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[2023] ZAFSHC 179
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NTSU Building (Pty) Ltd v Member of the Executive Council of the Department of Human Settlements, Free State Province (4946/2013) [2023] ZAFSHC 179 (16 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4946/2013
REPORTABLE: YES/NO
OF
INTEREST TO OTHER JUDGES: YES/NO
CIRCULATE
TO MAGISTRATES: YES/NO
In
the matter between:
NTSU
BUILDING
(PTY)LTD
Excipient
and
THE
MEMBER OF THE EXECUTIVE
COUNCIL
OF THE DEPARTMENT OF
HUMAN
SETTLEMENTS,
FREE
STATE PROVINCE
Respondent
In
re:
THE
MEMBER OF THE EXECUTIVE
COUNCIL
OF THE DEPARTMENT OF
HUMAN
SETTLEMENTS,
FREE
STATE PROVINCE
Plaintiff
and
NTSU
BUILDING (PTY)LTD
1
st
Defendant
CITRA
SHINE TRADING 606 CC
2
nd
Defendant
SABELE
BUILDING
CONSTRUCTION
CC
3
rd
Defendant
MAHLAHLELI
CONSTRUCTION CC
4
th
Defendant
CLASSICAL
ORIENTAL TRADING 500 CC
5
th
Defendant
TSHENOLELO
BUSINESS ENTERPRISE CC
6
th
Defendant
NTLOLANE
CONSTRUCTION CC
7
th
Defendant
DILEMOPUMO
CONSTRUCTION
&
TRAINING
CC
8
th
Defendant
CORAM:
M
E
MAHLANGU, AJ
JUDGMENT
BY:
M E MAHLANGU,
AJ
HEARD
ON:
5 MAY
2023
DELIVERED
ON:
16 MAY
2023
INTRODUCTION
[1]
This
is an exception. On 20 January 2023, the first defendant delivered a
notice of exception to take exception to the plaintiff's
amended
particulars of claim in terms of Rule 23(1) of the Uniform Rules of
Court. For purposes of this judgement the parties will
be referred to
as the main action.
FACTS
[2]
The
plaintiffs allege the following against the first defendant in its
amended particulars:
2.1
That
the plaintiff had concluded a contract of construction
with the
other
defendants
in terms of which
inter
alia
the contractors are to keep
relevant information pertaining to the progress made on the
construction
endeavours.
2.2
That
the defendants had breached the terms of the agreement by failing to
not only keep proper records, but also by failing to perform
in terms
of the agreement.
2.3
That
the
'various agreements'
and
decisions related thereto, which
included the
'erstwhile building
contracts'
were
reviewed and set aside on 26 August 2019. That the decisions made by
the plaintiff to make advance payments to the defendants
were
declared unlawful.
2.4
That
the plaintiff had made payments to the amount of R34,089, 179.20 to
the first defendant. That there was no legal, moral or
natural
obligation to make such payments to the defendant.
2.5
That
the payments are made to the defendant is for the building material
that the defendant would supply to the second and further
defendants
for use during the construction process and for low cost housing.
2.6
That
the defendants were unjustifiably enriched and that the plaintiff is
impoverished.
[3]
The
first
defendant
contends that,
there is no contractual relationship
pleaded between itself and the plaintiff in the whole of the
particulars of claim (POC).
THAT
THE PLAINTIFF'S CLAIMS LACKS AVERMENTS TO SUSTAIN A CAUSE OF ACTION
[4]
The
grounds
raised
by
the defendant
are
formulated
as
follows:
"1.
The
Plaintiff
("the
Department'?
alleges
that
it
concluded
written
Building Agreements at the dates and places set out annexure
';!\",
and with the parties set out in column 3
to Annexure
"A"
(appended
to the Particulars of Claim-
"the
POC';.
2.
The
parties set on in column 3 of annexure
"A"
are purportedly the Second and
further Defendants to this action.
3.
The
Plaintiff does not allege that it concluded such an Agreement with
the First Defendant ("Ntsu”).
4.
The
Plaintiff has failed to append
-
in substantial compliance with the
Uniform Rules of Court
-
the written agreements upon which it
relies.
5.
The
Plaintiff sets out
-
in paragraph 12
-
the salient terms of these written
agreements it had with the Second and further Defendants, without
incorporating any reference
to any obligation or right bestowed upon
or befalling Ntsu.
6.
