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2024
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[2024] ZAFSHC 107
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Maseko and Another v Allandins Ring Trading 519cc and Another (1691/2023) [2024] ZAFSHC 107 (15 April 2024)
IN THE HIGH COURT OF
SOUTH AFRICA,
FREE STATE DIVISION,
BLOEMFONTEIN
Reportable: NO
Of Interest to other
Judges: NO
Circulate to Magistrates:
NO
CASE NO: 1691/2023
In the
matter between:
NTHANDO
MASEKO
FIRST
PLAINTIFF/FIRST RESPONDENT
LERATO
MASEKO
SECOND
PLAINTIFF/SECOND RESPONDENT
and
ALLANDIN’S
RING TRADING 519cc
t/a
VILJOEN’S CONSTRUCTION
FIRST
DEFENDANT/FIRST EXCIPIENT
MR.
LANCE LUCAS
SECOND
DEFENDANT/SECOND EXCIPIENT
HEARD
ON:
10
November 2023
CORAM:
JORDAAN,
AJ
DELIVERED
ON:
15
April 2024
[1]
This is an exception by the Defendants against the Plaintiffs’
particulars of claim on the ground that it lacks averments necessary
to sustain a cause of action.
The exception is
opposed by the Plaintiffs.
[2]
During January 2019 the Plaintiffs, represented by the First
Plaintiff, entered into a building contract with the First Defendant,
who was represented by the Second Defendant during the conclusion of
same.
[1]
In terms of this
building contract, the First Defendant was to supply the building
material and build a double storey house, in
phases, for the
Plaintiffs- who in turn bore the responsibility to pay the contractor
for each building phase.
[2]
[3]
On
the 4
th
of April 2023, the Plaintiff instituted action against the
Defendants, founding their claim for damages in the amount of R677
003.77, on the Defendants failure to perform in terms of the building
contract.
[3]
[4]
It is to these particulars of claim, that the Defendants raise the
exception. The exception is based
on four grounds in the following terms
[4]
:
-
“
FIRST
GROUND OF EXCEPTION
The
only grounds upon which the second defendant is cited in the
particulars of claim is based on his capacity as the first
defendants agent and representative.
6. Where an agent
conclude a contract in his capacity as agent, whether he discloses
the name of his principal or not, only the
principal acquires rights
or obligations under the contract.
The
agent cannot personally be sued under the contract, nor can he be
sued in his own name, as representing his principal.
8. In the premises,
the cause of action relied on by the plaintiff’s, ex facie,
does not lie against the second defendant
as the second defendant
does not have a direct and substantial interest in the subject matter
of the action.
SECOND GROUND OF
EXCEPTION
The
plaintiffs allege in paragraph 5.1.2 of the particulars of claim
that the first defendant did not supply proof of approval
from the
NHBRC and the local authority for both phase 1 and 2.
10.
Their alleged failure by the first defendant to supply the
plaintiffs with proof of approval from the NHBRC are C and the
local
authority for phases1 and 2 has not been pleaded as
a
material nor implied, alternatively tacit term of the agreement, nor
was such term agreed to between the parties in the unmarked
building
contract annexed to the particulars of
claim.
11. In the premises,
the plaintiffs seek to hold the first defendant liable to a term
which had not been pleaded nor agreed to between
the parties. The
particulars of claim therefore
lack
averments that are necessary to sustain a cause of action.
THIRD GROUND OF
EXCEPTION
12. The unmarked
building contract annexed to the particulars of claim does not
specify that the works and all its component parts
are to be
performed by a scheduled specified date
or
dates.
13. The plaintiff’s
likewise do not plead that the first defendant had to complete the
scheduled works or any component part
thereof by a specified
scheduled date or dates.
14.
In the absence of any contractually agreed timeframe to establish a
right to cancel an agreement due to a material breach by
the other
party, the non-defaulting party must first place the defaulting party
in default by way of a written notice to the defaulting
party.
15. The plaintiffs
failed to provide the first defendant with a written notice of
default.
16. The first
defendant was entitled to know in advance if and exactly when it was
supposed to be in mora.
17.
In the premises the first defendant is not in mora and the plaintiffs
are not entitled to claim damages from the first defendant
as a
result of the plaintiffs’ failure to give due notice that the
first defendant is to perform by a determined or determinable
date.
