About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Makhanda
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Makhanda
>>
2024
>>
[2024] ZAECMKHC 36
|
|
JG Afrika (Pty) Limited v Intsika Yethu Municipality (380/2023) [2024] ZAECMKHC 36 (19 March 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
CASE
NO. 380/2023
In
the matter between:
JG
AFRIKA (PTY) LIMITED
Plaintiff/Respondent
and
INTSIKA
YETHU MUNICIPALITY
Defendant/Excipient
JUDGMENT
Rugunanan
J
[1]
The
dispute between the parties arises from an exception noted by the
excipient (the defendant) against the amended particulars
of claim of
the respondent (the plaintiff).
[2]
The
complaint is that the pleading lacks averments to sustain a cause of
action.
[3]
In
arriving at the conclusion at the end of this judgment, I have had
recourse to the following legal principles in evaluating the
defendant’s exception.
[1]
[4]
In
considering an exception that a pleading does not sustain a cause of
action the court will accept as correct the allegations
pleaded by
the plaintiff. Upon any construction of the particulars of claim it
must be established by the excipient that no cause
of action is
disclosed
[2]
. Put otherwise,
ex
facie
the allegations made by a plaintiff and any document upon which his
or her cause of action may be based, it must be shown that
the claim
is bad in law.
[3]
Failing this
the exception ought not to be upheld.
[4]
[5]
An
over technical approach should be avoided for the reason that it
destroys the usefulness of the exception procedure, which is
to weed
out cases without legal merit.
[5]
[6]
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.
[6]
[7]
Minor
blemishes and uncritical embarrassments caused by a pleading can and
should be cured by further particulars.
[8]
The
expression cause of action has been held to mean,
‘
[E]very
fact which it 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 of every piece of evidence which is necessary to
prove each fact, but every fact which is necessary
to be proved.’
[7]
[9]
This
definition postulates that facts should be pleaded, not evidence, and
only the material facts should be pleaded with clarity
and
conciseness. This requires of a party to formulate its case according
to the basic rules of pleading. A general rule is that
pleadings must
be lucid, logical and intelligible
[8]
.
Pleadings serve the purpose of bringing clarity, to the notice of the
court and to the parties in an action, the issues upon which
reliance
is to be placed. This objective can only be attained when parties
state their cases with precision, the degree of which
depends on the
circumstances of each case
[9]
.
[10]
Rule
18 of the Uniform Rules of Court provides guidance for pleading.
Quoting in relevant part, it reads:
‘
(3)
Every
paragraph shall be divided into paragraphs (indicating
sub-paragraphs) which shall be consecutively numbered and shall, as
nearly as possible, each contain a distinct averment.
(4) 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.
(5) …
(6) A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral
and when, where and by whom it was
concluded, and if the contract is written a true copy thereof or of
the part relied on in the
pleading shall be annexed to the pleading.’
[11]
Rule
18(4) serves as a guideline for the careful drafting of a pleading.
In brief, the rule requires that every pleading shall contain
a clear
and concise statement of the material facts upon which a pleader
relies and that such facts be set out with sufficient
particularity
to enable the opposite party to reply thereto. The clarity and
precision required of a pleading is explained in
Jowell
v Bramwell-Jones and Others
[10]
:
‘
[T]he
plaintiff is required to furnish an outline of its case. That 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 [of the rule].’
[11]
[12]
In
that regard it is of importance to be mindful of the distinction
between
facta
probanda
or primary factual allegations (i.e. material facts) which a pleader
must make and
facta
probantia
which are secondary allegations or evidence upon which the pleader
will rely to prove the primary allegations.
[12]
To sum up, although the rule serves as a guideline, a pleading should
not be read pedantically nor should a court overemphasise
precise formalistic requirements – it is the substance of the
allegations that should properly be considered.
[13]
[13]
In
summary, the particulars of claim indicate that the action instituted
by the plaintiff is for payment by the defendant of final
invoices
for fixed amounts in the sums of R924 355.37 and R63 402.49
owing to the plaintiff and is based on a contract
for the provision
of engineering services.
