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[2021] ZAECPEHC 25
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Jones-Affat v Absa Insurance and Financial Advisors (Pty) Ltd (1400/2020) [2021] ZAECPEHC 25 (20 April 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH)
Case No.: 1400/2020
Date heard: 25
March 2021
Date
delivered: 20 April 2021
In
the matter between:
GAVIN
JONES-AFFAT
Plaintiff
and
ABSA
INSURANCE AND FINANCIAL ADVISORS (PTY) LTD
Defendant
(Excipient)
JUDGMENT
ZIETSMAN
AJ:
[1]
This is an exception relating to the
interpretation of an Employment Contract entered into between the
parties. I shall refer to
the parties herein as in the action.
[2]
In his particulars of claim the Plaintiff
alleges that he was previously employed as a financial advisor by the
Defendant. It was
during or about March 2011 that they entered into
an Employment Contract. They also entered into a Ring-Fencing
Agreement during
December 2016. The Plaintiff further alleges that
the Defendant breached the terms of both the Employment Contract and
the Ring-Fencing
Agreement, and that, as a result thereof, the
Plaintiff elected to cancel the Employment Contract and accept the
Defendant’s
repudiation of the Ring-Fencing Agreement, and also
terminated the said agreement. The Plaintiff pleads that, as a
result,
he suffered damages in the amount of R6 000 000.00
for past and future loss of income.
[3]
The Defendant gave notice of exception on
the basis that the particulars of claim lack averments to sustain a
cause of action, alternatively
are vague and embarrassing. The
Plaintiff did not amend his particulars of claim and the Defendant
filed a notice of exception.
At the hearing of the matter Mr Gajjar,
who appeared on behalf of the Defendant, submitted that the Defendant
only persists with
one of the three grounds of its exception, being:
“
That
the policy which Plaintiff relies upon pursuant to clause 28 of his
contract of employment was not part of his terms and conditions
of
employment. It was not specifically incorporated and therefore
could not be breached as it was not a term and condition
of
employment.”
[4]
The
test on exception has been restated in
Hlumisa
Investment Holdings RF Ltd and Another v Kirkinis and Ohters
2020 (5) SA 419
(SCA) as follows:
[1]
“
In
deciding an exception a court must take the facts alleged in the
pleading as being correct. It is for the excipient to satisfy
the
court that the conclusion of law set out in the particulars of claim
is unsustainable. The court may uphold the exception only
if it is
satisfied that the cause of action or conclusion of law cannot be
sustained on every interpretation that can be put on
those facts.”
[5]
An
exception on the ground that it is vague and embarrassing involves a
two-fold consideration.
[2]
The
first is whether the pleading lacks particularity to the extent that
it is vague. The second is whether the vagueness causes
embarrassment
of such a nature that the excipient is prejudiced.
The
onus is on the excipient to show both vagueness amounting to
embarrassment and embarrassment amounting to serious prejudice.
[3]
[6]
I now turn to deal with the exception. The
Plaintiff pleads the material terms of the Employment Contract. For
purposes of the exception
it is necessary to quote clause 28, which
reads as follows:
“
Your
employment with Absa shall also be covered by the policies and
procedures published by Absa from time to time and you must
familiarise yourself with these policies and procedures. In
particular you must read and comply with the Absa Communications
Policy and by signing this Agreement you consent to Absa intercepting
any communication sent by you or sent to you on Absa office
systems
(including but not limited to telephone, internet, intranet,
e-mail).”
[7]
The Plaintiff pleads further, that in terms
of clause 28 of the said agreement:
“…
the
Defendant’s policy on replacement of policies and honouring of
existing relationships with fellow colleagues employed
by the
Defendant was incorporated into the Employment Contract and binding
upon the parties thereto”. (Paragraph 6 of the
Plaintiff’s
particulars of claim).
[8]
The Plaintiff submitted that clause 28 must
be read in conjunction with clause 31.1 of the Employment Contract,
which reads as follows:
“
This
Agreement, including any attached schedules, together with any
documents referred to in it, sets out the whole agreement between
the
parties relating to and cancels all previous agreements,
representations and arrangements in connection with your employment
with Absa. No variation of this Agreement is valid unless in
writing.”
