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2023
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[2023] ZAECELLC 4
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Mayibuye Transport Corporation v Kubupay (Pty) Ltd (884/2021) [2023] ZAECELLC 4 (2 February 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. 884/2021
NOT
REPORTABLE
In
the matter between:
MAYIBUYE
TRANSPORT CORPORATION
Plaintiff
And
KUBUPAY
(PTY) LTD
Defendant
JUDGMENT IN RESPECT OF
EXCEPTION RAISED BY
DEFENDANT TO
PLAINTIFF’S
AMENDED PARTICUARS OF CLAIM
HARTLE
J
[1]
The defendant excepted to the plaintiff’s amended particulars
of
claim on the bases both that certain averments contained therein
are “meaningless”, and that they lack averments to
sustain its purported claim. That claim is alleged to be for
payment of the sum of R7 432 872.92 as a so-called
refund
of a purchase price for a fare evasion system paid, and the service
fee to maintain that system, arising upon the breach
of an underlying
contract pursuant to which those goods and services were procured.
[2]
The latter pleading was the plaintiff’s attempt to remove the
cause
of the defendant’s previous complaint that the
particulars were vague and embarrassing and contained irrelevant
averments,
but those issues do not necessarily follow a continuum
with the present objections.
[3]
The amended
particulars of claim was preceded by the requisite notice in terms of
rule 23 (1) (a), but not the present exception.
[1]
[4]
One of the aspects which the plaintiff evidently sought to address in
the latest rendition of its claim particulars (no doubt prompted by
the defendant’s prior objections) was the obvious lack
of any
connection between the defendant as presently cited and the entities
who on the face of it allegedly concluded the underlying
agreement
with the plaintiff at the centre of the claimed contractual breach.
The plaintiff (in the first edition of its particulars
of claim) had
alluded to a written copy of the professional service agreement
forming the basis for its claim incorporating a document
drawn on
behalf of Vix-Questek (Pty) Ltd in the format of a proposal to the
plaintiff (“MTC1”), and a service level
agreement
concluded between the plaintiff and Vix Technology South Africa
(“MTC2”).
[5]
What was obviously lacking in the pre amended particulars of claim
was
an allegation that explained the relevance of those entities in
relation to the defendant or the connection between those two
separate
agreements and the parties’ supposed rights and
obligations forming the basis for the plaintiff’s present claim
against
KubuPay (Pty) Ltd.
[6]
Under the amended particulars of particulars of claim the plaintiff,
after
relating the particulars of the defendant as a registered
company, chose to explain that:
“
3.1
Defendant also trades under the name and style of Vix-Questex (Pty)
Ltd or Vix Technology South Africa
under the same registration number
and head office address;
3.2
In view of the afore-going, any reference to KubaPay (Pty) Ltd,
Vix-Questex (Pty) Ltd or
Vix Technology South Africa refers to the
same entity being the Defendant herein.”
[7]
The defendant registered its complaint in this regard in the present
exception
as follows:
“
3.
The defendant, a juristic person, cannot in law trade under the name
and style of another
juristic person, to wit Vix-Questek (Pty) Ltd,
much less under the same registration number, as is apparent from
section 14 (1)
(a) of the Companies Act; nor can any reference to the
defendant simultaneously be a reference to Vix-Questek (Pty) Ltd, as
the
plaintiff has pleaded in paragraph 3 of its amended particulars
of claim.
4.
The result is that the contents of paragraphs 3.1 and 3.2, insofar as
the plaintiff
purports to plead that the defendant trades as
Vix-Questek (Pty) Ltd under the same registration and that any
reference to the
defendant is also a reference to Vix-Questek (Pty)
Ltd or
vice versa
are meaningless and should be regarded as
pro non scripto.”
[8]
This objection by the defendant is justified, but will self-evidently
not be addressed by simply removing paragraphs 3.1 and 3.2 from the
equation.
[9]
In my view it certainly requires an explanation how the plaintiff can
be looking to the defendant to pay its claim for a “refund”
arising on the basis of agreements that on the face of it
were not
concluded with KubuPay (Pty) Ltd, the present defendant.
[10]
The answer according to the parties lies in the fact that KubuPay
(Pty) Ltd previously
traded as Vix-Questek (Pty) Ltd. The
registration number of the defendant is the same as that of
Vix-Questek (Pty) Ltd, but
the connection between it and Vix
Technology SA is however not understood. Reading between the
lines (I refer in this respect
to the proposal) Vix-Qestek had an
“association” with Vix Technology which however seems to
be an entirely different
entity from Vix-Questek (Pty) Ltd or KubuPay
(Pty) Ltd. I tried in vain to glean from the annexures relied
upon by the plaintiff
what role was played by each entity and how Vix
Technology SA came to be involved (or what their nexus is to either
the plaintiff
or the defendant) but there appears to be a disconnect
in the narrative.
[11]
The formal complaint raised by the exception though is that the
plaintiff is suggesting
(in the present manner pleaded), that KubuPay
(Pty) Ltd was trading as Vix-Questek (Pty) Ltd. Logically
however one company
cannot trade in the name of another company,
rendering the offending allegation bad in law.
[12]
A simple explanation that puts the prior trading name into
perspective in relation to the
defendant should suffice. The
plaintiff has tried to say as much in paragraph 3 of the amended
particulars of claim but unfortunately
has come up short and somewhat
clumsily given the spectre of Vix Technology SA on the horizon.