[14]
The
plaintiff alleges that the parties concluded a written contract
(Annexure C to the particulars of claim) during August 2013
in which
the provisions and conditions
[14]
regulating the defendant’s appointment of the plaintiff are
alleged to be set out. The agreement was preceded by a tender
process. By letter dated 28 June 2010 (Annexure A) the defendant
appointed the plaintiff as a consulting engineer. The plaintiff
pleads that the heading of the letter makes reference to its
appointment on the project for ‘
Engineering
Services for Tsomo Town Roads and Stormwater’,
albeit in the first paragraph thereof erroneous reference is made to
the installation of a telemetry system at the water treatment
works
and town reservoir. The acceptance of the appointment on the project
was conveyed to the defendant by the plaintiff in writing
on 15 July
2010 (Annexure B).
[15]
It
is pleaded that on 11 April 2016 the plaintiff underwent a name
change from ‘
Jeffares
& Green (Pty) Ltd’
to ‘
JG
Afrika (Pty) Ltd’
.
[16]
Due
to the defendant only being resourced in funds for part of the
project, the plaintiff alleges that it was agreed that the works
on
the project would be separated into two parts and undertaken on that
basis with the second part to be undertaken once sufficient
funds
were secured. Following completion of the first part (phase 1) the
plaintiff pleads that the defendant extended the plaintiff’s
instruction upon the same terms of the contract per Annexure C to
include the second part (phase 2). The extension was communicated
to
the plaintiff in writing on 11 June 2018 (Annexure D). On 25 June
2018 the plaintiff’s acceptance was endorsed thereon
with a
signature by its representative.
[17]
The
plaintiff further sets out the material terms of the contract and
having asserted that it discharged all its obligations it
pleads that
on 6 July 2020 it rendered its final invoices to the defendant for
the amounts claimed which notwithstanding demand
the defendant has
failed, refused or neglected to pay.
[18]
I
turn to the grounds of exception. The parties have competently
presented argument and are aware of the issues that require
determination.
Hence it is not intended to burden this judgment by
repeating the full scope of the exceptions, except for traversing
their material
components.
[19]
The
first point taken by the defendant is its assertion that
notwithstanding having pleaded that the letter of appointment makes
erroneous reference to the installation of a telemetry system at the
water treatment works and town reservoir, the plaintiff has
made no
claim for the rectification of the alleged error. I understand the
defendant to be suggesting that the alleged error in
Annexure A does
not reflect the common intention of the parties (In law rectification
is directed at having a written contract
conform with the common
intention of the parties
[15]
).
The defendant’s assertion is made despite the fact that the
heading of the letter, and its subject matter, is identified
as
‘
Appointment
for Engineering services for Tsomo Town Roads and Stormwater’.
A reading of the particulars of claim unambiguously indicates that
the plaintiff’s cause of action is not premised on the
letter.
It is advanced on a signed written contract identified as Annexure C
to which Annexure A
[16]
was
the precursor. The letter Annexure A is not a written contract
susceptible to rectification. On the plaintiff’s argument,
which I accept, the letter is not relied upon as the contract between
the parties for the advancement of the claims pleaded.
[20]
The
first ground of exception is further advanced with a complaint that
the plaintiff has not made the allegation as to who –
either of
the plaintiff or the defendant – made the error and the
circumstances thereof, and for that reason the defendant
is left to
speculate. The contents of the letter (Annexure A) are recorded on a
letterhead of the defendant. The letter is signed
by the municipal
manager and it further discloses the contact details by email of an
official identified as ‘
A Silinga’
.
The complaint has no merit - the letter plainly emanates from the
defendant.
Prima
facie
those identified therein may allay any speculation.
[21]
It
is trite that compliance with a valid tender process is mandated by
legislation (i.e. the Local Government: Municipal Systems
Act
[17]
the Constitution and the applicable Supply Chain Management Policy of
an organ of state).
