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[2023] ZAFSHC 134
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Tourvest Travel Services v Department Of Treasury, Free State Province and Others (2624/2020) [2023] ZAFSHC 134 (3 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
2624/2020
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
TOURVEST
TRAVEL SERVICES
Plaintiff
[A
DIVISION OF TOURVEST HOLDINGS (PTY) LTD]
and
DEPARTMENT
OF TREASURY, FREE STATE PROVINCE
First
Defendant
MEC
FOR FINANCE, FREE STATE PROVINCE
Second
Defendant
HOD:
PROVINCIAL TREASURY, FREE STATE PROVINCE
Third
Defendant
CORAM:
CRONJÉ,
AJ
HEARD
ON:
28
APRIL 2023
JUDGMENT
BY:
CRONJÉ,
AJ
DELIVERED
ON:
3
MAY 2023
This
judgment was handed down electronically by circulation to the
parties’ representatives by email, and release to SAFLII.
The
date and time for hand-down is deemed to be 14h40 on 3 May 2023.
[1]
The Plaintiff instituted action against the Defendants wherein it
claims R1 107 109.20 for services
rendered. When it amended
its particulars of claim, the Defendants filed a Notice in terms of
Rule 23(1) of the Uniform Rules of
Court stating that the Plaintiff’s
particulars of claim do not disclose a cause of action or are vague
and embarrassing.
[2]
The Plaintiff did not address the objections and the Defendants
thereafter filed an exception.
I
THE TEST ON EXCEPTION
[3]
An exception that a pleading is vague and embarrassing strikes at the
formulation
of the cause of action
and
its legal validity
.
It is not directed at a particular paragraph within a cause of action
but at the cause of action as a whole, which must be demonstrated
to
be vague and embarrassing.
[1]
[4]
It has to go to the heart of the claim and the embarrassment must be
to the extent that the defendant does
not know the claim he has to
meet. Vagueness would invariably be caused by a defect for
incompleteness
in the formulation
and is therefore not limited to an absence of the necessary
allegations but also extends to the way in which it is
formulated
.
An exception will not be allowed, even if it is vague and
embarrassing, unless the excipient will be seriously prejudiced if
compelled to plead against which the objection lies.
[2]
II
FIRST GROUND OF EXCEPTION
[5]
The first ground of exception is aimed at paragraph 6 of the
particulars of claim that reads:
“
6.
During or about the period of 1 February 2015 to 30 March 2015, and
at Bloemfontein, the Plaintiff, duly represented by
Ms Shereen
Morolo, and the First Defendant, duly represented by Mr MNG Mahlatsi,
in his capacity as Chief Executive Officer of
the First Defendant
(‘the Department’), concluded
a partly written,
and partly oral agreement for the provision of travel agency services
(‘the agreement’).
” [my emphasis]
[6]
The written part of the agreement is a Service Level Agreement
(“SLA”) signed by the representative
of the Free State
Provincial Treasury on 5 February 2015. The Plaintiff signed it on 10
February 2015.
[7]
The Plaintiff did not plead any terms of an alleged oral agreement.
There is no information on this part of
the agreement in the
particulars of claim at all.
[8]
In
Venter
and Others NNO v. Barritt Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
,
[3]
it was held:
“
Generally,
the information in a declaration or particulars of claim need only be
sufficient
for the defendants to plead thereto.
The
exception stage is not the time for the defendants [sic] to complain
that he does not have enough information to prepare for
trial or may
be taken by surprise at the trial
. That comes later in the (often
long and cumbersome) journey to the doors of the court, after, inter
alia, discovery of documents
and requests for trial particulars had
been made.” [my emphasis]
[9]
The particulars of claim is therefore vague and embarrassing and the
first ground of the exception is upheld.
III
SECOND GROUND OF EXCEPTION
[10]
The second ground of exception is that the Plaintiff fails to aver a
date on which the oral agreement was concluded,
where it was
concluded, and what the material terms and conditions thereof was.
