to set out and
quantify her alleged damages in such a manner as will enable the
defendant reasonably
to assess the quantum thereof. In formulating
the proposed amendment there has been a clear misconception of the
sub-rule which
has culminated in a prayer for unquantified relief
that can only be described as speculative.
COSTS
[28]
A court will allow an amendment for the purpose
of ensuring a proper ventilation of the dispute between the
parties.
[19]
It may also be considered correct to allow an amendment even if the
pleading would appear to be possibly open to exception or even
if the
court is of the opinion that the question of whether or not the
pleading is excipiable is arguable.
[20]
Courts have also increasingly recognised that the rules of court and
pleadings do not exist for their own sake but to advance the
administration of justice.
[21]
This judgment is informed by these precepts particularly as I have
observed that the particulars of claim are long winded and
inelegantly formulated and so too the contemplated amendments which
renders the exercise of discerning the material integral to
the
plaintiff’s cause of action nebulous. The particulars of claim
and indeed the contemplated amendments are deficient in
several other
respects which I find unnecessary to detail seeing that these were
not the issues before this court. This brings
me to the question of
costs.
[29]
For the defendant it was argued that the amendments sought by the
plaintiff should be disallowed
and the application must be dismissed
with costs. Plaintiff’s counsel contended that the defendant
persisted with his opposition
despite having received the plaintiff’s
heads of argument.
[30]
It is considered timely to say something about
heads of argument. The plaintiff’s heads of argument (including
supplementary
heads), though industrious and helpful, were not
concise and succinct. They included statutory excerpts and lengthy
quotations
from cases. They were prepared in a manner clearly
discordant with the practice directions in this division.
[22]
Both sets of the plaintiff’s heads were paginated and secured
at the back of the indexed court papers. I was not impressed
by this.
It is a situation that is, for good reason, not catered for in the
practice directions.
[23]
I accept the explanation that this was done in error by a junior
incumbent in the office of the plaintiff’s attorneys, but
ultimately it calls for caution and scrutiny to be exercised by
seniors. My sentiments about this are a matter of record. Heads
of
argument must be filed separately and should never be attached or
secured to the court papers. To say the least, I found the
task of
navigating through the plaintiff’s heads of argument while
simultaneously cross-referencing the papers to be cumbersome
and time
consuming with resultant irritation and frustration.
[31]
As for the defendant, much of his heads of argument were a
duplication of the content of
his notice objecting to the amendments.
[32]
In the exercise of my discretion I have decided to order that each
party shall pay their
own costs relevant to the opposition to these
proceedings. The order below accommodates the amendments conceded by
the defendant
at the commencement of the proceedings.
[33]
In the result the following order issues:
(i)
The plaintiff (as applicant) is given leave to amend her particulars
of claim in accordance with her Notice of Intention to Amend dated 09
June 2020, such leave excludes the amendment sought in paragraph
21
of the said Notice;
(ii)
Each party shall pay their own costs relevant to the opposition to
the
application for leave to amend.
____________________________
M. S. RUGUNANAN
JUDGE
OF THE HIGH COURT
Appearances:
For Plaintiff (Applicant):
M. Veldsman
Instructed by Anthony Gooden Incorporated
9 Bird Street
Central
Port Elizabeth
(Ref: JAG/LM/J5500)
Tel:
041-582 5150
Email:
joanne@anthonyinc.co.za
nicky@anthonyinc.co.za
For Defendant (Respondent):
A. Moorhouse
Instructed by TN Attorneys
Smith House
137 Water Road
Walmer
Port Elizabeth
Tel: 041-363 8460
Email:
thireka@tnassociates.co.za
admin@tnassociates.co.za
This
judgment was handed down electronically by circulation to the
abovementioned legal representatives by email and release to
SAFLII.
The date and time for hand-down is deemed to be 11h00 on 12 November
2020.
[1]
In heads of argument the
plaintiff relies on AB v AB
2016 (5) SA 210
(SCA) as authority for
the proposition that negligent misrepresentations giving rise to the
conclusion of a settlement agreement
in a divorce action may result
in a claim for delictual damages suffered.
[2]
Act No. 55 of 1975, as
amended
[3]
See generally Wille’s
Principles of South African Law, Juta 9
th
ed at page 951
[4]
cf. Yannakou v Apollo Club
1974 (1) SA 614
(AD) at 623F-G where it is stated: "Hence, if
[a party] relies on a particular section of a statute, he must
either state
the number of the section and the statute he is relying
on or formulate his defence sufficiently clearly so as to indicate
that
he is relying on it."
[5]
p 24 of indexed papers
[6]
p 11 of indexed papers
[7]
p 20 of indexed papers
[8]
Trope v South African Reserve
Bank and Another
1992 (3) SA 208
(T) at 210H
[9]
Moaki v Reckitt and Colman
(Africa) Ltd and Another
1968 (3) SA 98
(A) at 102A-B
[10]
Nasionale Aartappel
Korporasie Beperk v Price Waterhouse Coopers ING en andere
2001 (2)
SA 790
(T) at 797G-I and 798C-E; Jowell v Bramwell-Jones and Others
1998 (1) SA 836
(W) at 903A-B; and Makgae v Sentraboer (Koöperatief)
Bpk
1981 (4) SA 239
(T) at 245D-E
[11]
Erasmus, Superior Court
Practice [Service 8, 2019] at D1-232A
[12]
Erasmus, Superior Court
Practice [Original Service, 2015] at D1-241
[13]
see ST v CT
[2018] 3 All SA
408
(SCA) at paragraphs [116] and [163] regarding the practical use
of an actuarial calculation
[14]
cf. Yannakou v Apollo Club
1974 (1) SA 614
(AD) at 623F-G where it is stated: "Hence, if
[a party] relies on a particular section of a statute, he must
either state
the number of the section and the statute he is relying
on or formulate his defence sufficiently clearly so as to indicate
that
he is relying on it."
[15]
Herbstein and Van Winsen,
The
Civil Practice of the High Courts of South Africa
,
5
th
ed, at 636-637
[16]
See however Bursey v Bursey
1999 (3) SA 33
(SCA) for the proposition that the duty of support
owed by a parent to a child does not terminate when the child
reaches a particular
age but continues until the child becomes
self-supporting even if that occurred after attaining majority.
[17]
compare Absa Bank Limited v
Zalvest Twenty (Pty) Ltd
2014 (2) SA 119
(WCC) at 122D-F, 122F-G,
123C-127D and 127H-128A, and for an abridgement see Erasmus,
op
cit
[Original
Service, 2015] at D1-237
[18]
Dass and Others NNO v
Lowewest Trading (Pty) Ltd
2011 (1) SA 48
(KZD) at 53B-H
[19]
See YB v SB
2016 (1) SA 47
(WCC) at 51D and the cases cited therein
[20]
YB v SB supra at 51G
[21]
YB v SB supra at 51E
[22]
see rule 8 of the Joint Rules
of Practice of the High Courts of the Eastern Cape Province.
[23]
Rule 3 of the Joint Rules
supra