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[2022] ZAECQBHC 22
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Benteler South Africa (Pty) Ltd v Morris Material Handling SA (Pty) Ltd t/a Crane Aid (3354/2021) [2022] ZAECQBHC 22 (16 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, GQEBERHA)
Case
No.: 3354/2021
Date
Heard: 5 May 2022
Date
Delivered: 16 August 2022
In
the matter between:
BENTELER
SOUTH AFRICA (PTY) LTD
Plaintiff
and
MORRIS
MATERIAL HANDLING SA (PTY) LTD t/a
CRANE
AID
Defendant
JUDGMENT
RONAASEN
AJ:
Introduction
[1]
In terms of an amended notice of exception delivered on 20 April 2022
(“the exception”) the defendant has excepted to the
particulars of claim in this action (“the particulars”)
on the basis that they are vague and embarrassing and/or that they do
not contain sufficient facts to sustain a cause of action.
[2]
The plaintiff’s claim against the defendant revolves around a
20-tonne
crane (“the crane”) which allegedly, on 10
September 2020, derailed, fell to the ground and was damaged beyond
economic
repair. It is the contention of the plaintiff that the
damage to the crane was solely the fault of the defendant and that it
is
thus entitled to hold the defendant liable for the damages it
allegedly suffered.
[3]
The plaintiff opposes the exception.
The
particulars
[4]
The plaintiff has pleaded the following underlying facts in respect
of
the crane:
4.1. the crane was
manufactured for the plaintiff during 2012 and put into operation at
its business premises
on 24 October 2012;
4.2. the
manufacturer of the crane specified that the wheels of the crane were
to comply with certain dimensions,
which dimensions would be reduced
through use and wear and tear;
4.3. in terms of the
manufacturer’s specifications the wheels of the crane were to
be replaced after a certain
reduction in their dimensions and a
visible degree of wear and tear, indicated by flange wheel indicators
which would become visible
from the wear and tear.
[5]
The plaintiff pleaded further that regulation 18 of the Driven
Machinery
Regulations, 1988, passed in terms of the
Occupational
Health and Safety Act, 85 of 1993
stipulated for certain compulsory
inspections and maintenance work that had to be undertaken
periodically in respect of the crane.
[6]
The defendant had been approved and registered since June 2005 as an
entity
qualified to undertake the servicing and inspection required
by the regulations referred to. From 2019 the plaintiff had employed
the defendant exclusively to conduct the prescribed periodic
inspections and servicing of its lifting equipment, including the
crane.
[7]
On 23 June 2020, so the plaintiff alleges, the defendant gave it a
written
quotation for the requisite six-monthly inspection of its
lifting equipment, which included the crane. The quotation was
accepted
by the plaintiff and the defendant undertook the inspection
on 13 August 2020. Both the quotation and the defendant’s
subsequent
inspection report are attached to the particulars without
any further reference to these documents.
[8]
Under a heading “THE INCIDENT” it is then alleged by the
plaintiff
as follows:
“
22. On the 10
th
of
September 2020 the 20T crane derailed and fell to the ground damaging
the crane beyond economical repair.
23. The derailment of the 20T crane
was caused by the failure of the flanges of the DRS-250 wheels. The
flanges on both the western
side wheels as well the flanges of the
east side trailing wheel of the 20T crane were broken.
24. The flange wheel indicators of
these wheels were completely worn through. These wheels were
therefore overdue for replacement.
25. It was Defendant’s duty to
check the wheel flange thickness and/or the wheel flange indicators
during the inspection service
of the 13
th
of August 2020.
Defendant failed to do so.
26. Had Defendant conducted the
inspection of the 13
th
of August 2020 in an efficient and
workmanlike manner, Defendant would have noticed that the flange wear
indicators of the wheels
were worn through and that the wheels needed
to be replaced.
27. Defendant was negligent in not
checking the flange wear indicators on these wheels and replacing the
wheels.
28. The derailment of the crane and
the subsequent damages suffered by Plaintiff was solely due to the
negligence of Defendant.”
The
exception
[9]
The defendant with reference to the above-quoted passages from the
particulars
contends in the exception that the particulars are so
vague “
as to embarrass the defendant to plead to them,
alternatively, they fail to disclose a cause of action, because the
defendant cannot
reasonably ascertain whether the plaintiff is
advancing a claim based in contract, delict, or on some other basis
”.
