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[2022] ZAECELLC 2
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Mayibuye Transport Corporation v Business Connexion (Pty) Ltd (EL753/2018) [2022] ZAECELLC 2 (27 January 2022)
IN
THE HIGH COURT OF SOUTH AFRICA
EAST
LONDON CIRCUIT LOCAL DIVISION
CASE
NO. EL753/2018
In
the matter between:
MAYIBUYE
TRANSPORT CORPORATION
Plaintiff/Respondent
and
BUSINESS
CONNEXION (PTY)
LTD
Defendant/Excipient
JUDGMENT
STRETCH
J.:
[1]
The defendant excepts to the plaintiff’s summons on 11 grounds
that
it is vague and embarrassing; alternatively, that it lacks
averments which are necessary to sustain an action, purportedly in
terms
of rule 23(1) of the Uniform Rules of this court. I will
traverse and dispose of each ground seriatim:
a.
The first ground
It is alleged that the
plaintiff has been cited as a juristic person established in terms of
the Ciskei Corporations Act 61 of 1981.
Because this act no longer
exists, the plaintiff’s
locus standi
is in question, and
as such, the claim fails to disclose a cause of action. I do not
agree. The plaintiff has averred that it is
a corporation and that it
is a juristic person. To my mind, these averments are sufficient to
establish legal standing. The defendant
is at liberty to deny the
averments. The invalidity of a statute as a defence should, in any
event, as a matter of course be raised
by way of a plea or a special
plea. The first ground falls to be dismissed.
b.
The second ground
The defendant claims that
because the plaintiff has failed to state where the agreement on
which it relies was entered into, it
is unaware of the nature of the
agreement on which the plaintiff relies. In support of this
contention, the defendant purports
to rely on rule 18(10), which in
essence deals with damages for personal injury. The relevant
sub-section as far as pleading is
concerned, is rule 18(6), which
states that a party relying on a contract shall state whether the
contract is written or oral,
and when, where and by whom it was
concluded. The sub-section also states that if the contract is a
written one, a true copy thereof
or the part relied on shall be
annexed to the pleading. The plaintiff has, prima facie, complied
with the substance of rule 18(6)
by annexing a copy of the agreement
to its claim. This discloses that an agreement was entered into at
Midrand on 19 October 2016.
In paragraph 5 of its claim the plaintiff
discloses when the agreement was entered into, and by whom the
parties were represented
at the time. It is pleaded that this was
done in contemplation of a letter of award in terms of which the
plaintiff, on 19 August
2016, appointed the defendant to deliver
specified goods and services to the plaintiff. These averments are
not vague and embarrassing.
The second ground falls to be dismissed.
c.
The third ground
The plaintiff has pleaded
that the agreement was concluded in October 2016. This is evident ex
facie the copy of the agreement annexed
to the claim. The plaintiff
further pleaded that it was a material condition of the agreement
that the contract would commence
a month earlier. It is averred that
it does not appear ex facie the claim, whether the contract and the
agreement are the same
thing, and that if they are the same, whether
the contract was intended to apply retrospectively. On the other
hand, it is contended
on the plaintiff’s behalf that on a
proper construction of the particulars of claim as a whole, it is
clear that the plaintiff
relies on the service level agreement
annexed to its claim. I am not inclined to agree. The defendant is
entitled to understand
why the plaintiff introduced 14 September 2016
in its particulars of claim, when the defendant was allegedly
appointed on 19 August
2016, and when the parties entered into the
service level agreement on 19 October 2016.
An exception that a
pleading is vague and embarrassing is intended to cover the case
where, although a cause of action appears in
the summons, there is
some defect in the manner in which it is set out, which results in
embarrassment to the defendant.
[1]
Averments in a pleading which are contradictory (as in the matter
before me), and which are not pleaded in the alternative, may
well be
construed as vague and embarrassing.
[2]
The particulars read together with the annexed agreement are at the
very least vague in that they are capable of more than one
meaning.
