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[2023] ZAKZPHC 103
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WBHO Construction (Pty) Ltd v TMS Properties CC (10813/2022P) [2023] ZAKZPHC 103 (1 March 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
No: 10813/2022P
In
the matter between:
WBHO
CONSTRUCTION (PTY) LTD
EXCIPIENT/
DEFENDANT
and
TMS
PROPERTIES CC
RESPONDENT/PLAINTIFF
ORDER
The
following order is issued:
The
exception is dismissed with costs.
JUDGMENT
ZP
Nkosi J
[1]
The defendant has raised an exception to the plaintiff's particulars
of claim, as
amended, on the basis that it is vague and embarrassing
on the following grounds:
(a)
that it is not clear what written agreement the plaintiff intends to
rely on, and more so
as the relevant written agreement has not been
attached to the particulars of claim;
(b)
that the plaintiff has failed to aver what standard or requirement
was agreed to by the
parties as a measure for the installed roof
sheeting to be complied with for the structure to be considered
sub-standard and thereby
constituting a breach of the agreement;
(c)
that the plaintiff has failed to properly quantify its damages; and
(d)
that it is not clear whether the plaintiff in fact sustained the
damages as alleged and
whether the claim as advanced is a complete
cause of action.
[2]
In its amended particulars of claim (PoC) the plaintiff seeks to
claim damages from
the defendant arising from a breach of contract
(annexure "A"). The plaintiff alleges that the defendant
did not comply
with the specifications of the agreement and instead
performed sub-standard work which constituted a breach of the
agreement between
the parties and caused it to suffer damages.
[3]
It appears from the PoC that the plaintiff, acting in its capacity as
the Implementing
Agent on behalf of the Developer, Vulamehlo Local
Municipality and the Funder, the Provincial Department of Human
Settlements,
KwaZulu-Natal, appointed the defendant as the Contractor
for the construction of 2000 Top Structures and VIP's for the
Vulamehlo
Wards 5 and 7 Rural Housing Development Project under
contract number K11080008. A letter of appointment (annexure A)
constituted
the written agreement between the parties.
[4]
In so far as the first ground is concerned, it appears from annexure
A that it forms
partof, but does not constitute the whole agreement
(clause 4). Clause 4 also refers toa final portion of the JBCC 2000
Preliminaries,
Principle Building Agreement, Specific and Special
Conditions of Contract which shall be prepared and finalised by the
Principal
Agent and /or Engineer in due course but no reference
thereof is made in the PoC. The excipient contends that it is unclear
whether
the plaintiff, in addition, relies on the contract
documentation (i.e., Volumes 1, 2, 3 and 4), which together
constituted the
whole agreement but have not been attached to the
PoC(clause 16).
[5]
The excipient also contends that it is unclear which documents the
plaintiff referred
to as the contract documentation.
[6]
The excipient submits that the Poe is therefore vague and
embarrassing in that it
is wholly unclear on which documents, and
terms and conditions the plaintiff will rely upon in the pursuance of
its claim. In addition,
the failure to attach the referenced
contractual documents, constitutes a failure to comply with Uniform
rule 18(6) which constitutes
an irregular step.
[7]
Regarding the second ground, the plaintiff alleges that the defendant
"failed
and/or neglected to comply with the terms and/or
specifications of the agreement, in that:
'8.1
the roof and covering structures of the constructed and completed
housing units were sub
standard; and
8.2
the roof sheets on the constructed and completed housing units were
not made of zincalume,
alternatively, did not contain the components
of zincalume, namely zinc, aluminium and silicon.' (Paragraph 8 of
the PoC.)
[8]
In this regard, the excipient submits that it is wholly unclear what
exact specifications
were agreed to as this was not expressly
pleaded. Furthermore, on the allegation that the roof and covering
structures were sub-standard,
the plaintiff has failed to allege what
standard or requirement the parties had agreed to or against which
standard or requirement
the installed roof sheeting was measured. The
excipient contends that it is prejudiced as a result of the above
failures and is
embarrassed to deliver a plea thereto. The aforesaid,
it is submitted also constitutes a non-compliance of rule18(4) and an
irregular
step.