[10]
It is stated further that if the claim was intended to be in contract
the particulars are
inadequate as they lack averments as to when the
contract was concluded, where the contract was concluded, whether the
contract
was oral or written, who represented the parties in the
conclusion of the contract, what the material terms of the contract
were
and which of the terms were allegedly breached by the defendant.
[11]
If, on the other hand, the claim was intended to be founded in delict
the defendant argues
that insufficient facts have been averred to
sustain such a cause of action in the absence of averments as to the
existence of
a legal duty resting on the defendant, the material
facts which would support the existence of such a legal duty or that
the defendant
was in breach of a legal duty and, accordingly, acted
wrongfully.
Legal
principles
[12]
In respect of an exception to particulars of claim on the basis that
the particulars do
not disclose a cause of action the excipient has
the duty to persuade the court that upon every interpretation which
the particulars
can reasonably bear, no cause of action is disclosed.
Herbstein and Van Winsen
- The Civil Practice of the High
Courts and the Supreme Court of Appeal of South Africa, fifth
edition, page 639 and the authorities
referred to there.
[13]
The general principles relating to an exception taken on the basis
that a pleading is vague
and embarrassing, with reference to
Jowell
v Bramwell-Jones
1998 (1) SA 836
(W) at 899-903, can be
summarised as follows:
13.1. a statement which is vague is
either meaningless or it is capable of multiple meanings. It would be
embarrassing if it cannot
be gathered from the statement on what
ground of relief is relied on by the pleader;
13.2. one of the questions which must
be asked is whether an intelligible claim can be ascertained from the
pleading;
13.3. an exception that a pleading is
vague and embarrassing may only be taken where the vagueness and
embarrassment strikes at
the root of the cause of action;
13.4. furthermore, an exception that a
pleading is vague and embarrassing strikes at the formulation of the
cause of action and
not its legal validity.
[14]
It follows, therefore, that averments in a pleading which are
contradictory, and which
are not pleaded in the alternative are
patently vague and embarrassing. The court should not be left
guessing as to the actual
meaning (if any) conveyed by the pleading.
Trope v South African Reserve Bank
1992 (3) SA 208
(T) at
210-211.
[15]
Particulars of claim will be vague and embarrassing if it is not
clear whether the plaintiff
sues in contract or in delict.
Gerber
v Naude
1971 (3) SA 55
(T) at 57-58.
[16]
In an action based on a contract, the material averments that must
usually be made are
the existence of the contract, the relevant terms
of the contract and the applicability of those terms to the
particular right
forming the basis
ex contractu
of the claim.
Prins v Universiteit van Pretoria
1980 (2) SA 171
at 174 G-H.
[17]
The Appellate Division, as it was then known, in
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
at 500-501 rejected the notion that Aquilian liability
should be extended to apply to claims arising from a breach of
contractual
terms. It was held that contracting parties contemplate
that their contract should lay down the ambit of the reciprocal
rights
and obligations. There was no policy consideration which could
justify the conclusion that the law of delict could be invoked to
reinforce the law of contract.
[18]
The Supreme Court of Appeal in
Trustees, Two Oceans Aquarium Trust
v Kantey & Templer (Pty) Ltd
2006 (3) SA 138
(SCA) at [18]
held that the point underlying the decision in
Lillicrap
was
that the existence of a contractual relationship enables the parties
to regulate the relationship themselves, including provisions
as to
their respective remedies. There was accordingly “
no policy
imperative for the law to superimpose a further remedy
”.
[19]
Although a given set of facts may give rise to both contractual and
delictual claims these
claims are normally framed in the alternative.
[20]
In the context of delictual claims a plaintiff claiming pure economic
loss is obliged to
allege wrongfulness and plead the facts relied
upon to support this essential allegation. The absence of allegations
in this regard
may very well render the pleading excipiable on the
basis that no cause of action is disclosed.
Fourway Haulage v SA
National Roads Agency
2009 (2) SA150 (SCA) at [14].
[21]
In
Le Roux v Dey
2011 (3) SA 274
(CC) the Constitutional Court
at [122] confirmed that in the context of the law of delict:
21.1. the element of wrongfulness must
ultimately depend on a judicial determination of whether - assuming
of course that all the
other elements of delictual liability are
present - it would be reasonable to impose liability on a defendant
for the damages flowing
from specific conduct; and
21.2. the judicial determination of
that reasonableness would in turn depend on considerations of public
and legal policy in accordance
with constitutional norms.
