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[2023] ZAFSHC 380
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Smith N.O and Others v Green Acre Farms (Pty) Ltd (5875/2021) [2023] ZAFSHC 380 (9 October 2023)
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IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case No.:
5875/2021
Reportable:
YES/NO
Of Interest to other
Judges: YES/NO
Circulate to
Magistrates: YES/NO
In
the matter between:
ELRICH
RUWAYNE SMITH
N.O.
1
st
Plaintiff
KAREN
FORTUIN
N.O.
2
nd
Plaintiff
THEA
CHRISTINA LOURENS
N.O.
3
rd
Plaintiff
(in
their capacities as duly appointed trustees
in
the insolvent estate of Rorich’s Hoop Trust
(I[...]8)
and
GREEN
ACRE FARMS (PTY) LTD
Defendant
JUDGMENT
BY
:
I VAN RHYN J
HEARD
ON:
18 AUGUSTUS 2023
DELIVERED:
9 OCTOBER 2023
[1]
On 17 December 2021 the plaintiffs, in their capacities as the duly
appointed trustees
in the insolvent estate of Rorich’s Hoop
Trust (I[...]8) (the “Trust”) issued summons against the
defendant,
a company with registered address at the farm Lexis,
Bloemhof, North West Province, claiming an amount of R4 683 421,78.
The Trust was finally sequestrated on 19 November 2020. The
plaintiffs were finally appointed as trustees of the insolvent estate
of the Trust on 30 December 2020.
[2]
Subsequent to the defendant’s first notice of its intention to
except to the
particulars of claim, the plaintiffs amended the
particulars of claim. Thereafter the defendant filed a further
exception to the
plaintiffs’ amended particulars of claim on
the grounds that it is vague and embarrassing and/or lacks averments
necessary
to sustain breach of contract as cause of action.
[3]
The exception that the particulars of claim is vague and embarrassing
is premised
on the following grounds:
3.1 In
respect of the total outstanding balance of R4 683 421.78
due by the defendant:
3.1.1 the
plaintiffs failed to set out how the amount is calculated and/or
compiled;
3.1.2 the
plaintiffs failed to state the date on which the “total
outstanding balance” due to the Trust
allegedly totalled
R4 683 421.79, alternatively, amassed to the said amount;
3.1.3 in the
premises the amount claimed is not set out with sufficient
particularity to allow the defendant a reasonable
opportunity of
assessing and considering the quantum of the amount claimed.
Alternatively, the amount claimed is pleaded in an
unnecessary and/or
inappropriate generalised and vague manner, embarrassing the
defendant who cannot consider, assess and plead
thereto.
3.2
In respect of the allegations that the Trust performed its
obligations by lending amounts to the
defendant at the specific
instance and request of the defendant:
3.2.1
plaintiffs’ amended particulars of claim is vague and/or silent
on the relevant and pertinent details of the individual
requests
allegedly made by the defendant;
3.2.2 it has not
been pleaded in what manner the alleged individual requests for loan
amounts were made by the defendant,
nor who represented the defendant
when the alleged requests were made;
3.2.3 the
plaintiffs failed to plead the dates on which the various individual
requests for loans were allegedly made
by the defendant;
3.2.4 the
vague and generalised wording of the amended paragraph 7 of
plaintiffs’ particulars of claim, embarrass
the defendant, who
cannot reasonably plead thereto; and
3.2.5 in as
far as the plaintiffs rely on an alleged breach of contract by the
defendant, it is not alleged when the
defendant had breached the
agreement.
[4]
In support of the allegation that the amended particulars of claim
lacks averments
necessary to sustain breach of contract as cause of
action, the defendant relies on the following:
4.1 It
is the plaintiffs’ case that one of the terms of the alleged
agreement was that the outstanding amount
was payable on demand.
It is not pleaded-
4.1.1 how
payment was demanded;
4.1.2 in what
amount payment was demanded;
4.1.3 when
the demand was made;
4.1.4 what
the terms of the demand were (
e.g
. was the defendant allowed a
specific time after the demand to settle the amount).