In
paragraph 13, the Department then alleges that the Second and further
Defendants had breached the terms of the agreement and
the grounds
mentioned therein.
7.
Paragraphs
14 and 15 of the POC also does not incorporate any reference to Ntsu.
8.
The
Plaintiff the alleges that this court had set aside
"various
agreements"
(without
particularising and specially stating that it was the agreements
mentioned in paragraph 11 of the POC) and
"
decisions
related thereto, which included the erstwhile building contracts"
9.
The
plaintiff then pleads that the payments referred to in paragraphs 18
and 19
"formed part of
the various agreements and/or decisions which were reviewed and set
aside."
10.
Paragraph
17 then records that the building contracts concluded between the
Department and the Second and further Defendants
"were
thus invalid ab origine".
11.
The
first reference to Ntsu is made in paragraphs 18 to 22. Paragraph 18
records that the whole amount claimed in this action was
paid to Ntsu
on 17 December 2010 and that Ntsu had made payment of an amount of
R500
,
000.00
,
on behalf of the Department, to
the Fifth Defendant.
12.
Paragraphs
18 and 19 do not record any vinculum juris between the Department and
Ntsu as serving the basis for such payments. This
of course must be
read with the preceding paragraphs of the POC
,
and where the Department had
failed to plead any nexud between it and the First Defendant as far
as the contracts there pleaded
are concerned
.
13.
Paragraph
21 records that the payments had apparently been made upon the
factual existence of certain assumptions. The closest approximation
to the pleading of any original (later declared invalid) nexus
between the making of the payments on the part of the Department
to
Ntsu, is made in paragraph 21.1. There the Department pleads that the
amount therein mentioned was paid to the First Defendant
"..
...
in that building material to
the value of R34,089,179.20 will (sic) be supplied by the first
defendant on behalf of the DHS to the
second, third, fourth, fifth,
sixth, seventh and eighth defendants
for the construction
of low cost housing
.....
"
and,
in
paragraph
21.2,
that
"The
payment
in respect of building
material would be legally payable
by the DHS to Ntsu,
and/or",
in
paragraph 21.3, that
"The
payments made to the fifth
defendant would be legally payable by the DHS.
"
19.
It
would seem thus
a
fortiori
for the Department that it pleads it had made payment to Ntsu for
building material that Ntsu would supply to the Second
and further
Defendants for use during the construction process and for the
low-cost housing for which the Second and further Defendants
were
appointed to construct.
20.
In
paragraphs 22 and 23, the Department simply pleads that
"The
assumptions
"
(set out in para 21)
'
'proved
to have
been
incorrect
and
false
thereafter
"
Without
any further elaboration. And in paragraph 23, it is pleaded
that the Department's decision (and not any underlying contract) to
make advance payments were declared as unlawful, reviewed and
set
aside. it is pleaded that these payments
were those referred
to in paragraph
18 and 19.
21.
On
the basis that the Department then claims from Ntsu in enrichment
,
this is done on the back of the
apparent declaration by the court of the decision as being unlawful.
But nowhere is it pleaded that
the building material for which Ntsu
was liable had in fact not been delivered or that the executive
action following upon the
administrative one (which was the decision)
and in terms of which the Department made such payments to Ntsu had
also been declared
unlawful and set aside, ex tune or otherwise
.
22.
Absent
such averments, the Plaintiff cannot make a case against Ntsu on the
basis of enrichment, nor can it properly quantify a
claim in
enrichment as being the whole of the amount that was apparently paid
out and that is now claimed. Cardinal to this is
an allegation
-
Ntsu contends
-
that Ntsu had failed to either
deliver the building material
to the
Second or further Defendants or had failed to deliver all material.
23.
The
Plaintiff also cannot, in law
,
base a claim upon enrichment on
the back of an allegation that payments that were made were fruitless
and wasteful, and unauthorised
.
"
DISCUSSIONS
[5]
The
exception test is whether a pleading is vague and embarrassing or an
intelligible cause of action can be ascertained.
If the answer is in the negative, the
plaintiff's claim need to be dismissed and if the answer is in the
positive, the defendants'
exception need to be dismissed. It should
further be determined whether the plaintiff's particulars of claim
have been formulated
with
the necessary clarity to enable the first defendant
to know what case to meet. In this
matter the first defendant contends that, the plaintiff's particulars
of claim do not disclose
a cause of action against
it.