[22]
In respect of wrongfulness the following principles are to be gleaned
from
Stedall and Another v Aspeling and Another
2018 (2) SA 75
(SCA) at [13]-[17]:
22.1. our courts have regularly
stressed that the fact that an act is negligent does not make it
wrongful;
22.2. a negligent omission is not
necessarily regarded as being
prima facie
wrongful;
22.3. wrongfulness must be pleaded by
a party relying on an alleged negligent omission. In particular facts
which support the contention
of wrongfulness must be pleaded in
accordance with the principle set out in paragraph 21.2, above.
[23]
On the assumption that a party has failed to perform a statutory duty
the question remains
whether the omission to do so was wrongful in
the delictual sense. The conduct is wrongful, not because of the
breach of the statutory
obligation
per se
, but because it is
reasonable in the circumstances to compensate a plaintiff for the
failure to comply with the statutory obligation.
Facts must be
pleaded as to why compensation would reasonably be payable in the
circumstances.
South African Hang and Paragliding Association and
Another v Bewick
2015 (3) SA 449
(SCA) at [23].
Discussion
and application of legal principles
[24]
Mr
du Toit
who appeared for the plaintiff submitted that its
claim was founded solely in delict. An examination of the pleadings,
however,
shows that this was not a tenable submission.
[25]
It is averred in paragraph 19 of the particulars that the plaintiff
employed the defendant
exclusively to conduct the inspection and
servicing of its lifting equipment, including the crane. It is
difficult to conceive
that the relationship which existed between the
plaintiff and the defendant was anything but contractual.
[26]
My view in this regard is enhanced by the averments in paragraphs 20
and 21 of the particulars
to the effect that on 23 June 2020 the
defendant provided the plaintiff with a written quotation for the
six-monthly inspection
of its lifting equipment including the crane.
This quotation was accepted by the plaintiff. A copy of the quotation
is annexed
to the particulars from which it is apparent that for an
agreed fee the defendant would inspect the plaintiff’s lifting
equipment
including the crane and would provide the plaintiff with an
inspection report. In terms of the quotation, which was accepted by
the plaintiff, the defendant undertook to conduct an inspection of
the lifting equipment “
in accordance with all relevant legal
requirements
” A written report in respect of the crane was
provided to the plaintiff, which is also annexed to the particulars.
[27]
Significantly no further reference is made by the plaintiff to the
annexures in the particulars.
No attempt is made to place the
documents in context by referring to relevant portions of the
documents and relating those portions
to the averments in the
particulars. I have been left to troll through the documents to
assess their relevance. This is a practice
which has often been
deprecated by our courts and is indicative of inept pleading
[28]
The abovementioned averments and the objective evidence in the form
of the annexures to
the particulars are indicative of the fact that a
contract, namely a contract of services, was concluded between the
parties relating
to the inspection of the plaintiff’s lifting
equipment including the crane, which contract was meant to regulate
their relationship
in this regard. It is difficult to conceive on
what other basis the defendant found itself on the plaintiff’s
premises on
13 August 2020 inspecting the crane than in terms of a
contract.
[29]
The averments in paragraphs 25 and 26 of the particulars that the
defendant was obliged
to check the wheel flange thickness and/or the
wheel flange wear indicators during the inspection and that the
inspection to be
conducted in a proper and workmanlike manner (a term
usually implied by law in contracts of services) appear to flow from
the contract
of services concluded between the parties.
[30]
The material terms of the contact which must have come into being,
however, are not pleaded.
Similarly the provisions of Uniform
Rule
18(6)
are not satisfied.
[31]
The only hints of a possible delictual claim appear from paragraphs
25, 27 and 28 of the
particulars where it is alleged, respectively,
that the defendant had a duty to (which duty could equally have
flowed from the
contract between the parties) and was negligent in
not checking the flange wear indicators on the wheels of the crane
and that
this negligence was the sole cause of the derailment of the
crane and the plaintiff’s resultant damages.
[32]
This amounts to an effort to extend Aquilian liability to what on the
pleadings appears
to be a claim for breach of contract, contrary to
the authority referred to above and in circumstances where the
relationship between
the parties and the remedies available to them
would be governed by the terms of their contract in terms of which
the defendant
undertook to conduct the inspection in terms of legal
requirements.
