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[2023] ZAFSHC 463
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Maluti Plant Crushers CC v All Star Industries CC and Others (1829/2020) [2023] ZAFSHC 463 (28 November 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:
1829/2020
In
the matter between:
MALUTI
PLANT CRUSHERS CC
Applicant
(Registration
number: 2001/061749/23)
And
ALL
STAR INDUSTRIES CC
First
Respondent
(Registration
number: 2010/018683/23)
LITHEBE
JANTHIE SETAI
Second
Respondent
RIYAAZ
ZAYN AFRICA
Third
Respondent
MANGAUNG
METROPOLITAN MUNICIPALITY
Fourth
Respondent
CORAM:
HEFER AJ
HEARD
ON
:
23 NOVEMBER 2023
DELIVERED
ON:
28
NOVEMBER 2023
[1]
This is an application to amend the Plaintiff’s Particulars of
Claim in terms of Uniform Court Rule
28(4), pursuant to a notice of
intention to amend which was filed in accordance with the Rules.
[2]
Plaintiff’s Rule 28(1) notice in regards to the intended
amendment, reads
inter alia
as follows:
“
In
paragraph
10.1
by
deleting the word ‘orally’, and adding the words at the
end of paragraph 10.1 after the word “agreement”:
‘
in
writing’.”
The
notice further contain certain minor intended amendments, which can
be described as “cosmetic” in nature.
[3]
Presently, paragraph 10.1 of the Particulars of Claim reads as
follows:
“
10.1
During June 2019 and at Bloemfontein, Plaintiff duly represented by
Drake Ahadji and First Defendant duly represented
by Riyaaz Africa,
orally amended the rate levied applicable to the agreement.”
[4] The
First and Third Respondents objected to the proposed amendment. For
pragmatic reasons, I shall refer to
the First and the Third
Defendants in this judgment as “
the Defendants”
.
The grounds for objection by the Defendants are as follows:
“
1.
On 18 August 2020 the Defendants raised an exception against the
Particulars of Claim on the basis
that it does not disclose a cause
of action.
2.
The grounds of the exception are, inter alia, that:
2.1
Clause 1.3 of the ‘Term and Conditions of Hire’ of
Annexure ‘A’ to the Particulars
of Claim provides that:
‘
1.3
This agreement records the whole agreement between the Owner and the
Hirer and overrides all other agreements,
terms or conditions
purporting to relate to the hire of the plant and collateral verbal
agreements are expressly excluded.’
2.2
The Plaintiff and First Defendant thus reduced the terms of the
agreement to writing and agreed that
the written terms of Annexure
‘A’ overrides all other agreements and that any oral
terms are expressly excluded.
2.3
Furthermore, paragraph 1.4 of Annexure ‘A’ to the
Particulars of Claim contains a non-variation
clause which provides
that:
‘
No
condition, terms or representation not expressly herein shall be
binding on the owner of the hirer and no variation shall be
binding
on either of the parties unless reduced to writing and agreed to by
the owners.’
2.4
The Plaintiff, in paragraph 10.1 of the Particulars of Claim relies
on an alleged verbal amendment of
the terms of Annexure ‘A’.
2.5
Such verbal amendment is expressly excluded by clause 1.3 of the
‘Terms and Conditions of Hire’,
as pleaded above.
2.6
Thus, the Plaintiff’s reliance on the conclusion of a partly
oral, partly written agreement and
the Plaintiff’s further
reliance on the verbal amendment of the terms of the partly oral,
partly written agreement is in
direct conflict with the written terms
of Annexure ‘A’.
3.
Defendants’ notice of exception still stands and has not been
argued.
4.
Having received the Defendants’ notice of exception the
Plaintiff attempted on three
previous occasions to cure the defects
in the Particulars of Claim.
5.
The Defendants objected to each of the Plaintiff’s attempts to
amend the Particulars
of Claim on the basis that all the intended
amendments did not cure the grounds of exception.
6.
Having received the Defendants’ objections as aforesaid, the
Plaintiff did not proceed
with a formal application to amend
the Particulars of Claim.
7.
This is now the Plaintiff’s fourth attempt (more than three
years after the summons
was issued) to cure the defects in the
Particulars of Claim.