The particulars of claim therefore lack averments that are necessary
to sustain a cause of action.
FOURTH GROUND OF
EXCEPTION
18.
The cause of action relied on by the plaintiffs is based on
contractual damages suffered by the plaintiffs, as a result of the
alleged failure of the first and second defendant to
perform their obligations in terms of the
unmarked written building contract, annexed to the particulars of
claim.
19. A plaintiff who
seeks damages for an alleged breach of contract is entitled to a
decree of specific performance, with or without
damages, or to an
order cancelling the contract.
20. The plaintive
failed to allege in the particulars of claim whether they seek an
order for specific performance or an order of
cancellation of the
building contract.
21. In the event that
the plaintiffs seek an order for cancellation of the contract on the
ground of the alleged breach of the building
contract by the first
defendant, the plaintiffs failed to allege that:
21.1 the right to
cancellation has accrued because the breach is material;
21.2 a clear and
unequivocal notice of cancellation was conveyed to the first and
second defendant;
21.3 the building
contract was cancelled by the issuing of summons.
22. In the premises,
the building contract between the parties remains in force and both
parties will haver to adhere to all their
rights and obligations in
terms of the contract.”
[5]
Rule 23(1) of the Uniform Rules of Court provide for two
grounds of exception namely:
a. that the pleading is
vague and embarrassing; or
b. that the pleading
lacks averments which are necessary to sustain an action or defence,
as the case may be.
[6]
An
exception is a pleading in which a party states his objection to the
contents of a pleading of the opposite party on the grounds
that the
contents are vague and embarrassing or lack averments which are
necessary to sustain the specific cause of action or the
specific
defence relied upon.
[5]
[7]
As a
result, where an exception is taken, a court should look only to the
pleading excepted to as it stands and thus take the facts
alleged in
the pleading as correct.
[6]
This is however limited in operation to allegations of fact, and
cannot be extended to inferences and conclusions not warranted
by the
allegations of fact. This principle does not stultify a court to
accept facts which are manifestly false and so divorced
from reality
that they cannot possibly be proved.
[7]
[8]
The
general principles governing exceptions were summarised by Makgoka J
in the case of Living Hands (Pty) Ltd v Ditz
[8]
as follows:
“
(a) In
considering an exception that a pleading does not sustain a cause of
action, the court will accept, as true, the allegations
pleaded by
the plaintiff to assess whether they disclose a cause of action.
(b) The object of an
exception is not to embarrass one's opponent or to take advantage of
a technical flaw, but to dispose of the
case or a portion thereof in
an expeditious manner, or to protect oneself against an embarrassment
which is so serious
as to merit the costs even of an exception.
(c) The purpose of an
exception is to raise a substantive question of law which may have
the effect of settling the dispute between
the parties. If the
exception is not taken for that purpose, an excipient should make out
a very clear case before it would be
allowed to succeed.
(d) An excipient who
alleges that a summons does not disclose a cause of action must
establish that, upon any construction of the
particulars of claim, no
cause of action is disclosed.
(e) An over-technical
approach should be avoided because it destroys the usefulness of the
exception procedure, which is to weed
out cases without legal merit.
(f) Pleadings must be
read as a whole and an exception cannot be taken to a paragraph or a
part of a pleading that is not self-contained.
(g) Minor blemishes
and unradical embarrassments caused by a pleading can and should be
cured by further particulars.”
[9]
In
order to disclose a cause of action, the Plaintiff’s pleading
must set out “
every
fact (material fact) which would be necessary for the plaintiff to
prove, if traversed, in order to support his right to judgment
of the
court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved.”
[9]
[10]
It
is trite that where an exception is taken to a pleading that no cause
of action is disclosed, the excipient carries the onus
to demonstrate
that,
ex
faci
e
the allegations made by a plaintiff and any document upon which his
or her cause of action may be based, the claim is (not may
be) bad in
law.
[10]
[11]
On
behalf of the Defendants it was submitted that for the reasons
expounded in the various grounds of exception, there is a lack
of
averments necessary to sustain a cause of action. In the first ground
of exception the Defendants except to the citation of
the Second
Defendant as being solely based on his capacity as a representative
and agent
[11]
of the First
Defendant. The pleadings disclose that where the Plaintiffs plead
obligations it is only in respect of the First Defendant
and breach
solely in respect of the First Defendant.