[33]
In my view, furthermore, the particulars lack averments to sustain a
cause of action in
contract and do not disclose an intelligible
claim, as:
33.1. although the existence of a
contract emerges from the particulars, the material terms of the
contract have not been pleaded;
33.2. the manner in which those terms
have been breached by the defendant have, similarly, not been
pleaded;
33.3. the damages which the plaintiff
seeks to claim are special damages. The particulars are devoid of
averments as to why the
damages claimed were within the contemplation
of the parties in the event of a breach of the contract by the
defendant.
[34]
The particulars are indeed vague and embarrassing as it is uncertain
whether the plaintiff’s
claim is founded in contract or delict.
Equally no intelligible claim is disclosed. As stated, the
particulars initially use the
language of contract, with reference to
a quotation by the defendant which was accepted by the plaintiff. The
subsequent use of
the language of delict in attributing the alleged
damages solely to the negligence of the defendant is irreconcilable
with the
preceding averments which point to the conclusion of a
contract. Claims in contract in delict have not been framed in the
alternative.
Thus, I am unable to find in the particulars the
lucidity and logic contended for by the plaintiff. The complaint goes
to the root
of the claim. The defendant is therefore clearly
embarrassed and will not be in a position to plead meaningfully to
the particulars.
[35]
Even if I am incorrect in the views I have expressed above, and for
the reasons that follow
I am not persuaded that the particulars
contain sufficient averments to sustain a cause of action in delict.
[36]
First, I am unable to discern from the particulars a statutory duty,
which would rest on
the defendant, and which could form the basis of
a delictual claim. The plaintiff, at best, makes oblique reference to
certain
regulations which are no longer in force. It does not plead,
in terms, the statutory obligation, if any, in respect of lifting
equipment placed on the defendant.
[37]
The Driven Machinery Regulations applicable in this instance are
those promulgated in terms
of Government Notice R. 527 on 19 June
2015 in terms of which the regulations referred to in the particulars
were repealed.
[38]
Regulation 18 of the 2015 regulations, which deals with lifting
equipment, places the statutory
obligations in respect of the
inspection and maintenance of lifting equipment squarely on the
shoulders of the plaintiff, the user
of the equipment. Regulation
18(5) places an obligation on the plaintiff, as user of the
equipment, to employ a qualified inspector
to conduct the periodic
inspections required by the regulations.
[39]
Second, paragraph 25 of the particulars makes the averment that it
was the defendant’s
duty to “
check the wheel flange
thickness and/or the wheel flange wear indicators during the
inspection of 13 August 2020
.” It is not pleaded whether
this duty allegedly breached by the defendant:
39.1. is a statutory duty arising from
the regulations or any other statutory provision;
39.2. arises at common law. No factual
or legal basis is pleaded from which the alleged duty can be
discerned; or
39.3. arose contractually.
[40]
No allegation is made in the particulars that the defendant acted
wrongfully, nor are any
facts pleaded why, in the circumstances of
this matter, it would be reasonable to impose liability on the
defendant for the damages
allegedly flowing from its conduct.
Conclusion
[41]
I am thus satisfied that, for the reasons advanced above, the
exception should be upheld,
as the particulars:
41.1. do not disclose a cause of
action in contract or in delict; and
41.2. are vague and embarrassing.
Costs
[42]
There is no reason why, in this instance, the usual rule that costs
follow the result should
not apply.
Order
[43]
I accordingly make the following order:
1.
The exception is upheld.
2.
The plaintiff is given leave to amend the particulars of
claim, with notice of the proposed amendment to be given in terms of
the
Uniform Rules within 20 days of the date of this order.
3.
Failing the delivery of a notice of amendment as directed, the
defendant is given leave to apply to have the plaintiff’s claim
struck out.
4.
The plaintiff will pay the defendant’s costs of the
exception.
O
H RONAASEN
ACTING
JUDGE OF THE HIGH COURT
Appearances:
For
plaintiff:
Adv P Du Toit instructed
by Joubert Galpin & Searle, Gqeberha
For Defendant:
Adv KD Williams instructed Everinghams Attorneys, Cape
Town c/o
Troskie Inc., Gqeberha