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2023
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[2023] ZAFSHC 351
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Menzin (Pty) Ltd v Edwin Contruction (Pty) Ltd (657/2023) [2023] ZAFSHC 351 (4 September 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
Yes/No
Of
interest to other judges Yes/No
Circulate
to Magistrates Yes/No
Case
no: 657/2023
In
the matter between:
MENZIN (PTY) LTD
and
EDWIN
CONSTRUCTION (PTY) LTD
Plaintiff/Respondent
Defendant/Excipient
CORAM:
P
R CRONJÉ, AJ
HEARD
ON:
11
AUGUST 2023
DELIVERED
ON:
4 SEPTEMBER
2023
JUDGMENT
BY:
P R
CRONJÉ, AJ
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 9h30 on 04 September
2023.
[1]
The Plaintiff (“Menzin”) instituted action against the
Defendant
(“
Edwin Construction
”) and alleges that
a written agreement was concluded for internal sewer and water
reticulation. Edwin Construction
took exception against the
particulars of claim and afforded it an opportunity to remedy the
defects. Edwin Construction states
that the claim is vague and
embarrassing, does not disclose causes of action and that no
allegations are made to bring the claim
within this court’s
jurisdiction. Menzin did not address any of the objections and Edwin
Construction thereupon filed its
exception.
[2]
I pause to state that Menzin’s attorneys, Siziba Attorneys,
withdrew
as attorneys of record and served the withdrawal on 2 August
2023. The Notice of set-down was served on Siziba Attorneys on 8 June
2023 via email. There was no appearance for Menzin when the matter
was called.
[3]
Mr Francis Ntsane Menyau eventually arrived and I enquired about his
intentions.
He indicated that he represents Menzin and that Menzin’s
attorneys informed him that he must come to Court as the matter is
on
the roll. He indicated that he intends obtain a new lawyer. I
informed him that if Edwin Construction succeeds on any of the
grounds of exception, Menzin will still have an opportunity to amend
its papers and the doors to Court would not be closed to it.
[4]
He informed me that I may continue to hear the matter and I requested
him to provide his full details to Edwin Construction’s
attorney who was in Court. I thereupon continued to hear the
application.
Edwin Construction in any event has to convince me that
there is a basis for the exception. I refer to the numbers of the
grounds
as they appear in the exception.
[5]
Menzin refers to four (4) types of work it had to perform in terms of
a written agreement which it attaches as Annexure “M1”.
It alleges that it performed the works and from time to time
submitted invoices for the work done.
[6]
It furthermore alleges that on 13 January 2022, it approached Edwin
Construction
for a contract review and that in pursuance of the
review it was revealed that Menzin was underpaid. It claims an
amount
of
R1 472 094.56
plus interest and costs.
[7]
Mr K Naidoo, credit to him, who appeared for Edwin Construction,
abandoned the first
and second grounds of exception.
[8]
The third and fifth grounds of exception can be joined together.
Edwin Construction
states that no cause of action is disclosed as
there is no averment as to how, when and where the works were to be
completed or
by whom; no averment as to the obligations pertaining to
invoicing and/or remuneration is alleged; who would be responsible
for
remuneration; how and when such remuneration would become due,
owing and payable; when, where and how and by whom such works were
completed; when, where and in what manner Menzin invoiced Edwin
Construction for the works performed; and in what manner Edwin
Construction allegedly breached the terms of the agreement.
[1]
Menzin also fails to plead the exact basis of damages. This has to be
read with Rule 18(10) of the Uniform Rules of Court.
[2]
Mr Naidoo convincingly dealt with these in his heads and the
argument.
[9]
Although it was not taken as a point of exception, paragraph 5 of the
particulars
of claim refers to the General Conditions of Subcontract
2010, 2
nd
Edition. The document attached does not
carry the same wording. Paragraph 5 may only be a typographical
error.
[10]
Paragraph 1 of the General Conditions of Subcontract provides that
the subcontract shall be supplemental
to an agreement made or deemed
to have been made as defined in the Schedule to the documents and for
purpose of the subcontract,
such agreement shall be called the Main
Contract. Clause 12 of the GCCS 2011 provides for valuations
and payments and yet
again refers to the subcontract and the
provisions of the Main Contract. A careful perusal of the
document does not make
it apparent what exactly the Main
Agreement/contract is. Clause 14 also provides that the notifications
and claims procedure shall
strictly follow the provisions of the Main
Contract.
[11]
I am of the view that the third and fifth grounds of exception have
to succeed.
[12]
In respect of the first fourth ground of the exception, Edwin
Construction states that Menzin failed
to plead who the employer is;
the basis for the contention that Menzin has a right to a contract
review with specific reference
to which clause Menzin refers to for
such review; and when, where, how and by whom the alleged review
assessment and recalculation
was conducted. Annexure “M2”
is a spreadsheet and not a contract review.
[3]
[13]
Having considered the submissions of Mr Naidoo, a perusal of the
particulars of claim
and the documentation referred to, I am of the
view that the first fourth ground of exception has to succeed.
[14]
The second fourth ground of exception pertains to jurisdiction. It is
apparent from
annexure “M1” that Menzin has an address in
Bloemfontein and it is trite that for the High Court to have
jurisdiction,
only one element of a contract (conclusion) has to be
alleged and/or proven. I am satisfied that on a reading of the
contract,
Menzin is an
incola
of this Court, and the second
fourth ground of exception cannot succeed.
[15]
Menzin should be afforded an opportunity to remedy the defects in its
particulars
of claim should it deem it necessary.
[4]
I cannot force it to do so and failure to do so may eventually have
its claim dismissed/struck out.
[16]
Edwin Construction has been substantially successful in its exception
and there is
no reason Menzin should not pay the costs of the
exception.
[17]
I therefore make the following order:
ORDER:
1.
The exception in respect of the third, first fourth, and fifth
grounds of exception succeeds.
2.
The Plaintiff is granted opportunity to amend its pleadings within
thirty (30) days of receipt
of the Order.
3.
Plaintiff to pay the costs of the Defendant in respect of the
exception.
P R
CRONJÉ, AJ
Appearance
of the Excipient/Defendant:
Adv.
K. Naidoo
Hattingh
& Ndzabandzaba Attorneys
Bruce
Blair Attorneys
Bloemfontein
Appearance
for the Plaintiff:
Mr
Francis Ntsane Menyau
36661
Freedom Square
Bloemfontein
[1]
Pleadings, page 83 - 90
[2]
See:
Trope
v South African Reserve Bank and Another
1992
(3) SA 208 (T) at 210 H
;
See also
Trope
and Others v South African Reserve Bank
(641/91)
[1993] ZASCA 54; 1993 (3) SA 264 (AD); [1993] 2 All SA 278 (A) (31
March 1993);
Inzinger
v Hofmeyr and Others
(7575/2010)
[2010] ZAGPJHC 104 (4 November 2010)
[3]
Inzinger
v Hofmeyr and Others supra
[4]
See:
Trope
and Others v South African Reserve Bank
(641/91)
[1993] ZASCA 54; 1993 (3) SA 264 (AD); [1993] 2 All SA 278 (A) (31
March 1993) at par 26.