[9]
On the third ground, the plaintiff alleges that it will suffer
damages in the amount
of R15 177 650 in respect of the replacement of
the roof sheeting of 1000 housing units (para 11 of the PoC). In this
regard, the
plaintiff relies on annexures "B" and "C"
to the PoC which set out the breakdown of the materials required for
the replacement and labour costs.
[10]
The excipient argues that the plaintiff has failed to quantify its
damages in terms of Uniform
Rule 18(10) to such a degree that it can
gainfully respond thereto as it is wholly unclear whether:
(a)
the claim advanced for the amount of R13 927 650 contains only the
value of the roof sheeting
or whether it contains the amount of the
roof structure and covering;
(b)
the steel truss in respect of each unit must also be replaced; and
(c)
the totality of the amount is in fact reasonable and necessary in the
circumstances
where corrosion has taken place.
From
the aforegoing, the excipient claims that it is prejudiced and there
was non compliance of Uniform Rule 18(10) and an
irregular step.
[11]
On the fourth ground, the excipient claims that it is wholly unclear
whether:
(a)
the damages in fact manifested to all units where the plaintiff has
not yet replaced any
sheeting; and
(b)
the plaintiff in fact sustained the damages as alleged and whether
the claim as advanced
is in fact a complete cause of action.
[12]
The exception is opposed by the plaintiff on the basis that the
exception is bereft of any merit.
The plaintiff submits that the
material facts upon which its cause of action is based are properly
pleaded.
First
ground
[13]
In its heads of argument, the plaintiff contends that the term of the
agreement which the defendant
is alleged to be in breach of is
contained in paragraph 6.9 of the PoC, in particular, paragraph 6.9.5
read together with paragraphs
8.2 and 8.3 thereof. The plaintiff also
states that the averments contained in paragraph 6.9 derive from
annexure A and that there
was no need to attach the additional
contract documentation in order to enable the defendant to plead.
Second
ground
[14]
The plaintiff submits that the exact specification is pleaded, in
paragraph 6.9.5 of the PoC,
read together with paragraph 8.2 thereof
which indicates that the standard of roof sheets required had to
contain zincalume. It
is also averred that the defendant's failure to
use zincalume caused the roof sheets to corrode.
Third
ground
[15]
The plaintiff considers this ground of exception to be tantamount to
an abuse of the exception
remedy as it is pertinent from paragraphs
8.2, 8.3, 10 and 11 of the PoC that the damages suffered by the
plaintiff in the amount
of R13 927 650 arise as a result of the roof
sheets of the 1000 housing units which were corroded and nowhere is
it alleged that
the steel truss requires to be replaced.
Fourth
ground
[16]
The plaintiff submits that it has quantified its damages (as per
annexures B and C to the PoC).
It states it has pleaded that the roof
sheets to the 1000 housing units have been corroded and require
replacement. It has also
pleaded that the damages for the costs of
labour for the replacement are R1 250 000.
[17]
Uniform 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, defence
or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto.'
The
reason that it is so important to set out all the material facts in
the pleadings is that it is no longer possible to request
further
particulars in the High Court practice at the pleading stage.
[18]
To constitute sufficient grounds for an exception, the vagueness of
the pleading must be such
that it will result in prejudice or
embarrassment to the opposing side if it is allowed to persist.
(
Levitan v Newhaven Holiday Enterprises CC
1991 (2) SA 297
(C)
at 298A; and
Trope and Others v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 2691).
Generally,
pleadings are vague and embarrassing if they are unclear and
ambiguous to the extent that the opposing party is uncertain
of the
case he is required to meet (
Liquidators, Wapejo Shipping Co Ltd v
Lurie Bros
1924 AD 69
at 74;
Dusheiko v Milbum
1964 (4) SA
648
(A) at 655; and
Jowell v Bramwell-Jones and Others
1998
(1) SA 836
(W) at 902F-G).
[19]
The ultimate test as to whether or not the exception should be upheld
is whether the excipient
is prejudiced. The onus is on the excipient
to show both vagueness amounting to embarrassment and embarrassment
amounting to prejudice
(
Quinlan v MacGregor
1960 (4) SA 383
(D) at 393G;
Lockhat and Others v Minister of the Interior
1960 (3) SA 765
(N) at 777A; and
Hlumisa Investment Holdings RF
Ltd and Another v Kirkinis and Others
2020 (5) SA 419
(SCA)).