4.2 The
plaintiffs failed to plead the particulars of the Trust’s
alleged performance in terms of the loan
agreement, other than to
generally state in the amended paragraph 7 that the Trust “…had
performed its obligations…by
lending amounts to the Defendant
at the specific instance and request of the Defendant”.
No allegations are
made as to-
4.2.1 when
the various alleged individual requests were made or what the nature
and extent of the individual request(s)
were;
4.2.2 what
amount(s) were advanced in response to each individual request;
4.2.3 on what
dates amount(s) were advanced by the Trust;
4.2.4 what
amount(s) were advanced directly to the defendant; and
4.2.5 what
amount(s) were advanced as payment of expenses on the defendant’s
behalf;
4.2.6 who
represented the defendant when each alleged request for payment was
made.
4.3
The plaintiffs failed to plead how the amount claimed is calculated
with the result that the defendant
is not placed in a position to
reasonably assess the quantum of the plaintiff’s claim;
4.4
The plaintiffs failed to plead on what date the alleged outstanding
balance amounted to the sum
of R4 683 421.78;
4.5
The plaintiffs failed to plead that the plaintiffs elected to
continue with the alleged loan agreement
between the Trust and the
defendant. The agreement between the Trust and the defendant
was concluded during 2013. The Trust
was sequestrated during 2020.
Certain transactions between the Trust and the defendant
continued/followed subsequent to the
date of sequestration.
[5]
It is a basic principle that particulars of claim should be so
phrased
that a defendant may reasonably and fairly be required to
plead thereto. The purpose of pleadings is to define the issues to
enable
each side to come to trial prepared to meet the case of the
other and not be taken by surprise. Pleadings must therefore be lucid
and logical and in an intelligible form; and the cause of action or
defence must appear clearly from the factual allegations made.
This
must be seen against the background of the abolition of requests for
further particulars of pleading.
[6]
Rule of Court 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, defence or answer to any pleading, with
sufficient
particularity to enable the opposite party to reply
thereto. In
Trope
v South African Reserve Bank and Another and Two Other Cases
[1]
the requirements were explained as follows:
“
It is trite that a
party has to plead - with sufficient clarity and particularity - the
material facts upon which he relied for
the conclusion of law he
wishes the Court to draw from those facts (Mabaso v Felix
1981
(3) SA 865
(A) at 875A-H; Rule 18(4)). It is not sufficient,
therefore, to plead a conclusion of law without pleading the material
facts giving
rise to it. (Radebe and Others v Eastern Transvaal
Development Board
1988 (2) SA 785
(A) at 792J-793G.)”
In order for a
claim to disclose a cause of action, a plaintiff’s pleading
must set out “... every fact (material fact)
which it would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to judgment of the court”.
[2]
[7]
The requirement regarding the material facts which has to be set out
in the
pleading was explained as follows in
Jowell
v Bramwell-Jones and Others
[3]
:
“
. . . (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.”
[4]
[8]
The plaintiffs’ cause of action is based upon an oral loan
agreement concluded
between the Trust and the defendant. In a claim
based on a loan the plaintiff must allege and prove:
8.1
the loan;
8.2
the money was advanced under the agreement; and
8.3
the loan is repayable.
[5]
In
the matter at hand the plaintiffs’ particulars of claim are
simply based on money lent and advanced. Claims for debts and
liquidated demands are dealt with in Rule 17(2)(b) which provides
that in such a case “the summons shall be as near as may
be in
accordance with Form 9 of the First Schedule”.
[9]
Mr Els, counsel on behalf of the plaintiffs, argued, with reference
to
McKenzie
v Farmers’ Co-Operative Meat Industries Ltd
[6]
that the plaintiffs complied with the definition of “cause of
action” and that “…every fact which
it would be
necessary for the plaintiff to prove, if traversed, in order to
support his right to judgment of the court” is
contained in the
amended particulars of claim. On behalf of the plaintiffs
it is contended that care must be taken
in every case to distinguish
the facts which must be proved in order to disclose a cause of action
(the
facta
probanda
)
from the facts which prove them (the
facta
probantia
).