[3]
Simply stated, any
reader of the claim together with the agreement will not be able to
distill from these documents a clear, single
meaning. I am satisfied
that the commencement date of the contract is a relevant term
thereof, and that the defendant may well
be prejudiced if it is not
clarified. I say this, because the plaintiff has alleged in its claim
that the defendant has “admitted”
the terms of the
agreement including its obligation to supply the plaintiff with fully
licenced software “for a period of
three years”. It is
accordingly of particular significance that the ambiguity regarding
the commencement of the running of
the three year period is
clarified.
[4]
The third ground
serves to be upheld.
d.
The fourth ground
The plaintiff has pleaded
that a material term of the agreement was that the defendant (which
should presumably read the plaintiff),
would pay all monies due from
time to time as and when the defendant requested it to do so. The
defendant avers that it is not
clear what money is referred to. I do
not agree. The service level agreement provides for payment by the
plaintiff for all support
costs “at the agreed interval”.
Clause 8 of the agreement deals fully with consideration and payment
terms. An agreement
which may be awkward to decipher (which may or
may not be the position in the case before me), should not be
construed as making
out a case that the pleadings are vague and
embarrassing, or that they fail to make out a cause of action.
[5]
The fourth ground of exception falls to be dismissed.
e.
The fifth ground
The plaintiff has pleaded
that all licences in respect of the software for the infrastructure
provided would be paid by the defendant,
and that all software
provided would be licenced for three years. According to the
defendant, the identity of the licence provider(s),
the manner in
which licences were to be provided, the amounts to be paid, the
identity of the payee(s), the due date(s) for payment,
and the basis
for the defendant’s obligation to pay, are issues which are not
a model of clarity, and as such, the pleading
is vague and
embarrassing.
To my mind this
information is not required in order for the defendant to plead. The
pleading contains sufficient particularity
to enable the defendant to
plead thereto as required by the provisions of rule 18(4). The fifth
ground likewise has no merit.
f.
The sixth ground
The plaintiff has made an
averment that it has complied with all its obligations in terms of
the contract, including paying all
monies due to the defendant in
accordance with and in terms of the contract. The defendant holds the
view that because the plaintiff
is relying on breach of contract, it
must set out the material terms of the contract, how it has performed
in terms thereof, and
to what extent the defendant is guilty of
non-performance. In particular, the defendant contends that the basis
for averring that
it was owed money, when and to whom the plaintiff
paid this money, the individual amounts that were paid, and whether
the defendant
performed in part and was thus paid in part, or whether
the defendant performed in full and was thus paid in full, has not
been
clarified. In the circumstances, so it is alleged, the plaintiff
has not adequately set out its performance in terms of the contract,
and the claim accordingly lacks sufficient particularity to enable
the defendant to plead to it.
Once again I do not
agree. The paragraph which forms the subject matter of this ground of
exception, reads as follows:
‘
The material terms
of the agreement relevant to the issue were that …..
All licences in respect
[in respect] of the software for the infrastructure provided would be
paid by the defendant and all software
provided will [be]
[6]
licenced for a period of three years.’
Clause 4.4 of the annexed
agreement deals fully and comprehensively with everything required of
the plaintiff, including the making
of payments at agreed intervals.
Clause 5 of the agreement deals fully and comprehensively with all
issues pertaining to the licencing
of software and the fact that the
plaintiff, as the client, is liable to the defendant (the service
provider) for all associated
licence fees. Clause 8 of the agreement
covers issues pertaining to consideration and payment terms. Annexure
A to the agreement
sets out the specific services to be provided by
the defendant to the plaintiff under the agreement. In particular,
clause 12 thereof
states that the defendant will “subscribe and
on-board” the plaintiff with 140 user licences for Microsoft
Office 365
E3 SKU on a three year subscription plan. Thus the
plaintiff has simply repeated a material term of the annexed contract
in its
particulars of claim. I fail to understand on what basis the
defendant maintains that it cannot agree or disagree that this is
indeed a material term. This ground of exception likewise, falls to
be dismissed.
g.