[20]
On the first ground, I believe that the introduction of irrelevant
material, in this instance
the other documents constituting the whole
agreement, into the PoC might be considered superfluous and
unnecessary and could on
its own render the pleading vague and
embarrassing (
Trope v South African Reserve Bank and Another and
Two Other
Cases
1992 (3) SA 208
(T) at 210-211). I consider the
PoC viewed as a whole to be raising a crisp cause of action as only
manifested in annexure A. A
mere mention or reference to other
historical documents in the pleading was clearly intended for clarity
that annexure A was only
a portion of the whole agreement which does
not relate to the cause of action pleaded.
[21]
In any event, were the plaintiff to go beyond the cause of action
manifest in annexure A in the
trial such course would probably be
nipped in the bud. I therefore consider the omission of the other
documents neither to be embarrassing
nor prejudicial to the
excipient.
[22]
On the second ground, sight should not be lost of the principle that
the pleadings must be looked
at as a whole (
Nel and Others NNO v
McArthur and Others
2003 (4) SA 142
(T) at 149F). If there is
uncertainty in regard to a pleader's intention, an excipient cannot
avail himself thereof unless he shows
that upon any construction of
the pleadings the claim is excipiable (
Amalgamated Footwear and
Leather Industries v Jordan and Co Ltd
1948 (2) SA 891
(C) at
893).
[23]
On this ground, paragraphs 6.9.5, 5.1, 5.2 ,8.3 of the Poe,
read with clause 3 of annexure
A set out the option of the roof
structure and covering material that the parties agreed must be used.
A pertinent reading of the
aforementioned paragraphs demonstrates
that the roof sheets are claimed to be sub-standard because they have
corroded since they
were not, as agreed, made of zincalume,
alternatively, did not contain the components of zincalume, namely,
zinc, aluminium and
silicon. This ground too does not show any
embarrassment which leads to a prejudice.
[24]
Grounds three and four are closely related to each other as they
relate to the damages suffered
or contingent as claimed. Obviously, a
plaintiff can only claim damages already suffered and which have been
fully quantified.
[25]
I believe that the plaintiff's alleged damages have been clearly and
sufficiently quantified
in paragraphs 10, 11 and 12 of the PoC. I
consider that the cause of action relied upon by the plaintiff
subsisted when summons
was issued.
[26]
The plaintiff paid money to the defendant for installing
incorrect roof sheets which did
not accord with the agreed option.
The said roof sheets have corroded and have to be replaced at the
cost claimed. Damages herein
have been calculated as the amount of
money which is required to place the plaintiff in the position it
would have occupied had
there been proper performance. To me that
does not point to the future expense but the current one which
subsisted when the claim
was launched.
[27]
From the aforegoing, I believe that the pleadings are capable of easy
distillation and the purported
vagueness thereof does not amount to
an embarrassment and prejudice to the excipient. The exception
therefore cannot be sustained.
Order
[28]
Consequently, I make the following order:
The
exception is dismissed with costs.
ZP
Nkosi J
CASE
INFORMATION
DATE
OF HEARING
07
FEBRUARY 2023
DATE
JUDGMENT HANDED DOWN
01
MARCH 2023
COUNSEL
FOR THE EXCIPIENT/DEFENDANT:
W J
PIETERSEN
INSTRUCTED
BY
Pagel
Schulenburg Inc
Clo
Tatham Wilkes Inc.
200
Hoosen Haffejee Street
Pietermaritzburg
Tel:
033 345 3501
Email:
alcom@tathamwilkes.co.za
Ref:
MD HarrislMP/13T130222
COUNSEL
FOR RESPONDENT/PLAINTIFF:
SM
LUTHULI
INSTRUCTED
BY
Mhlanga
Incorporated
C/o
Stowell & Company
295
Pietermaritz Street
Pietermaritzburg
Tel:
033 845 0500
Email:
sumayan@stowell.co.za