[10]
An exception is a legal objection to the opponent’s pleading
and a defect inherent in the pleading.
The allegations in the
pleading that forms the subject of the exception are accepted to be
correct for purposes of adjudicating
the exception. Although a
cause of action appears from the pleading, the objection is aimed at
some defect or incompleteness
in the manner in which the claim is set
out which results in embarrassment to the defendant.
[7]
[11]
The plaintiff’s claim is undoubtedly for debts. If regard is
had to the provisions of Rule
17(2)(b) and the precedents for a claim
for payment based upon an oral agreement, the plaintiffs claim is
simply based on money
lent and advanced which could have been claimed
in terms of the provisions of Rule 17(2)(b). The correct approach to
such a summons
was set out by Berman and Selikowitz JJ in
Volkskasbank
Limited v Wilkinson and three similar cases
[8]
:
“
It appears to us
accordingly that where a plaintiff sues for repayment of a loan (or
an overdraft) all that a simple summons need
contain is a statement
setting out the relief claimed and a succinct outline of the cause of
action, i.e. that an agreement of
loan (or of overdraft) was
concluded between the parties providing for interest on the balance
outstanding from time to time at
a specified (or ascertainable) rate
and which loan (or overdraft) was repayable on demand (or on a fixed
or ascertainable date)
and which, despite demand (or the arrival of
that date), has not been repaid. Where the cause of action is
founded on some
document, reference thereto should be made in the
summons and a copy thereof should be attached to the summons and the
original
should be handed in at the time when the application for
default judgment is made ….
The simple point is that
all that is required of the summons, as far as the cause of action
need be set out, is that the defendant
should be made aware of why
(and for what relief) he is being called upon to answer to
plaintiff's claim, and if the summons adequately
serves that purpose,
no more is needed of the plaintiff when applying for judgment in
cases where the defendant, duly served, elects
… [not] …
to defend the action.”
[12]
The plaintiff’s
facta probanda
are pleaded in the
following paragraphs in the particulars of claim:
“
5.1
During or about 2016, the exact date being unknown to the Plaintiffs,
and at Hoopstad, the Trust and
the Defendant entered into an oral
agreement”;
“
6.1
The Trust will lend amounts to the Defendant from time to time and on
the specific instance and request of
the Defendant”;
“
6.2
The amounts which the Trust lends to the Defendant will either be
paid to the Defendant directly or
the Trust will pay expenses on the
Defendant’s behalf”;
“
6.3
The loan, consisting of the amounts advanced to or on the Defendant’s
behalf, will be reflected
in the Defendant’s financial
statements”;
“
6.4
The loan will bear not interest as mutually agreed upon between the
parties, alternatively, the loan will
bear interest at the mora
interest rate on overdue amounts”;
“
6.5
The loan has no fixed term of repayment and is therefore payable on
demand”;
“
7
The Trust performed its obligations in terms of the agreement by
lending amounts
to the Defendant on the specific instance and request
of the Defendant”;
.“8
The total outstanding amount due by the Defendant to the Trust in
terms of the
agreement amounts to R4 683 421.78”;
[13]
I quote from the headnote of the Judgment in
Francis
v Sharp and others
[9]
as published:
“…
The Court
dismissed each exception. While the particulars of claim could
have been more clearly stated, they were not vague
and embarrassing
to the extent that substantial prejudice to the Defendants would
result, were they allowed to stand.
The Plaintiff had
pleaded the existence of the agreement, its terms, its breach and the
manner of breach
. The particulars of claim did not prevent
the Defendants from putting up their version. It was the
function of the
Court to resolve ambiguities, uncertainties and
disagreements concerning the existence of an agreement or its terms.