[13]
In the first round the plaintiff referred to two agreements
underlying its claim. In the
amended particulars of claim it pleads
that the parties’ agreement instead compromises of three parts
including firstly the
tender proposal in response to a tender
invitation (“MTC1”) by Vix-Questek (Pty) Ltd, secondly
the award of the tender
after the completed bidding process (“MTC2”)
to Vix Questek (Pty) Ltd on terms set out in the letter of award, and
thirdly the service level agreement (“MTC 3”) which as I
have said above appears on the face of it to be one entered
into
between the plaintiff and Vix Technology.
[14]
Leaving aside the curious deficiencies (which the defendant has not
touched upon in the
present exception) concerning what was agreed
with who exactly, and why the contest is between the plaintiff and
the defendant
presently, the defendant is additionally concerned that
the averments actually made are inadequate to sustain the purported
cause
of action relied upon by the plaintiff. In this respect
the defendant has no concern with the plaintiff’s assertion
that the three documents above comprise the whole agreement now
relied upon by the plaintiff but takes issue with the lack of
essential terms pleaded from the composite agreement by it - these
are limited to those highlighted in paragraph 8 of the amended
particulars of claim, that relate to its purported claim for a
“refund.”
[15]
The defendant asserts as follows in this respect:
“
11.
As such the way that the plaintiff has pleaded, these payments were
paid
sine
causa
.
[2]
12.
The amended particulars of claim lacks sufficient allegations to
sustain any claim for enrichment.
13.
There is also no basis in law to claim a “
refund
”
from the defendant, on the allegations as pleaded by the plaintiff in
its amended particulars of claim; not even upon a
cancellation of the
agreement. Accordingly, the particulars of claim lack allegations
sufficient to sustain a claim for a refund.”
[16]
The reference to a “refund” is confusing and misleading
because the plaintiff’s
claim appears rather to be one for
damages arising from a claimed contractual breach. Enrichment
does not enter the picture.
(The defendant cannot however be
blamed for raising the objection on the basis upon which the
plaintiff has strictly pleaded.)
[17]
Even if one discounts the wrong impression created on the pleadings
by the word “refund”
and reads it as representing the
nature of damages flowing from the alleged breach, the point is well
taken by the defendant that
not all the elements for such a claim
have been pleaded.
[18]
Assuming that the plaintiff’s objective by the refund is to be
put back in the same
position it would have been had no contract
being concluded (negative
interesse
), the plaintiff is still
obliged to state clearly what the essential terms of the composite
agreement are on which reliance is
placed, firstly to justify the
cancellation (based on an alleged breach), and secondly to justify
why a refund falls to be made.
[19]
A perusal of the particulars of claim as they stand probably achieve
the first part, but
do not explain how and why and in what form
damages flow in the nature of a “refund” of the purchase
price and service
fee previously paid upon cancellation of the
agreement. The defendant’s concern is that there is no
suggestion that
the payment sought to be recovered was a requirement
of the contract in the first place or that there was any performance
in this
respect justifying a claim for such monies to be refunded.
[20]
As was stated in the exception, none of the terms of the agreement
(constituted by the
three annexures) as pleaded by the plaintiff in
paragraph 5 required any performance on its part, much less payment
to the defendant
by it. The plaintiff has simply failed to
point to any clause that obligated the plaintiff to pay any amount
whatsoever.
Simply put, there is no averment of any obligation
to have paid.
[21]
Without this consequential flow of all the necessary elements for the
plaintiff’s
claim, the particulars of claim do not disclose a
cohesive cause of action, alternatively suffer from vagueness that
goes to the
root of its claim. This causes obvious prejudice to
the defendant who cannot be expected to plead to the particulars of
claim
as they presently stand.
[22]
In the result I am satisfied that the exception should be upheld and
that costs should
follow the result even though it was expected of
the defendant in these circumstances to have given prior notice to
the plaintiff
to remove the cause of its complaint regarding its
concern that allegations in the amended particulars of claim are
vague and embarrassing.
I would however have found in any event
that the particulars of claim were objectionable by virtue of the
absence of a cohesive
and sensible cause of action pleaded.
[23]
In the result I issue the following order:
1.
The exception is upheld.
2.
The plaintiff’s particulars of claim dated 14 October
2021 are
struck out in their entirety.
3.
The plaintiff is afforded a period of fifteen (15) days from
the date
of this order to file a further set of amended particulars of claim.
4.
The plaintiff is to pay the defendant’s costs of the exception.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
8
September 2022
DATE
OF JUDGMENT:
2
February 2023
Appearances
:
For
the Plaintiff : Mr. A Bishop instructed by Mbabane &
Maswazi Inc., East London (ref. Mr. Mbabane - MTC/1231).
For
the Defendant : Mr. Mayekiso instructed by Petersen Hertog Attorneys,
c/o Diffiord Underwood Inc,. East London (ref. Ms. Underwood).
[1]
Perhaps
the reason for the absence of any notice in terms of rule 23 (1) (a)
is that the plaintiff pleaded under the constraints
of a notice of
bar.
[2]
The
plaintiff has ostensibly not said what went before to warrant a
refund, i.e. that a payment was made, on what basis that was
made in
the first place, and why there ought to be a “refund”.