The seventh ground
In paragraph 8 of its
claim, the plaintiff makes the following averment:
‘
The defendant has
failed alternatively neglected further alternatively refused to
comply with all its obligations in terms of the
contract in that the
defendant has failed to ensure that the software supplied by it
[is]
[7]
licensed
in
terms of the requirement of the licensor
[8]
.
’
The defendant has pointed
out that the plaintiff has failed to identify the licensor and the
licensor’s requirements, whether
there was an agreement with
this licensor and if so, what the terms of the agreement were, to
enable the defendant to plead to
the averment that the software was
not licenced according to specific terms. I am inclined to agree. The
term “licensor”
has not been defined or referred to
anywhere in the agreement or the annexure thereto. Nor has it been
used elsewhere in the pleadings
to assist the defendant to determine
the identity of this entity. This vagueness and embarrassment strikes
at the root of the plaintiff’s
cause of action as pleaded, and
the ground of exception accordingly serves to be upheld. It goes
without saying that if the licensor
and the plaintiff are the same
entity, the plaintiff need go no further than to make this averment.
However, if the licensor happens
to be another entity, the plaintiff
must state what the “requirement of the licensor” is, in
order for the defendant
to plead.
h.
The eighth ground
The plaintiff, in its
claim, has made the following averment:
‘ …
the
Defendant has
admitted
[9]
[the]
[10]
terms of the agreement including its obligation to supply the
Plaintiff with fully licenced software Microsoft Office for a period
of three years.’
The defendant alleges
that the plaintiff has not indicated when this admission was made. It
is trite that the onus is on the defendant
as the excipient to show
both vagueness amounting to embarrassment and embarrassment amounting
to prejudice. Annexed to the claim
is an agreement purportedly
entered into between the parties. It seems to me that the plaintiff
has used the word “admitted”
somewhat loosely to mean
“agreed” (in terms of the agreement). Whether that is so,
remains a question of interpretation.
The use of the term does not
however, render the pleading excipiable. The defendant is at liberty
to supplement its plea by way
of a simple explanation of its
interpretation of the word, should it not wish to pin its colours to
the mast in respect of, what
seems to me, to be an obvious
interpretation. This ground of exception too, must fail.
i.
The ninth ground
The plaintiff has claimed
R1 804 707,61 from the defendant, alleging that it was
constrained to pay this sum in order
to procure the software licence
which the defendant was meant to procure. The defendant has alleged
that the plaintiff has “failed
to create a causal link”
between the alleged breach and the damages suffered, in that it has
not shown how this amount is
computed, where, when and from whom the
plaintiff bought the software, and what type of software was
purchased. Thus, so it is
contended, the plaintiff has not managed to
show that there is a link between the procurement of the software and
the defendant’s
indebtedness to the plaintiff. This being the
case, so it is argued, the defendant has failed to set out averments
necessary to
sustain a cause of action, alternatively, the pleading
is vague and embarrassing and the defendant would be prejudiced by
pleading
thereto.
To my mind, it is the
defendant which ought to be embarrassed as a result of having
attempted to raise an argument so entirely void
of substance. I say
this for the following reasons. Paragraph 12 of the plaintiff’s
claim is clear. It says this:
‘
The defendant is
therefore indebted to the Plaintiff in the sum of R1 804 707,61
… being the costs to the Plaintiff
of procuring the requisite
software license which the Defendant has failed and/or neglected
and/or refused to supply.’
Nothing could be clearer.
Should the defendant require further particulars for trial, it is at
liberty to invoke the provisions
of rule 21 and the rules relating to
discovery in due course. The exception stage is not the time for the
defendant to complain
that it does not have sufficient information
for trial purposes.
[11]
This
ground of exception falls to be dismissed.
j.