However,
this was best achieved with reference to evidence. The
exception procedure was not the appropriate mechanism by which to do
so. Most of the exceptions would be more properly dealt with in
pleadings. Others were devoid of any merit whatsoever.”
(Emphasis added).
It should be noted that
in the
Francis v Sharp
matter the defendants excepted to the
particulars of claim on twenty-eight (28) grounds.
[14]
The grounds upon which the defendant relies that the amount claimed
is vague and causes embarrassment
are that the plaintiffs failed to
set out how the amount is calculated and how and over which period
the alleged total amassed
to the amount claimed, R 4 683 421.78.
During argument, Ms Wright, counsel on behalf of the defendant
argued that
a greater degree of particularity is required.
[15]
The plaintiffs are merely required to plead a summary of the material
facts. An attack on a pleading
as being vague and embarrassing cannot
be found on the mere averment of lack of particularity
[10]
.
There are no inconsistencies amounting to contradictions which could
amount to vagueness and embarrassment. The omission of the
dates
and/or time period over which the amount claimed amassed to R
4 683 421.78 does not lead to the particulars of
claim
being vague or embarrassing. On behalf of the plaintiffs it was
submitted that where the complaint is one of lack of particularity
the remedy is to request discovery or further particulars. I agree.
[16]
The grounds upon which the defendant relies that the particulars of
claim are vague and/or silent on
the individual request for loans, in
what manner and when such request were made and that the vagueness
and generalised wording
of the particulars of claim, embarrasses the
defendant because it cannot reasonable plead thereto, the defendant
again attacks
the lack of particularity of the particulars of claim.
Nothing prevents the excipient from pleading its version. The
defendant
may deny that the parties had entered into the agreement as
pleaded by the plaintiff or plead its version regarding the terms of
the oral agreement. The particulars of claim is not meaningless or
capable of more than one meaning. Neither is the particulars
of claim
embarrassing.
[17]
The details which are lacking, as set out by the defendant, amounts
to
facta probantia
and not
facta probanda
. The lack of
particularity are capable of being remedied by a request for
discovery or further particulars for trial. I am not
convinced that
the exception taken that the particulars of claim is vague and
embarrassing strikes at the root of the cause of
action. The
particulars of claim, read as a whole and not a particular paragraph,
identifies the issues relied upon by the plaintiffs
and in respect
whereof evidence will be led at the coming trial.
[18]
I am of the view that the plaintiffs provided sufficient particulars
that requests were made by the
defendant over a period of time since
2016 for loans. I therefore fail to see how the failure to plead
particulars concerning each
individual request on each specific date
could lead to any vagueness or embarrassment. The defendant did not
indicate how it would
be prejudiced if the plaintiffs’
particulars of claim is not allowed to stand as it is.
[19]
In respect of the ground that the particulars of claim does not
sustain breach of contract as cause
of action in that it was not
pleaded how, when, in what amount payment was demanded, and the terms
of the demand, it is relevant
to have regard to the averment that the
plaintiffs pleaded that the defendant breached the terms and
conditions of the agreement
by failing to pay the outstanding balance
due upon demand by the plaintiff, alternatively summons constitutes
demand.
[20]
A complete cause of action based upon an oral loan would be complete
if the plaintiffs averred that
the loan was repayable and that, as in
this matter, where no date for repayment has been agreed upon, a
demand was made for repayment.
It would be sufficient if it was
pleaded that the summons constitutes demand. Demand in the form of
summons has been complied with.
I therefore fail to see how the
defendant can allege that failure to plead the date or time of the
demand, how it was made or the
terms of the demand would render the
particulars of claim excipiable. If the defendant did not
receive any demand and denies
same, it should be pleaded accordingly.