8.
However, the Plaintiff’s fourth notice of intention to amend
respectfully fails to
address the defects identified in the notice of
exception and will, simply put, merely compound the defects any
further on the
following grounds:”
[5] In
summary in respect of the grounds of objection, the Defendants
further rely on the provisions of Rule 18(6)
which provides that a
party who in its pleading relies upon a written contract shall append
a true copy thereof or the part relied
on in pleading to such
pleading. According to the Defendants, whereas the Plaintiff has
failed to append to its notice of intention
to amend the ostensible
written document concluded between the parties during June 2019 and
in terms whereof the written terms
of the agreement has been amended,
the intended amendment does not comply with Rule 18(6) and stands to
be dismissed.
[6]
Further, also in respect of the objection to the intended amendment,
it is also the Defendants’ case
that following from the
non-compliance with Rule 18(6), relied upon by the Defendants, the
Plaintiff has failed to plead the exact
word(s) and/or exact term(s)
of the amendment to the original agreement appended to the
Particulars of Claim. As a final ground
of objection, the Defendants
then state that as such, the intended amendment does not disclose a
cause of action, alternatively,
it is vague and embarrassing to the
extent that the Defendants will be prejudiced to plead thereto.
[7]
An application in terms of Rule 28(4) is an interlocutory application
as contemplated in Rule 6(11) and need
not be brought on Notice of
Motion supported by an affidavit.
[1]
In the present application, the Plaintiff has chosen to support the
application by way of an affidavit.
[8]
According to Mr
Sander
,
acting on behalf of the Defendants, the use of the affidavit by the
Plaintiff, was done because the proposed amendment would render
the
Particulars of Claim excipiable “…
hence
an application was lodged where the deponent attempts to lead
evidence”
.
[2]
[9] It
is further Mr
Sander
’s argument that it does not lie in
the mouth of a deponent, an attorney and not a party to the
proceedings, to give context
and lead evidence. The mere fact that
the same saw it necessary to do so is indicative of the ailing nature
of the proposed amendment
and “
puts paid to any notion that
the pleading in the context of the proposed amendment is not
excipiable”
. Mr
Sander
then further continued to
argue that this is the first score on which the application should be
dismissed with costs. It is according
to him also an abuse of process
insofar as the deponent, apparently an attorney of this Court, seems
to supplement an ailing proposed
amendment under oath. It is further
then argued that the amendment should be correct from the outset and
it is not proper to explain
or supplement the same in an application
for leave to amend. This, according to Mr
Sander,
is
because , in judging the excipiability of a pleading, the
pleading itself is considered and no extrinsic
evidence as to what it
entails is allowed.
[10]
I am in agreement with Mr
Sander
’
s
submission that in dealing with an exception, the Court should
only consider the pleading against which an exception is
raised and
that no extrinsic evidence is allowed in respect of such pleading. I
also agree with Mr
Sander
’
s
submission with reference to the matter of
Picbel
Groep Voorsorg-fonds v Somerville
[3]
,
that, when Courts consider exceptions, no additional facts may
be adduced by either party and the Court must assume that
the facts
alleged in the relevant pleading are correct.
[11] I do not
however agree with Mr
Sander
that the fact that the Applicant
has chosen to support its application by way of an affidavit, and
“
give context and lead evidence”
, constitutes a
ground on which the application should be dismissed. In this respect
the Defendants loose sight of the fact that
in their own objection to
the intended amendment, the Defendants refer to the fact that upon
receipt of the Defendants’ notice
of exception to the
Plaintiff’s Particulars of Claim, the Applicant on three
previous occasions, attempted to cure the defects
in the Particulars
of Claim. What is also contained in the same objection, is the
statement that the Defendants objected to each
of the Plaintiff’s
attempts to amend the Particulars of Claim on the basis that all the
intended amendments did not cure
the grounds of exception. Contained
in this notice of objection, it is stated that having received the
Defendants’ objections
to the previous amendments, the
Plaintiff did not proceed with a formal application to amend the
Particulars of Claim.