The tenth ground
This ground likewise
falls to be dismissed. The plaintiff, after having made it clear that
it had indeed paid the aforesaid sum
for the software licence out of
its own coffers, elected to motivate the quantum of this expense by
advancing a suggestion that
the amount it spent “is based on
the costs of a license when purchased in the open market excluding
the costs of installation”.
The defendant now claims that it
cannot be determined from a reading of this paragraph whether the
plaintiff indeed incurred this
cost, and whether this cost was
incurred in the open market, and accordingly the pleading is vague
and embarrassing.
It is not necessary for
this court to restate the obvious. A perfectly clear and unambiguous
averment was made that the plaintiff
expended a specific amount which
was for the defendant’s account. Should the defendant have no
knowledge of the price of
such a licence in the open market, it is
quite at liberty to say so.
k.
The 11
th
ground
The plaintiff has claimed
interest at the legal rate. The defendant has raised a spurious
ground of exception that the plaintiff
has failed to disclose what
the legal rate is. Mercifully this ground was not pursued in the
defendant’s heads of argument
or from the bar. I need say no
more.
[2]
The plaintiff has been substantially successful in resisting the
defendant’s
extraordinary claims purportedly raised under the
auspices of rule 23. I see no reason why costs should not follow the
result.
ORDER:
(i)
The first, second, fourth, fifth, sixth, eighth, ninth, tenth and
11
th
grounds of exception as set forth at pages 38 to 45
of the indexed papers are dismissed.
(ii)
The third and seventh grounds of exception as set forth at pages 39
and 42 of the indexed
papers are upheld.
(iii)
The plaintiff is granted leave to substitute the date of 14 September
2016; alternatively, to
disclose the source of this date, as set
forth at paragraph 6.2 of its particulars of claim, within ten days
of delivery of this
judgment.
(iv)
The plaintiff is granted leave to supplement paragraph 8 of its
particulars of claim by disclosing
the identity of the “licensor”
and, if necessary, to state the requirement of the licensor, as
envisaged at paragraph
1g of this judgment, within ten days of
delivery of the judgment.
(v)
The defendant is ordered to deliver its plea within ten days of the
delivery of the plaintiff’s
amended particulars of claim,
failing which it will be ipso facto barred.
(vi)
The defendant is ordered to pay the costs of the exception.
I.T.
STRETCH
JUDGE
OF THE HIGH COURT
Date heard: 2
December 2021
Date of delivery by way
of email to the attorneys of record: 27
January 2022
Counsel
for the excipient/defendant: Mr A. Mafu, instructed by Motalane Inc.
Attorneys (email
info@motlanelaw.co.za
,
Tel 012 362 6502) care of Bate Chubb & Dickson Inc. (email
lindeka@batechubb.co.za
;
Castro@batechubb.co.za
,
Tel 043 701 4500), EAST LONDON
Counsel
for the respondent/plaintiff: Mr M. Mayekiso, instructed by Mbabane &
Maswazi Inc. (email
admin@mslawyers.co.za
;
ref Mr Mbabane Tel 043 726 0058), EAST LONDON
[1]
See
Trope
v South African Reserve Bank
[1993] ZASCA 54
;
1993
(3) SA 264
(A) at 268F
[2]
Trope
above
at 211E
[3]
See
Callender-Easby
v Grahamstown Municipality
1981
(2) SA 810
(E) at 812H
[4]
See
Horwitz
v Hendricks
1928
AD 391
[5]
See for example the reasoning in
Francis
v Sharp
2004
(3) SA 230
(C) at 240F-G
[6]
The word “be” has been inserted for purposes of this
judgment only.
[7]
Inserted for completeness for purposes of this judgment only.
[8]
Emphasis added.
[9]
Emphasis added.
[10]
Inserted for completeness.
[11]
See
Venter
and Others NNO v Barrit
2008
(4) SA 639
(CPD) paragraph 14