[6]
Pleadings
must be read as a whole and no paragraph can be read in isolation. An
exception is procedural means to avoid the leading
of unnecessary
evidence at the trial.
[7]
From
the consideration
of
the particulars of claim and the exception, the crisp issues for
determination
are
whether there was a
concluded
agreement between first defendant and the plaintiff, whether
the
first
defendant
failed
to
deliver
according
to the terms of the agreement,
and whether the first defendant was
enriched due to the payment
made
to it to by the plaintiff.
[8]
The
plaintiff alleged in paragraph 18 of the particulars
of claim that, an amount of R34 089
1799.20 was paid to the first defendant. The plaintiff further
alleged that the first defendant
made a payment of R500 000.00 to the
fifth defendant. The first defendant argued that, the first
reference to the first
defendant
in the POC
was mentioned in paragraph 18. That
there is nothing pleaded by the plaintiff indicating what had either
caused these payments or
from what
these
payments
had
truly
stemmed.
Paragraph
26
states
that,
the
payments referred to in
'Paragraph
18
and 19 formed part of the various agreements and/o decisions which
were reviewed and set aside'.
It
is
my view
that the attachment of the order granted on 26 August 2019 would make
it clear for the first defendant to plead to the
POC.
The
first defendant
should also be
clarified on
the
content
of the order relating to the payment made to it. To mention that the
agreement/decisions were set aside is not sufficient.
[10]
The plaintiff further alleges that as a result of the payments made
to the first defendant, the first defendant has been
unjustifiably
enriched and the plaintiff has been impoverished. It is the first
defendant's contention that, the defendant was
not impoverished
because in the plaintiff's own POC there is no allegation that the
defendant had not supplied the building materials
to the other
defendants.
[11]
The
plaintiff contends that, the payments were made to the
defendant without valid cause and they
therefore need to be repaid back to the plaintiff. The plaintiff
referred to the following
four requirements
to satisfy a claim of enrichment
being:
11.1
That
the defendant
must
be enriched;
11.2
That
the plaintiff
must
be impoverished;
11.3
That
the enrichment
must
be at the expense of the plaintiff;
11.4
That
the enrichment
must be justified
[12]
The
defendant submitted that, the enrichment claim by the plaintiff is
based on a vacuum because there are
no allegations in
the
POC
that the defendant had not supplied the building materials.
LEGAL
PRINCIPLES
[13]
The
following are two major
grounds
of exception:
13.1
The
pleading fails to disclose a cause of action or defence;
13.2
The
pleading
is
vague and embarrassing.
[14]
Rule
18(4) provides
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."
[15]
The
object of a pleading is to define issues between the parties. It is
to enable each side to come to trial
prepared to meet the case of the
other
and
not
to be
taken
by surprise. Pleadings must therefore be lucid and logical and in an
intelligible form and the cause of action or defence
must clearly
appear from the factual allegations made.
[16]
In
Troppe
[1]
McCreath J said the following in respect of pleadings:
"Rule
18(4) of the Uniform Rules of Court provides that every pleading
shall contain a clear and concise statement of the material
facts
upon which the pleader relies for his
claim,
defence or answer to any pleading,
with sufficient
particularity
to enable the opposite party to reply thereto
.
It is. of course.
a basic
principle that
particulars
of claim
6should
be so phrased that a defendant may reasonably
and
fairly be required to plead thereto. This must be seen
against the background of the further
requirements
that
the
obiect of pleadings is
to enable each side to come to trail
prepared
to meet the case of the other and not to be taken
by
surprise. Pleadings must therefore be lucid and logical
and in an intelligible form; the cause
of action or defence
must
appear
clearly
from
the
factual
allegations
made.
(Harms
Civil
Procedure
in
the
Supreme
Court
at
263-4."
(my
emphasis).
[17]
In
Buchner
[2]
De
Klerk J stated as follows:
"....
It is fundamental to the judicial
process that the facts have
to
be
established.
The
Court,
on
the
established
facts, then applies the rule of law and
draws conclusions as regards the rights and obligations of the
parties and gives
judgement.
A
summons
which
propounds
the
plaintiff's
own
conclusions
and
opinions
instead
of
the
material
facts is defective. Such a summons does not set
out
a cause of action. It would be wrong if a Court were to
endorse a plaintiff's opinion by
elevating it to a
judgement
without first scrutinising the facts
upon which the opinion is based."