[18]
Proceeding from the premise that the alleged extension of the
plaintiff’s contract (communicated per Annexure D) to include
the second part (phase 2) constitutes a new contract with a value in
excess of R200 000 which obliged the defendant (an organ
of
state) to have acted in accordance with a fair, equitable,
transparent, competitive and cost-effective bidding process, the
second ground of exception is that in order to sustain a cause of
action a necessary averment in the particulars of claim ought
to have
been that that there was compliance with the legislated procurement
process. The argument is that unless a procurement
process complies
with legislative prescripts the purported extension is unlawful and
the particulars of claim deficient of a cause
of action.
[22]
The
particulars of claim do not plead a new contract. Had this been the
case there may well be merit in the defendant’s ground
of
exception. The defendant overlooks what the plaintiff has
specifically pleaded in paragraph 8:
‘
[T]he
defendant extended the plaintiff’s instruction in terms of the
original appointment upon the same terms of the agreement
annexure C
to include phase 2 …’
[23]
The
particulars of claim clearly indicate that the contract Annexure C
was preceded by a tender process. I am not persuaded that
there is
any basis for the complaint that the plaintiff does not plead
compliance with procurement legislation in respect of the
extension
of the contract. As indicated in plaintiff’s heads of argument,
this is not a ground of exception – it may
found a defence but
does not sustain the defendant’s contention.
[24]
The
particulars of claim suggests that the plaintiff’s name change
to ‘
JG Afrika
(Pty) Ltd’
interceded at a stage prior to the extension of the contract on
11 June 2018 by letter Annexure D. The letter emanates from
the
office of the defendant’s municipal manager and is addressed to
an entity indicated as ‘
Jeffares
and Green Afrika Consultant’
.
[25]
On
the third ground of exception the defendant’s complaint is that
the purported extension which bears relation to the entity
indicated
in the letter as ‘
Jeffares
and Green Afrika Consultant’
,
renders the particulars of claim uncertain where it pleads reliance
on the letter which
ex
facie
is
the contract of another entity and does not sustain a cause of action
for the plaintiff. The exception is also advanced with
an assertion
that the letter is an extension of an appointment that occurred in
the period three financial years prior to June
2018 but the
particulars of claim make no allegation that the plaintiff was
appointed to render services in that period.
[26]
The
short shrift approach to the latter part of this complaint is that
the defendant overlooks paragraph 8 of the particulars of
claim where
it is averred that the defendant extended the plaintiff’s
instruction. In that regard what is detailed in paragraph
[22] of
this judgment is repeated. As for the defendant’s uncertainty
about the entity with whom the contract was extended,
Annexure C
indicates that the contract was concluded with ‘
Jeffares
& Green (Pty) Ltd’
prior to the name change in 2016 to ‘
JG
Afrika (Pty) Ltd’
.
The letter of extension (Annexure D) interceded after the name change
and was communicated on the defendant’s own letterhead.
The
defendant raises the complaint despite it being obvious, on any
reasonable interpretation of that letter, that the defendant
muddled
up the plaintiff’s name. The plaintiff’s submission that
the defendant is at liberty to plead that the letter
was not intended
to be addressed to the plaintiff and that the complaint is
ill-founded on exception, is not without merit.
[27]
Attached
to the particulars of claim as Annexure E is a document dated 24 June
2020 entitled ‘
Final
Approval Certificate of Works’
.
The certificate is issued on a letterhead of an entity ‘
Jeffares
& Green Engineering & Environmental Consulting’
.
The defendant’s concluding complaint is that the entity is
different from the plaintiff and since it does not appear from
the
particulars of claim the basis upon which the plaintiff relies on a
certificate rendered by another entity, there is no nexus
between the
plaintiff and the certificate upon which it purports to rely. The
point taken is misdirected. As a matter of fact the
certificate
indicates that it was issued by ‘
Jeffares
& Green (Pty) Ltd’
,
that it was signed on behalf of the plaintiff, accepted by the
contractor and approved by the defendant. Whilst noting that the
certificate was issued in 2020, after the plaintiff’s name
change, any uncertainty attaching to the pleader’s intention
can, in my view, be addressed in a request for trial particulars
[19]
.