[12] The history as
contained in the founding affidavit to the application in terms of
Rule 28(4), is in answer to the contents
of the objection filed by
the Defendants. Insofar as this court is still dealing
with an application to amend and not
an exception, the Applicant is
fully entitled to deal with what is contained in the objection.
Whereas the objection itself contains
“
evidence”
in respect of the intended amendment, it will be unjust not to
allow the Plaintiff to respond thereto.
[13] In any event,
as will be shown, I did not come to my finding herein with reference
to the facts as set out in the founding
affidavit to the application.
What follows is now a discussion of the grounds of objection as
raised by the Defendants.
Discussion
:
[14] If one, at
this stage, accept that the amendments as envisaged in the Rule 28
notice are granted, the effect thereof
will be that the relevant
portions of the Particulars of Claim will read as follows:
“
10.1
During June 2019 and at Bloemfontein, Plaintiff duly represented by
Drake Ahadji and First Defendant duly represented
by Riyaaz Africa,
amended the rate levied applicable to the agreement in writing.
10.2
Accordingly, the rate to be levied by Plaintiff was as from June 2019
amended from a Dry Rate to a Wet Rate,
meaning on
(sic)
increased rate.
10.3
As a result, Plaintiff provided First Defendant with a quotation,
which was accepted by First Defendant in
supplying the Plaintiff with
a purchase order, a copy of the quotation is annexed hereto as per
Annexure ‘B’ and the
purchase order as per Annexure “C’.”
[15] One of the
grounds of objection as relied upon by the Defendants, is that should
the leave to amend be granted as sought,
and in particular in regards
to paragraph 10.1 thereof, and effectively therefore in regards to
the whole of paragraph 10, such
amendment will render the Particulars
of Claim excipiable on the basis of being vague and embarrassing as
well as not disclosing
a cause of action.
[16]
The test applicable in deciding exceptions based on vagueness and
embarrassment arising out of a lack of particularity
has been dealt
with in a number of authorities. In
Venter
v Wolfsbergh Arch Investments 2
[4]
,
Potgieter AJ held
“
A
statement is vague when it is either meaningless or capable of more
than one meaning or can be read ‘in any one of a number
of
ways’. To put it at its simplest: the reader must be unable to
extract from the statement a clear, single meaning.”
[17]
In
Lockhat
and Others v Minister of the Interior
[5]
,
the following was held:
“
If
an exception on the ground that certain allegations are vague and
embarrassing is to succeed, then it must be shown that a defendant,
at any rate for the purposes of his plea, is substantially
embarrassed by the vagueness or lack of particularity. Jooste v
Jooste
1927 NPD 305
at p. 307; International Tabacco Company of
SA Ltd v Wollheim and Others
1953 (2) SA 603
(AD). The object
of all pleadings is that a succinct statement of all the grounds upon
which a claim is made or resisted
shall be set forth shortly and
concisely; and whether such statement is vague, it is either
meaningless or capable of more than
one meaning. It is embarrassing
in that it cannot be gathered from it what ground is relied on by the
pleader.”
[18]
The ultimate test as to whether or not the exception should be upheld
is whether the excipient is prejudiced.
[6]
In this regard, McCreath J, said the following in
Trope
v South African Reserve Bank and Another
[7]
:
“
An
exception to a pleading on the ground that it is vague and
embarrassing involves a twofold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such
a nature
that the excipient is prejudiced. (Quinlan v McGregor
1960 (4) SA 383
(D) at 393E – H). As to whether there is prejudice, the ability
of the excipient to produce an exception-proof plea is not
the only,
nor indeed the most important, test – see the remarks of
Conradie J in Levitan v Newhaven Holiday Enterprises CC
1991 (2) SA
297
(C) at 298G – H. If that were the only test, the object of
pleadings to enable parties to come to trial prepared to meet each
other’s case and not be taken by surprise may well be defeated.
Thus it may be
possible to plead to the Particulars of Claim which can be read in
any one of a number of ways by simply denying
the allegations made;
likewise to a pleading which leaves one guessing as to its actual
meaning. Yet, there can be no doubt that
such a pleading is
excipiable as being vague and embarrassing – See Parow Lands
(Pty) Ltd v Schneider
1952 (1) SA 150
(SWA) at 152F – G and the
authorities there cited.”