[11]
Paragraph 6 of the particulars of claim states that the agreement was
concluded during or about 1 February 2015 to 30
March 2015 at
Bloemfontein.
[12]
Notwithstanding that the terms were not pleaded, which is covered by
the first ground of exception, there are references
to time and
place.
[13]
This ground of exception therefore fails.
IV
THIRD AND FOURTH GROUNDS OF EXCEPTION
[14]
The Defendants’ objection is that the terms and conditions in
annexures “POC1.3” and “POC1.5”
are different
from those in the SLA, and were signed prior to the date on which the
SLA became binding. They rely on Clause 10.4
of the SLA that reads:
“
This
Agreement renders all contracts or agreements that previously might
have been entered into by the parties in relation to Bid
No.
FSPT007/13/14, null and void and to be of no force and effect.
”
[15]
Clause 6.1 of the SLA provides that the Service User shall effect
payment to the Plaintiff. It is common cause that twelve
provincial
government departments are the Service Users.
[16]
In Annexure “POC1.3”, Mr Mahlatsi, in his capacity as
Chief Executive Officer of the First Defendant,
accepts
the
Bid of the Plaintiff “
dated 5 February 2015 for rendering of
services indicated in the document and/or further specified in the
annexures”
. In paragraph 6 of “POC1.3”, Mr
Mahlatsi states:
“
I
undertake to make payment for the services rendered in accordance
with the terms and conditions of the contract, within thirty
(30)
days after receipt of an invoice.
”
[17]
In the table under paragraph 6, the description of the services was
formulated as: “
FSPT007/13/14: Supply and Delivery of Travel
Agency services to all Provincial Departments in the Free State
Provincial Government
”. Mr Mahlatsi confirmed that he was
duly authorized to sign the contract. It was signed at Bloemfontein
on 5 February 2015
and an official stamp of the Department confirms
the date. Annexure “POC1.5” contains the same provisions.
The dates
in these documents preceded 10 February 2015, when the SLA
came into force.
[18]
Mr MJ Merabe, for the Defendants, argued that clause 4.2 and clause
10.4 of the SLA makes it clear that no contracts
previously concluded
or entered into between the parties shall be binding. As annexures
“POC1.3” and “POC1.5”
are dated before 10
February 2015, they are not binding. The obligation to make payment
was not that of Treasury but the Service
Users.
[19]
Mr M Sethaba, for the Plaintiff, argued that although the SLA was
signed by the Plaintiff on 10 February 2015, it cannot,
on a plain
reading of the amended particulars of claim be stated that annexures
“POC1.3” and “POC1.5” are
null and void. He
argues that the Defendants will not be without remedy and that they
may still ask for further particulars.
[20]
I agree with Mr Merabe that the SLA, on its terms, only commenced on
10 February 2015. Clause 3 of the SLA, however,
provides that the
agreement is governed by and subject to the provisions of the bid
documents and the SLA is concluded within the
framework of the bid
document. It also provides that in case of conflict between the SLA
and the bid documents, it should be endeavoured
to read the two
documents together, failing which the provisions of the bid documents
prevail, unless specifically stated otherwise.
[21]
The bid document was not appended to the particulars of claim and the
Defendants did not take issue with this. Reading
the pleadings as a
whole, I cannot find that the Defendants do not know what case they
have to meet or that they may be surprised
at trial.
[22]
A Court should be mindful that evidence can be led which can disclose
a cause of action. In LAWSA
[4]
it is stated:
”
A
pleading is only excipiable on the basis that no possible evidence
led on the pleadings can disclose a cause of action or
defence. Causes
of action are not in the first instance
dependent on questions of law. They require the application of legal
principle to a particular
factual matrix. The test on exception is
whether on all possible readings of the facts no cause of action is
made out. It
is for the excipient to satisfy the court that the
conclusion of law for which the plaintiff contends cannot be
supported upon
every interpretation that can be put upon the facts.”