[12]
[12]
The Plaintiff’s responded to this first ground of exception and
submitted that the Second Defendant has an interest in
the
Corporation and though refered to as a “representative and
agent”, it must be construed in the context of the citation
of
the First Defendant, being the Close Corporation. This the Plaintiffs
submitted, while simultaneously submitting that the First
Defendant
exist separately from its members and the Second Defendant exists
separately from the Corporation.
[13]
It was further submitted on behalf of the Plaintiffs that this
citation of the Second Defendant does not constitute a substantive
point of law in respect of a cause of action and is thus not a ground
of exception, but a citation the Defendants may admit or
deny in
their plea.
[14]
It is indeed the procedure that where the question of non-joinder or
misjoinder arises, it is raised by way of a special plea
but it is
well established that non-joinder and misjoinder can be raised by way
of exception.
In
Royce
Shoes (Pty) Ltd v McIndoe and Others NNO
[13]
it was held that the formulation of rule 23(1) has not done away with
the right of a litigant to raise misjoinder or non-joinder
by way of
exception, provided the objection can be sustained
ex
facie
the
pleading to which exception is taken, without reliance on extraneous
facts.
[15]
I align myself with the contentions of the Defendants that
ex
facie
the pleadings there lies no claim against the Second
Defendant, it is not pleaded that the Second Defendant is a member of
the
First Defendant to support the construction the Plaintiffs
contended, nor is any contractual basis upon which the Second
Defendant
is liable as an agent, pleaded.
[16]
For these reasons the first ground of exception is be upheld.
[17]
In the second ground of exception the Defendants contend that the
Plaintiffs seek to hold the Defendants liable for a term
not agreed
to in the building agreement i.e. the failure to supply approval from
NHBRC and the local authority for both phases1
and 2. The Defendants
contend that for this reason the particulars of claim lacks averments
necessary to sustain a cause of action.,
[18]
The Plaintiffs contend that the building agreement was drafted by the
Defendants and as such cannot rely on defects in the
contract that
they themselves drafted, relying on the
contra
preferentem rule
.
The Plaintiffs contend that it must be construed against the
Defendants that the obligation to provide the approvals must be
supplied and based their submission on what the court stated in the
case of Kliptown Clothing Industies Pty Ltd
[14]
“
if the meaning
of a word or clause in an insurance contract is not clear, or the
word or clause is ambiguous, the verba fortuis
accipiuntur contra
proferentem rule is applicable. This rule requires a written document
to be construed against the person who
drafted it.”
[19]
This Court had regard to paragraph 5 of the particulars of claim,
which contain the offending paragraph 5.1.2 as one of five
sub-paragraphs under paragraph 5. Paragraph 5 deal with
non-performance by the First Defendant which is expressly provided
for
in the building contract. Having regard to paragraph 5 as a
whole, the Defendants failed to show that it lacks averments
necessary
to sustain a cause of action.
[20]
For these reasons the second exception is dismissed.
[21]
The third ground of exception is based on the ground that the
building contract lacks time periods and dates by which the various
phases of the building works must be completed or that it must be
completed within a reasonable time and therefore the defaulting
party
is not in
mora
as no notice to perform by a determined or
determinable date was given.
[22]
The Defendants submit that in the circumstances
mora
being a prerequisite before damages can be claimed, the Plaintiff’s
failed to allege they have provided notice of default.
[23]
The
Plaintiffs submitted that the
Defendants are relying on a defect that they themselves created in
the contract as authors of the
contract, which is legally
impermissible by virtue of the
contra
preferentem rule.
[24]
It is indeed settled law that the principle of
contra
preferentem rule
must
fall on the excipients, by construing the terms of the contract
against the excipients, as the Supreme Court of Appeal has
in the
case of Cape Group Construction Pty Ltd t/a Forbes Waterproofing v
Government of the United Kingdom
[15]
held that the
contra
preferentem rule
provides that if there is any doubt about the meaning or scope of an
exclusion clause, the ambiguity should be resolved against
the party
seeking to rely on the exclusion clause.
[25]
The Defendants failed to show that there is a lack of averments
necessary to sustain a cause of action, having regard to the
particulars of claim.