[19] At first
glance, the intended amendment in regards to paragraph 10.1 of the
Particulars of Claim, if read in conjunction
with the remainder of
paragraph 10 being paragraphs 10.2 and 10.3, are being contextualised
by the contents of paragraphs 10.2
and 10.3 with particular reference
to Annexures “B” and “C” to the Particulars
of Claim.
[20] However, if
one considers the contents of paragraph 10, and in particular
paragraph 10.3 thereof closely, the conclusion
which the Plaintiff
seeks in respect of the alleged amendment in writing, does not
necessarily stem from the contents of Annexures
“B” and
“C” as argued on behalf of the Plaintiff. Paragraphs 10.1
and 10.2 of the Particulars of Claim,
will, in its amended form, deal
with the alleged amendment in writing to the effect that from June
2019 an increased rate was to
be levied by the Plaintiff namely from
a dry rate to a wet rate.
[21] Then, the
following words are contained in paragraph 10.3 of the Particulars of
Claim:
“
As
a result
,(own
emphasis) Plaintiff provided First Defendant with a quotation, which
was accepted by First Defendant in supplying the Plaintiff
with a
purchase order, a copy of the quotation is annexed hereto as Annexure
“B” and the purchase order as Annexure
“C”.”
[22] During his
persuasive argument before me, Mr
Sander
indeed succeeded in
convincing me that in the context of paragraph 10 as a whole, the
allegations contained therein is not susceptible
to only one single
meaning. In particular, in respect of the words used in paragraph
10.3, the allegations as contained, may be
interpreted to the effect
that Annexures “B” and “C” does not
necessarily contain the wording of the alleged
amendment in writing.
As it appears from the wording of paragraph 10.3, the contents
thereof can also be interpreted to mean that
subsequent to the
amendment in writing (the particulars of which are then uncertain /
unknown) Plaintiff then provided
First Defendant with a
quotation which was then accepted by the First Defendant.
[23] The lack of
particularity referred to in regards to the proposed amendment in
respect of paragraph 10.1 of the Particulars
of Claim, will indeed
render the Amended Particulars of Claim excipiable. As held in
Trope
v South African Reserve Bank and Another,
in its amended
form, the Particulars of Claim and in particular paragraph 10
thereof, will leave one guessing as to its actual
meaning. As stated,
although it may be possible to plead to the Particulars of Claim ,
whereas the intended amendment lacks
particularity in
respect what the alleged amendment in writing entailed, with
reference to the context of paragraph
10 as a whole,
there is no doubt that such a pleading is excipiable as being
vague and embarrassing. Had
the notice in terms of sec 28(1)
referred to Annexures B and C in particular , the problem would have
been solved and the Defendant’s
would have known what exactly
the alleged amendment entailed .
[24] In view of my
finding that , the proposed amendment will render the Particulars of
Claim excipiable for the reasons as
stated, I do not deem it
necessary to deal with the remainder of the grounds of objection as
raised by the Defendants .
[25] It is clear
that the application stands to be dismissed whereas the
remaining “
cosmetic”
amendments as contained in
the Plaintiff’s notice of amendment are closely related to the
amendment of paragraph 10.1 which
have been dealt with herein. As far
as cost is concerned, the Plaintiff, being the unsuccessful party,
should bear the cost of
the application.
ORDER
:
Therefore, I make the
following order:
The application is
dismissed with costs.
J J F HEFER, AJ
Appearances
on behalf of the Applicant:
Adv
P Zietsman SC
Instructed
by:
Noordmans
Attorneys
Bloemfontein
On
behalf of the Respondents:
Adv
A Sander
Instructed
by:
Muller
Gonsior Incorporated
Bloemfontein
[1]
Swartz
v Van der Walt t/a Sentraten
1998 (1) SA 53
(W) at p. 6I – J
.
[2]
Respondents’ Heads, par. 25.
[3]
2013 (2) All SA 692
(SCA) at par. [7]
[4]
2008
(4) SA 639 (C)
[5]
1960
(3) SA 765
(D)
[6]
Erasmus, Superior Court Practice, 2
nd
Edition, Vol. 1,
p. D1-300.
[7]
1992
(3) SA 208
(TPD) at 211B - C