[9]
The
Defendant submitted that if one has regard to paragraph 6 of the
Plaintiff’s particulars of claim, clause 28 of the Employment
Contract deals with the relationship between the Plaintiff and fellow
colleagues employed by the Defendant, and that that is the
root of
the Defendant’s complaint. Whilst that may be so, it differs
from the Defendant’s ground of exception as set
out above. It
is trite that
a
party is bound by the terms in which the exception is framed and by
the issues which it raises.
[4]
The Defendant is bound by the ground of its exception and I can
therefore not have regard to this complaint.
[10]
The Defendant’s alternative argument
was that, given the nature of the complaint, it would be appropriate
to defer consideration
of the exception to the trial and that the
question of costs be reserved for determination by the trial court.
In support of this
alternative argument, the Defendant submitted that
the Plaintiff also contends that the complaint involves a matter of
interpretation.
The Defendant referred to
Hudson
v Hudson
1927 AD 259
at 269 and
Versluis v Greenblatt
1973 (2) SA 271
(NC) at 278A-C in support of its contention that the
court has the power to defer consideration of the exception to
the trial.
[11]
In
Hudson
[5]
the plaintiff excepted to a plea filed by the first defendant, the
exception was dismissed and the plaintiff filed its replication,
the
defendant a rejoinder and the case was set down for trial. Thereafter
the trustee of the plaintiff’s insolvent estate
obtained leave
to intervene as co-defendant and to file pleadings. Four days before
the trial a plea was filed in substantially
the same terms as the
first defendant’s plea. Two days before the trial the
plaintiff’s attorney applied for a postponement
claiming the
days allowed for excepting or replying to the plea had not yet
lapsed. The postponement was refused and on the same
day the
plaintiff’s attorney filed the exception, virtually on the same
grounds as the exception against the first defendant’s
plea.
The trial court held that the exception was an abuse of the process
in that it was an attempt to defeat the judgment refusing
a
postponement of the trial. Further, that the exception was taken
mala
fide
in
order to gain time. Accordingly, the trial court refused the
postponement, struck out the exception and ordered that the action
should proceed, and upon the plaintiff failing to appear, granted
absolution from the instance. On appeal, the court held that
since
every court has the power to defer consideration of an exception to
trial, the exception had rightly been struck out. The
facts of this
matter are clearly distinguishable from the facts in
Hudson
.
[12]
In
Versluis
an
exception was taken by the plaintiff that the plea disclosed no
defence. The court held that where both parties agreed that the
underlying trust between partners was lacking, it appeared that the
trial court, in the event of the parties being unable to reach
agreement, would in any event have to decide about the rights of the
respective parties and assess their conduct. Therefore, the
trial
court would be in a much better position, after hearing the evidence,
to give a fair judgment in the matter. The court held
that the whole
matter was interwoven with the evidence which would be led at the
trial and ordered that the exception should stand
over and be
postponed to the trial. In reaching this conclusion, the court
referred to the order that was granted in the matter
of
Minerals
& Quarries (Pty) Ltd v Henckert en ‘n Ander
1967 (4) SA 77
(SWA) at 84. In
Minerals
& Quarries
the court referred to,
inter alia
,
Hudson
and
also Herbstein and Van Winsen (1966).
[13]
In
Herbstein and Van Winsen
[6]
the
authors state that:
“
The
rules do not curb the power of the court on grounds of convenience to
order an exception to stand over for decision at the trial
when, for
instance, it raises a point of law that may not arise at the trial
and may thus prove academic, or when a proper decision
on the
exception is bound up with the merits of the dispute.”
[14]
The complaint in this matter does not raise
a point of law which may not arise at the trial and may thus prove
academic. With regard
to the second instance, when a proper decision
on the exception is bound up with the merits of the dispute, the
exception cannot
be decided on the pleadings as it stand, and, in my
view, ought to be dismissed.
[15]
The
main purpose of an exception is to avoid the leading of unnecessary
evidence.
[7]
By the nature of
exception proceedings the correctness of the facts averred in the
plea must be assumed.
[8]
[16]
The Plaintiff submitted that his cause of
action is not only based on breach of his Employment Contract, but
also on breach of the
Ring-Fencing Agreement, and that exceptions are
not the appropriate procedure for dealing with issues of
interpretation of contracts.