(my
emphasis)
[18]
The
onus of showing that a pleading is excipiable rests upon the
excipient.
[19]
The
excipient has a duty to persuade the court that upon every
interpretation which the pleading can reasonably relies, no cause
of
action is disclosed.
[20]
In
Jowell
[3]
Heher
J
summarized
the
general
principles
to
be
borne
in mind when considering exception:
"(a)
minor blemishes are irrelevant;
(b)
pleadings
must be read as a whole; no paragraph can be read in isolation;
(c)
a
distinction must be drawn between the fact probanda, or primary
factual allegations which every plaintiff must make,
and
the facta probantia
,
which
are the secondary
allegations upon
which the plaintiff will rely in support of his primary factual
allegations. Generally speaking
,
the
latter are matters for particulars for trial and even then are
limited. For the rest, they are matters for evidence.
(d)
only
facts need be pleaded; conclusions of law need not be pleaded;
(e)
bound
up with the last-mentioned consideration is that certain allegations
expressly made may carry with them implied allegations
and the
pleading must be so read."
[21]
In
Mosothokazi
[4]
Van
Der Linde J similarly and very succinctly set out the principles
applicable to exceptions, as follows:
"[4]
….
The first principle is that
exceptions are there to weed out unmeritorious causes, whether claims
or defences. They are not there
to exact perfection in pleading.
[5]
The
second principle is that in considering whether a pleading is
excipiable, the pleading must be viewed from the perspective of
every
reasonable interpretation that it can bear. Unless thus viewed
the
pleading remains vague and embarrassing, the exception cannot
succeed.
[6]
The
third principle is that an exception on the basis that the pleading
is vague and embarrassing needs to strike at the pleadings
as a
whole
,
and
not only certain paragraphs, before it will succeed.
[7]
The
fourth principle is that
a
plaintiff
need only set out the framework of its cause of action in its
particulars of claim; evidence is not required to be pleaded."
[22]
Finally,
in
Ocean
[5]
Ponnan
JA
restated
the
duty
of
an
excipient:
"Since
these are proceedings on exception, Old Mutual has the duty as
excipient to persuade the court that upon every interpretation
which
the plea can reasonably bear, no defence is
disclosed.
The
main
purpose
of
an
exception
is
to
avoid
the
leading
of
unnecessary
evidence.
By
the
nature
of
exception
proceedings,
the correctness of the facts
averred in the plea must
be
assumed.
Because
Old Mutual chose the exception
procedure
-
instead
of
having
the
matter
decided
after
the
hearing
of
evidence
at the
trial-
it had to
show
that the
plea
is (not
may
be) bad in law."
(
my
emphasis)
[23]
The
aforesaid
authorities set out the general principles applicable to pleadings.
Counsel for both parties have also referred me to
several authorities
that enabled me to come to make a decision in this matter.
In
the
present
matter,
the
excipient's
complainant
is
that
the particulars of claim do not set out a cause of action
.
In
McKenzie
[6]
the
Appellant Division defined "cause of action" as follows:
"...
every
fact
which
it would
be
necessary
for the plaintiff to
prove,
if
traversed,
in
order
to
support
his
right
to
judgement
of the court.
It
does not comprise
every
piece
of
evidence
which
is
necessary
to
prove
each
fact,
but
every
fact which is necessary to be proved."
[24]
In
Jowell
supra
at page 9138-G it was stated that:
"
(T)he plaintiff is required to
furnish an outline of its case. This
does
not mean that the defendant is entitled to
a
framework like
a
crossword puzzle in which every
gap can be filled by logical deduction. The outline may be
asymmetrical and possess rough edges
not obvious until actually
explored by evidence. Provided the defendant is given
a
clear idea of the material facts
which are
necessary to make the cause of
action intelligible
,
the
plaintiff will have satisfied the requirements."
[25]
In
Luke
M
Thembani
[7]
it
was stated that:
"Whilst
exception provide a useful mechanism
'to
weed out cases without legal merits', it
is nonetheless necessary that they be dealt with sensibly.
It is where pleadings
are so vague that it is
impossible
to
determine
the
nature
of
the
claim
or
where
pleadings
are bad in law in that their contents do not support a discernible
and legally recognized cause of action, that an exception
is
competent. The burden rests on an excipient, who must establish that
on every interpretation that can reasonably be attached
to it, the
pleading is excipiable. The test is whether on all possible readings
of the facts no cause of action may be made out,
it being for the
excipient to satisfy the Court that the conclusion
of
law
for
which
the
Plaintiff
contends
cannot
be
supported on every interpretation that can be
put upon the facts."
