About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2022
>>
[2022] ZAFSHC 196
|
|
Vericred Bureau (Pty) Ltd v Centlec (SOC) Limited In re Centlec (SOC) Limited v Vericred Bureau (Pty) Ltd (1965/2021) [2022] ZAFSHC 196 (19 August 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 1965/2021
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
VERICRED
BUREAU (PTY)
LTD
Excipient
and
CENTLEC
(SOC) LIMITED
Respondent
In
RE
:
Case
number: 1965/2021
CENTLEC
(SOC) LIMITED
(REGISTRATION
NUMBER: 2003/0116124/07)
Plaintiff
and
VERICRED
BUREAU (PTY) LTD
(REGISTRATION
NUMBER: 1990/070325/07)
Defendant
HEARD
ON:
06 MAY
2022
CORAM:
MATHEBULA, J
DELIVERED
ON:
The judgment was handed down electronically
by circulation to the
parties’ legal representatives by email and release to SAFLII
on 19 AUGUST 2022. The date and time
for hand-down is deemed to be 19
AUGUST 2022 at 09H30.
Introduction
[1]
The defendant raised the exception on the general basis that the
plaintiff’s
particulars of claim are vague and embarrassing
thus lack averments which should enable the defendant to plead. The
plaintiff is
opposed to it.
Brief
facts
[2]
It is common cause that sometime in 2013 the plaintiff duly
represented by M.P. Seboka
in his capacity as the Chief Executive
Officer and the defendant duly represented by J.L. Olivier concluded
a written agreement.
In terms of the written agreement the defendant
was appointed as a service provider for the debt collection or
recovery services
on behalf of the plaintiff. The material express
provisions alternatively implied terms of the written agreement are
set out fully
in paragraph 6 and succeeding paragraphs of the
particulars of claim. I pause to mention that the defendant was
tasked with the
responsibility to collect and recover debt due to the
plaintiff during the subsistence of the agreement.
[3]
It is further averred by the plaintiff that the written agreement
expired by effluxion
of time on 22 October 2015. The defendant did
not hand over the debtors’ accounts to the plaintiff as
required. Despite written
request to comply with the provisions of
the written agreement, the defendant failed to adhere to the
hand-over of the Debtors
Accounts and other particulars. That is the
crux of the breach alleged to have been committed by the defendant.
As a result of
the breach, the plaintiff claims damages in the
staggering sum of R86,706,183.91.
[4]
It is common cause that the
defendant served and filed a notice of intention to defend.
It is
safe to assume that the main allegations constituting the claim are
denied by the defendant. The defendant complained that
it cannot
plead. On the basis of these contestations, the plaintiff amended its
particulars of claim and subsequently served and
filed the amended
papers. The pleadings have been properly amended. Despite the
amendments, the defendant still insists that the
pleadings are
excipiable on the basis that the particulars of claim are vague and
embarrassing.
Arguments
[5]
The plaintiff argued that the exception should be dismissed with
costs because it
is bad in law. The reasoning behind it is that the
defendant excepted to the particulars of claim pre-amendment. The
order sought
is as if the amendment did not occur or does not exist.
In that case the exception constitutes an irregular step. In
contrast,
the defendant argued that the point relating to an
irregular step is ill-advised and that the pleadings are still
inadequate even
after amendments.
[6]
Nothing really turns on this argument. I agree with counsel for the
defendant that
this was ill-advised. The defendant’s exception
clearly refers to the amended particulars of claim. There can be no
confusion
that the defendant is excepting to the pre-amendment
particulars of claim. I have no difficulty in disposing this point on
behalf
of the plaintiff and proceeding to the crux of the matter
before court.
Legal
position
[7]
Exceptions in general are governed by the provisions of Uniform Rule
23 which reads
as follows: -
“
(1) Where any
pleading is vague and embarrassing, or lacks averments which are
necessary to sustain an action or defence, as the
case may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto
and may apply to
the registrar to set it down for hearing within 15 days after the
delivery of such exception…
(2)(a) …,
(b) the court shall not
grant the application unless it is satisfied that the applicant will
be prejudiced in the conduct of any
claim or defence if the
application is not granted.