[26]
For these reasons, the third ground of exception is dismissed.
[27]
The fourth ground of exception is based on the Plaintiffs
failing to allege in their particulars of claim whether they seek an
order
for specific performance or an order for cancellation of the
building contract.
[28]
The Plaintiffs submitted in opposition, that in so far as the
building agreement makes no provision for cancellation, such an
interpretation
must be construed against the Defendants as drafters
of the building agreement on the basis of the
contra preferentem
rule.
[29]
The Plaintiffs further submitted that they exercised their
election when summons was issued and moved the court for cancellation
without an order for specific performance.
[30]
Bradfield
[16]
pens that where
cancellation notice did not precede the summons, the issuing of
summons claiming damages will imply notice of cancellation
[17]
and imply cancellation, unless the contract prescribes a particular
procedure such as notice as was stated in the case of Shrosbree
v
Simon
[18]
. It is evident from
the pleadings that the Plaintiffs herein exercised an election to
cancel the agreement and signal such cancellation
by issuing of
summons.
[31]
In my view, having regard to the authorities mentioned herein, there
is no merit in the fourth ground of the exception, therefore
the
fourth ground of exception is dismissed.
[32]
The parties extensively addressed Court on the costs orders they
seek. The award of an appropriate cost order falls pre-eminently
within the discretion of the Court, which discretion should be
applied judicially taking into consideration all the facts. The
Court
also had regard to the postponement of the exception for later
hearing and the submissions that were made in that regard.
[33]
The Defendants were partially successful in the exception in that the
exception based on ground one was upheld, while the Plaintiffs
were
successful in that the exceptions based on grounds 2, 3 and 4 were
dismissed. The Court is of the view that the most appropriate
cost
order in the circumstances, is that each party pays their own costs.
ORDER
[34]
Consequently the following order is made:
34.1
The first ground of exception is upheld;
34.2 The second, third
and fourth grounds of exception in terms of the said notice of
exception are dismissed;
34.3 The Plaintiffs are
granted leave to amend their pleading within 10 court days of the
date of this order.
34.4
Each party is to pay their own costs.
M.T. JORDAAN
ACTING
JUDGE OF THE HIGH COURT, BLOEMFONTEIN
COUNSEL
FOR THE APPLICANT
ADV
LBJ MOENG
INSTRUCTED
BY
RC
ISHMAEL ATTORNEYS
EMAIL:
Civil@rcilaw.com
COUNSEL
FOR THE RESPONDENT
ADV
PT MASIHLEHO
INSTRUCTED
BY
MC
RADEBE ATTORNEYS
EMAIL:
[1]
Paginated
Bundle: Particulars of Claim page 3 paragraphs3.1 to 3.2
[2]
Paginated
Bundle: Particulars of Claim page 3 to 4 paragraphs 3.3.1 to 3.3.6
[3]
Paginated
Bundle: Particulars of Claim pages 9 to 10 paragraphs 5 and 6
[4]
Paginated
Bundle: Exception pages 24 to 27 paragraphs 5 to 22
[5]
Herbstein
and van Winsen: The Civil Practice of the High Courts of South
Africa, Fifth edition, page 630
[6]
Marney
v Watson
1978 (4) SA 140
(C) at 144
[7]
Voget
v Kleynhans
2003 (2) SA 148
(C) at 151
[8]
2013
(2) SA 368 (GSJ)
[9]
Herbstein
and van Winsen: The Civil Practice of the High Courts of South
Africa, Fifth edition, page 638 to 639
[10]
Vermeulen
v Goose Valley Investments (Pty) Ltd 2001(3) SALR (A)
[11]
Paginated
Bundle: Particulars of Claim page 6 paragraphs 1.4
[12]
Paginated
Bundle: Particulars of Claim pages 7 to 8 paragraphs3.1.1 to 3.3.4
and 5.1
[13]
2002
(2) SA 514 (W)
[14]
1961
(1) SA 103 (AD)
[15]
[2003]
3 All SA496 (SCA) (23 May 2003)
[16]
Christie’s
Law of Contract in South Africa, 7
th
Edition 2016 page 637
[17]
Du
Plessis v Government of Namibia
1994 NR 227-
229G-H
[18]
1999
488 (SE) 492 D-I