[26]
It
is stated in
Mckelvey
[8]
that:
"It
is a first principle in dealing with
matters of exception that, if
evidence
can be led which can disclose the cause of action alleged in the
pleading, that particular pleading is not excipiable.
A
pleading is only excipiable on the basis that no possible evidence
led on the pleading can disclose
a
cause of action".
[27]
In
Vermeulen
[9]
it
was
stated that:
"It
is trite law that an exception that a cause of action is not
disclosed by a pleading cannot succeed unless it be shown that ex
facie
the allegations made by plaintiff and any document upon which
his or her cause of action maybe based,
the claim
is
(not maybe) bad in law".
[28]
The
prejudice which justifies an
exception is
if
the
allegations in
the particulars of claim are such that
the defendant is unable to plead properly.
[29]
Returning
to this matter, no specific facts have been pleaded to substantiate
the
allegations of
the
payments made in
paragraph 18 and 19
.
As it has been alluded to above, the
fact that the decisions to make the payments have been reviewed and
set aside does not make
the clarity of the claim to go away,
especially because the court order is not also attached to the POC.
[30]
I
am also of a view that, the plaintiff could have attached the
agreements entered into between the defendants even though it is
alleged that they were reviewed and set aside to enable the first
defendant to plead to it.
[31]
I
am also of a view that the claim of unjustified enrichment is not
sufficiently
pleaded
to enable the first defendant
to
plead to it. It is not clearly quantified. It is not clear if the
whole amount paid to the first defendant
should
be
repaid to the plaintiff.
It
is not clear
from
the POC
if
the first defendant
has
ever delivered
the
building material to other contractors or not. I am not convinced
that the plaintiff had complied with the requirements of enrichment
as mentioned herein above.
ORDER
[32]
In
the
result
I make the
following
order is
made:
1.
The
exception
of
the first defendant
is
upheld;
2.
The
plaintiff is granted leave to amend the particulars of claim,
if so advised,
within 30 days of this order.
3.
The
plaintiff
shall
pay costs of the exception.
E
MAHLANGU, AJ
Counsel
for Plaintiff:
Adv
Snellenburg SC
Adv
I Macakati
Attorneys
for Plaintiff:
Phatshoane
Henney Inc
LE
Companie
PHI
Building
35
Markgraaf Street
WESTDENE
BLOEMFONTEIN
Ref:
DEP52-PH/0006/LEC/evc
Counsel
for the 1st Defendant:
Adv
S Grabler SC
Coetzees
Inc
c/o
Honey Attorneys
Honey
Chambers
Kenneth
Kaunda Road
Northridge
Mall
Bloemfontein
Tel:
051 403 6600
Email:
bianca@honeyinc.co.za
Ref:
134185/BM JONES/mj
[1]
Trappe
v
South African Reserve
Bank
and Another
and
Two
Other
Cases 1992(3)
SA
208 (T)
at
210F-H
[2]
Buchner
v Johannesburg Consolidated Investments Company Limited
1995 (1) SA
215
(T) at 216HJ.
[3]
Jowell
v Bramnell Jones and others
1998 (1) SA 836
(W) at 903A-B
[4]
Mosothokazi
Share
Trust & others
v
Broll Auctions
and
Sale (Pty)
Ltd
& Another,
In
re
:
v
Broll
auctions
and
Sale
(Pty)
Ltd
&
Another
v
Mosothokazi
Share
Trust
&
Others
(29772/2015)
[2016]
ZAPGPJHC
111
(13
May 2016)
at
paras
[4]
to [7].
[5]
Ocean
Echo Properties
327
CC and another v Old Mutual life Assurance
Company
(South Africa)
Limited
2018(3)
SA
405 (SCA) at para [9]
[6]
McKenzie6
v Farmers' Co-operative Meat Industries LTD
1922 AD 16
at 23.
[7]
Luke
M Thembani and others v President of the Republic of South Africa
(case no 167/2021)
[2020] ZASCA 70
at para 14
[8]
Mckelvey
v
Cowan
NO
1980(4)
SA
525(2)
at
526D-E
[9]
Vermeulen
v Jooste Valley Investments (Pty) ltd
2001 (3) SA 986
(SCA) at 997