Further, that the words ‘together
with any documents referred to in it’ in clause 31.1 of the
Employment Contract,
with the emphasis on ‘in it’, must
be interpreted to include the Policy which the Plaintiff refers to in
paragraph
6 of his particulars of claim.
[17]
“
It
is true that, generally speaking, the Court is reluctant to decide
upon exception questions concerning the interpretation of
a contract
where the whole contract is not before the Court or where it appears
from the contract itself or from the pleadings
that there may be
admissible evidence which, if placed before the Court, could
influence the Court’s decision as to the meaning
of the
contract”. (See
Dettman
v Goldfain
1975 (3) SA 385
(A) at 400.)
[18]
In
Picbel
Groep Voorsorgfondds (in Liquidation) v Somerville, and Related
Matters
2013 (5) SA 496
(SCA) the court held that:
[9]
“
In
Lewis
v Oneanate (Pty) Ltd and Another
Nicholas AJA stated that an excipient bears the burden of persuading
the court that ‘upon every interpretation which the
particulars
of claim’ and any agreement on which they rely ‘can
reasonably bear, no cause of action is disclosed’.
And, in
Sun
Packaging (Pty) Ltd v Vreulink
, Nestadt
JA confirmed that there is no hard and fast rule that the
interpretation of agreements is to be avoided on exception.
He said:
‘
As
a rule, Courts are reluctant to decide upon exception questions
concerning the interpretation of a contract. But this is where
its
meaning is uncertain. . . .
In
casu
, the
position is different. Difficulty in interpreting a document does not
necessarily imply that it is ambiguous. . . . Contracts
are not
rendered uncertain because parties disagree as to their meaning.’
”
[19]
In my view it does not appear as if the
meaning of clause 28 is uncertain, but that the question will rather
be to what extent the
provisions contained in the Policy referred to
by the Plaintiff in his particulars of claim will be applicable to
the relationship
between the parties. The very fact that the
Defendant submits that the complaint involves a matter of
interpretation leads me to
the conclusion that the exception cannot
be decided on the facts averred in the particulars of claim, which
must be assumed.
[20]
Accordingly, in my view it would not be
appropriate to grant an order that the exception be deferred to the
trial. I say so because
if the exception cannot be decided on the
pleadings as it stand since it requires evidence to be presented, the
exception ought
to be dismissed.
[21]
The Defendant neither satisfied this court
that on all possible readings of the facts that no cause of action is
made out, nor that
the particulars of claim are vague and
embarrassing to such an extent that the Defendant is prejudiced.
[22]
In the result:
The
exception is dismissed with costs.
______________________
T. Zietsman
ACTING
JUDGE OF THE HIGH COURT
Appearances:
Obo
Plaintiff: Adv.
A.C. Moorhouse, instructed by TN and Associates,
Port Elizabeth
Obo Defendant
(Excipient):
Adv. G.J. Gajjar,
instructed by Cliffe Dekker Hofmeyer
Incorporated
c/o Rushmere Noach Incorporated, Port Elizabeth
[1]
At
par [22].
[2]
Steve’s
Wrought Iron Works and Others v Nelson Mandela Metropolitan
Municipality
2020
(3) SA 535
(ECP) at par [24]; see also
Trope
v South African Reserve Bank
1992 (3) SA 208
(T) at 211; Cilliers
et
al
Herbstein
& Van Winsen: The Civil Practice of the High Courts of South
Africa (5
th
Edition, 2009) volume 1 at p 634; and the general principles as
restated in
Jowell
v Bramwell-Jones
1998 (1) SA 836
(W) at 899 – 903.
[3]
Freedom
Property Fund Limited and Another v Stavridis and Others
[2018]
3 All SA 550
(ECG) at par [22].
[4]
See
Jowell
v Bramwell-Jones and others
1998 (1) SA 836
(W) at 898F – 899B.
[5]
An
appeal to then Appellate Division.
[6]
Herbstein
and Van Winsen
supra
at
volume
1 p 645 (footnotes omitted).
[7]
Ocean
Echo Properties 327 CC and Another v Old Mutual Life Assurance
Company (South Africa) Ltd
2018
(3) SA 405
(SCA) at par [9] (footnotes omitted).
[8]
Ocean
Echo Properties
supra
also
at par [9].
[9]
At
par [26] (footnotes omitted).