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2023
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[2023] ZAFSHC 353
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Nobandu General Trading (Pty) Ltd v Edwin Construction (Pty) Ltd (658/2023) [2023] ZAFSHC 353 (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
Magistrates Yes/No
Cas
e
no: 658/2023
In
the matter between:
NOBANDU
GENERAL TRADING (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
CRONJ
É
,
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 (“
Nobandu
”) 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 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. Nobandu
did not address any of the objections and Edwin Construction
thereupon filed its exception.
I refer to the numbers of the grounds
as they appear in the exception.
[2]
I pause to state that Nobandu’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. I continued to hear the application as Edwin
Construction in any event has to convince me that there is a basis
for the exception and the result would not close the doors of the
court to Nobandu.
[3]
Nobandu refers to four (4) types of work it had to perform in terms
of
a written agreement. It alleges that it performed the works and
from time to time submitted invoices for the work done.
[4]
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 Nobandu was underpaid. It claims an
amount
of
R1 629 295.65
plus interest and costs.
[5]
Mr K Naidoo, credit to him, who appeared for Edwin Construction,
abandoned
the first and second grounds of exception.
[6]
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 Nobandu invoiced Edwin
Construction for the works performed; and in what manner
Edwin
Construction allegedly breached the terms of the agreement.
[1]
Nobandu also fails to plead the exact basis of damages suffered. 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.
[7]
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.
[8]
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.
[9]
I am of the view that the third and fifth grounds of exception have
to
succeed.
[10]
In respect of the first fourth ground of the exception, Edwin
Construction states
that Nobandu failed to plead who the employer is;
the basis for the contention that Nobandu has a right to a contract
review with
specific reference to which clause Nobandu refers to for
such review; and when, where, how and by whom the alleged review
assessment
and recalculation was conducted. Annexure “NGT2”
is a spreadsheet and not a contract review.
[3]
[11]
Having considered the submissions made by 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.
[12]
The second fourth ground of exception pertains to jurisdiction. It is
apparent from
annexure “NGT1” that Nobandu 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 been
alleged and/or proven. I am satisfied that on a reading of the
contract,
Nobandu is an
incola
of this Court, and the second
fourth ground of exception cannot succeed.
[13]
Nobandu 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.
[14]
Edwin Construction has been substantially successful in its exception
and there is
no reason Nobandu should not pay the costs of the
exception.
[15]
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:
None
[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.