[23]
In
Pretorius
and Another v Transport Pension Fund and Others
,
[5]
Froneman J summarised the process for assessing an exception as
follows:
“
In
deciding an exception a court must accept all allegations of the fact
made in the particulars of claim as true; may not have
regard to any
other extraneous facts or documents; and may uphold the exception to
the pleading only when excipient has satisfied
the court that the
cause of action or conclusion of law in the pleading cannot be
supported on every interpretation that can be
put on the facts.”
[24]
It may be required from a Court who hears the case to interpret the
documents to find whether the annexures are affected
by clause 10.4
of the SLA. Courts are reluctant to interpret contracts at the
exception stage. In
Picbel
Groep Voorsorgfonds (in liquidation) v Somerville and other related
matters
[6]
the SCA held:
“
[26]
It is necessary first to say something about the proper approach to
issues such as these on exception. In Lewis v Oneanate
(Pty) Ltd and
another
[7]
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
[8]
,
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.”
and:
[39]…
In Dettmann v Goldfain and another
[9]
,
this Court stated that courts are, in some instances, reluctant to
“decide upon exception questions concerning the interpretation
of a contract”. Those circumstances are, first, where the
entire contract is not before the court; and secondly, where it
appears from the contract or 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”, provided that this possibility is “something
more than a notional or remote one”.”
[25]
In “POC1.3” and “POC1.5”, Mr Mahlatsi refers
to the Plaintiff’s offer of 5 February 2015
and signed the
annexures and the SLA on 5 February 2015. There are, on the papers,
at this stage of the enquiry sufficient averments.
[26]
I conclude that the particulars of claim, read with the annexures, is
not vague or embarrassing to the extent that the
Defendants will be
prejudiced in pleading, nor that no cause of action is pleaded.
[27]
I, therefore, find no substance in
these grounds of exception.
V
COSTS
[28]
The Defendants were successful in respect of the first ground and,
although unsuccessful on the other grounds, should
be entitled to
their costs.
ORDER:
I
make the following orders:
1.
The Defendants’ exception in respect of the first ground of
exception is upheld.
2.
The exceptions in grounds 2, 3 and 4 is dismissed.
3.
Leave is granted to the Plaintiff to amend the particulars of claim
within 15 days of this order.
4.
Plaintiff pays the costs of the exception.
P
R CRONJé, AJ
On
behalf of the Plaintiff: Adv.
M Sethaba
Instructed
by: Cliffe
Dekker Hofmeyer
McIntyre
Van der Post Attorneys
BLOEMFONTEIN
On
behalf of the Defendants: Adv
MJ Merabe
Instructed
by:
State
Attorney
BLOEMFONTEIN
[1]
Inzinger v Hofmeyer and others
(7575/2010)
[20101] ZAGPJHC 104 (4 November 2010) at paras 4 and 5
[2]
Jowell v Bramwell-Jones and Others
1998
(1) SA 83
(W) at 905 E-H
[3]
2008
(4) SA 639 (C) at para 14;
Meechan
and Another v VGA Chartered Accountants Partnership t/a PKF (VGA)
Chartered Accountants [2020] 2 All SA 510 (GJ); Du Toit
NO and
Others v Steinhoff International Holdings (Pty) Limited and Others;
Jacobus de Vos du Toit NO and Others v Jooste (16244/2018;
47916/2019) [2019] ZAWCHC 129; [2020] 1 All SA 142 (WCC) (30
September 2019) para 27 - 34
[4]
The
Law of South Africa, Third Edition, Volume 4 -para 342; See also:
South
African National Parks v Ras
2002
(2) SA 537
at 541J – 542A
[5]
2018
ZACC 10
at para [15]
[6]
[2013] JOL 30247 (SCA); [2013] ZASCA 24
[7]
Lewis v Oneanate (Pty) Ltd and another [1992] 2 All SA 488 (1992 (4)
SA 811) (A
[8]
Sun Packaging (Pty) Ltd v Vreulink [1998] JOL 355 (1996 (4) SA 176)
(A)
[9]
Dettmann v Goldfain
1975 (3) SA 385
(A) at 400A–B [also
reported at
[1975] 3 All SA 430
(A) – Ed].