[8]
The applicable legal position was set out succinctly in the heads of
argument by both
counsel. It is trite that pleadings must be drafted
in a lucid, logical and intelligible manner. This means that the
cause of action
must be clearly identifiable from the factual
allegations made.
[1]
The purpose
of this requirement is to avoid the element of surprise to the other
side and curb what Wessels JA referred to as
“…
more in the nature of a rambling preview of the evidence proposed to
be adduced at the trial than a statement of
the material facts relied
upon as a basis for the relief claimed by the appellant, as plaintiff
in the action.”
[2]
[9]
The onus squarely rests on the defendant to show that the particulars
of claim upon
every interpretation which the pleading can reasonably
bear, the pleading is vague and embarrassing thus disclosing no cause
of
action. Further that such embarrassment will cause prejudice.
[3]
That is trite in our law. The question to be asked is whether the
plaintiff has not pleaded material facts in the summons which
on
every interpretation can be said to disclose no cause of action.
[10]
There is no exhaustive test of what will constitute sufficient
particularity. The requirement
is that the complete cause of action
must be pleaded clearly identifying the issues relied upon. Obviously
a pleading will become
excipiable if no admissible evidence led on
the pleadings can disclose a cause of action.
Grounds
of complaint
[11]
The defendant raised many complaints/objections to the particulars of
claim. One of the offending
paragraphs against which the exception is
raised is paragraph 3 which reads as follows: -
“
At all material
times hereto and during 2013, at Bloemfontein, the Plaintiff and the
Defendant entered into written Debt Collection
Agreement (hereinafter
referred to as “the agreement”).”
[12]
The core of the complaint is that the written agreement at the centre
of this litigation is undated.
Key reference is made to clause 25.6
which provides that the written agreement constitutes the entire
agreement between the parties
and supersedes all prior
representations, negotiations, communications concerning the subject
matter of the agreement.
[13]
The defendant complains about paragraph 6 as if it seeks variation of
the written agreement.
I am of the view that this is a technical
objection that is vague in itself. The pleading as it stands complies
with the requirements
of Uniform Rule 18(4). The averments made
dealing with the existence of an agreement between the parties are
made to sustain a
cause of action. It cannot be said that the
defendant is unsure of a case that it is called to meet.
[14]
The approach adopted by the defendant is wrong by referring to
certain paragraphs in isolation
when it is clear that the entire
document must be interpreted as it stands. At this stage, this court
is not called up to adjudicate
whether the agreement between the
parties is valid or not. The objections seem to be that the facts
pleaded are inconsistent with
the provisions of the agreement. All
objections which in my view go to the core of the interpretation of
the written agreement
are ill-founded. My take is that this will be
arguable during the trial.
[15]
The rest of the objections touches on the alleged breach and
cancellation of the agreement. This
goes to the core of the parties’
rights and obligations as stipulated in the agreement. This is a
matter of argument than
a pleading. There is a slight point referring
to the further agreement. That can easily be dismissed on the basis
that it is not
the case for the plaintiff. The plaintiff has pleaded
setting out the full details of the breach and cancellation as well
as circumstances
under which they took place. Anything further will
be cleared by admissible evidence during the trial. The particularity
required
in the particulars of claim is beyond doubt.
[16]
The court is unconvinced that the defendants have discharged the
necessary onus and the exception
ought to fail.
[17]
The order is as follows: -
17.1. The exceptions are
dismissed with costs.
M.A.
MATHEBULA, J
On
behalf of the excipient / defendant:
Adv.
S. Grobler SC
Instructed
by:
Cliffe
Dekker Hofmeyr Incorporated
C/O Webbers Attorneys
BLOEMFONTEIN
On
behalf of the respondent / plaintiff:
Advs. C. Snyman & J.M.C. Johnson
Instructed
by:
Phatsoane
Henney Incorporated
BLOEMFONTEIN
[1]
Trope v South African Reserve Bank and Another and 2 Other Cases
1992 (3) SA 208
(T) at 210G-H.
[2]
Moaki v Reckitt and Colman (Africa) Ltd and Another
1968 (3) SA 98
(A) at 102A-B.
[3]
Eskom Holdings v Lesole Agencies CC
In
re
:
Lesole Agencies v Eskom Holdings (2555/2016)
[2017] ZAFSHC 171
(28
September 2017).