[21]
Regarding the ground of exception that the plaintiffs’ failure
to plead the particulars of the
Trust’s performance in terms of
the loan agreement, other than to generally state in the amended
paragraph 7 that the Trust
performed its obligations by lending
amounts to the defendant at specific instance and request of the
defendant, the complaint
is again regarding lack of particularity. It
is contended on behalf of the defendant that the “essential
elements”
of the plaintiffs’ cause of action are the date
of each request, the amount thereof, whether such request was for a
direct
loan or for expenses to be paid and a description of such
particular expense.
[22]
I do not agree with the defendant. What the defendant is demanding is
not merely an “outline”
of the plaintiffs’ case but
a complete “framework like a crossword puzzle in which every
gap can be filled by logical
deduction”
[11]
.
Having regard to the facts of this matter, the period of the loan
spans a period of approximately 8 years. In order to disclose
a cause
of action, the plaintiff’s pleading must set out ‘every
fact (material fact) which it would be necessary for
the plaintiffs
to prove, if traversed in order to support their right to judgment of
the court. It does not comprise every piece
of evidence which is
necessary to prove each fact.
[23]
In
McKelvey v Cowan NO
[12]
it
was held as follows:
“
It is a first
principle in dealing with matters of exception that, if evidence can
be led which can disclose a cause of action alleged
in the pleadings,
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.”
I
am not convinced that, on assuming the correctness of the factual
averments made by the plaintiffs that upon every interpretation
which
the pleading can reasonably bear, no cause of action is
disclosed.
[13]
[24]
The ground that the amount claimed by the plaintiffs have not been
set out in a manner which enables
the defendant to reasonably assess
the quantum thereof makes reference to the fact that financial
statements and an Account Transactions
Report, which had originally
been appended to the particulars of claim has, with the amendment,
been removed as annexures. In their
heads of argument, the plaintiffs
contend that the defendant is not allowed to refer to annexures which
formed part of the particulars
of claim prior to the amendment.
[25]
I agree with the submission on behalf of the plaintiffs that the
court must look at the pleading excepted
to as it stands without
reference to any other document which does not form part of it. The
amount claimed by the plaintiffs is
R 4 683 421.78 Nothing
prevents the defendants from pleading its version pertaining to the
amount claimed. It may plead
that no amount is due to the plaintiffs
or its version regarding the amount due to the plaintiffs without any
embarrassment or
prejudice. This ground for exception cannot be
upheld.
[26]
The exception, on any of the grounds contended by the defendant
cannot be upheld. There are no reasons
why the costs should not
follow the result.
[27]
Accordingly,
IT IS ORDERED THAT
:
1.
The exception is dismissed with costs.
I
VAN RHYN
JUDGE
OF THE HIGH COURT,
FREE
STATE DIVISION, BLOEMFONTEIN
On
behalf of the Plaintiffs:
ADV.
J ELS
Instructed
by:
PHATSHOANE
HENNEY INC ATTORNEYS
BLOEMFONTEIN
On
behalf of the Defendant:
ADV.
G J M WRIGHT
Instructed
by:
HORN
& VAN RENSBURG ATTORNEYS
BLOEMFONTEIN
[1]
[1993] ZASCA 54
;
1993
(3) SA 264
(A) at 273A-B,
[2]
McKenzie v Farmers Co-Operative Meat Industries Ltd
1922 AD 16
at
23.
[3]
1998
(1) SA 836 (W)
[4]
at
913B-G
[5]
Amlers:
Precedents of Pleadings ; 9th Edition; Harms; p252; Claim-for
repayment.
[6]
1922 AD 16
at 23.
[7]
Trope
(supra) at 268F.
[8]
1992
(2) SA 388
(C) at 397I – 398B .
[9]
[2003]
2 All SA 201 (C).
[10]
Absa Bank v Boksburg Transitional Local Council
1997 (2) SA 415
(W)
at 418.
[11]
Jowell v Bramwell- Jones (supra) at 913 B-G.
[12]
1980 (4) SA 525
(Z) at 526.
[13]
Voget v Kleynhans
2003 (2) SA 148
(C) at 151.