[28]
As
has been said, pleadings are the written statements of the parties
setting out the material facts on which each party relies
in support
of their claim or defence as the case may be. The object of pleading
is to define the issues so as to enable the other
party, and the
court, to know what case has to be met. The defendant is not entitled
to a framework of detail in which every interval
can be filled by
logical deduction (
Jowell
v Bramwell-Jones and Others supra
)
.
It is
indeed a basic principle that a pleading should be so phrased that
the other party may reasonably and fairly be required to
required to
plead thereto. Equally so, I am of the view that the terms of the
agreement as pleaded in the particulars of claim
are sufficient to
enable the defendant to plead thereto.
[29]
The
exception is not well taken and is based on an overly technical
approach which is unsustainable.
Order:
[30]
The
exception is dismissed with costs.
M
S RUGUNANAN
JUDGE
OF THE HIGH COURT
Appearances:
For
the Excipient/ Defendant:
M Gwala SC
, Instructed by Zilwa
Attorneys Makhanda (Ref: MP0312).
For
the Respondent/Plaintiff:
D H De La Harpe SC
, Instructed by
Drake Flemmer & Orsmond Inc., c/o De Jager & Lordan Inc.,
Makhanda (Ref: S Tarr).
Date
heard:
29 February 2024.
Date
delivered: 19 March 2024.
[1]
See generally Erasmus,
Superior
Court Practice
at D1-294 [Service 20, 2022].
[2]
Fairoaks
Investment Holdings (Pty) Ltd and Another v Olivier and Others
[2008] ZASCA 41
;
2008
(4) SA 302
(SCA) at para 12.
[3]
Callender-Easby
v Grahamstown Municipality
1981 (2) SA 810
(E) at 813A.
[4]
Sanan v
Eskom Holdings Ltd
2010 (6) SA 638
(GSJ) at 645G, and
Van
Baalen and Another v ABSA Bank
[2024] ZAGPPHC 26 para 15.
[5]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) SA 461
(SCA) para 3.
[6]
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
(W) at 902J.
[7]
Evins v
Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 838 D-H.
[8]
Trope v
South African Reserve Bank and Another
1992
(3) SA 208
(T) at 210H.
[9]
Imprefed
(Pty) Ltd v National Transport Commission
1993
(3) SA 94
(AD) at 107C-E.
[10]
1998 (1) SA 836 (W).
[11]
at 913F-G.
[12]
Nasionale
Aartappel Korporasie Beperk v Price Waterhouse Coopers Ing en andere
2001 (2) SA 790
(T) at 797G-I and 798C-E;
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
(W) at 903A-B; and
Makgae
v Sentraboer (Koöperatief) Bpk
1981 (4) SA 239
(T) at 245D-E.
[13]
MN v AJ
2013
(3) SA 26
(WCC), para 24 and
Suid
Afrikaans Onderlinge Brand en Algemene Versekerings Maatskappy Bpk v
Van der Berg en Andere
1976 (1) SA 602
(AD) at 607E.
[14]
See Harms,
Amler’s
Precedents of Pleadings
9
th
edition at p111 for the distinction between these terms.
[15]
Tesven
CC v SA Bank of Athens
2000 (1) SA 268
(SCA); also Harms
op
cit
at
p310.
[16]
And Annexure B.
[17]
Act 32 of 2000.
[18]
See generally
Allpay
Consolidated Holdings (Pty) Ltd and Others v Chief Executive
Officer, South African Social Security Agency and Others
2014 (1) SA 604
(CC) para 40;
Municipal
Manager: Quakeni Local Municipality and Another v FV General Trading
CC
2010 (1) SA 356
(SCA);
Ferrostaal
GMBH and Another v Transnet SOC Ltd and Another
2021
(5) SA 493
(SCA) para 31;
Valor
IT v Premier, North West Province and Others
2021 (1) SA 42
(SCA) para 41.
[19]
Callender-Easby v Grahamstown Municipality
1981 (2) SA 810
(E) at
812H.