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[2022] ZAECELLC 40
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Liesen Bitumen Holdings (Pty) Ltd v Expert Tech Maintenance Project (Pty) Ltd t/a Expert Tech Eng & Maint (EL 217/2021) [2022] ZAECELLC 40 (11 October 2022)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO. EL 217/2021
In
the matter between:
LIESEN
BITUMEN HOLDINGS (PTY) LTD
Plaintiff
(Excipient)
and
EXPERT
TECH MAINTENANCE PROJECT
(PTY)
LTD t/a EXPERT TECH ENG & MAINT
Defendant
(Respondent)
REASONS
FOR RULING
IN
INTERLOCUTORY APPLICATION
HARTLE
J
[1]
On 24 March 2022, after hearing argument in respect of an exception
pursuant to the
provisions of Rule 30, alternatively Rule 23, I
reserved my judgment but issued an order later on the same day in the
following
terms:
“
1.
The defendant’s plea is struck out for want of compliance with
Uniform Rule 18 (4), (5) and (6).
2.
The defendant is afforded an opportunity to amend its plea within
fifteen (15) days.
3.
The defendant is directed to pay the costs of the application.
4.
Any party requiring reasons may in writing request same within ten
(10) days.”
[2]
It’s instructing attorneys of Gqeberha requested reasons for my
judgment by way of
a letter.
[3]
These are them.
[4]
The parties were at odds regarding whether the defendant’s plea
complied with its duty to
plead in accordance with the provisions of
Rule 18 (4), (5) and (6), and whether it was excipiable as contended
for by the plaintiff.
[5]
The latter sues on a contract, the material terms of which are set
forth in its particulars
of claim. These terms are the pivot on which
its claim for remediation damages for defective performance rests.
The defendant in
its plea denied that an agreement as pleaded by the
plaintiff ever existed between the parties. It went further and
provided further
particularity to its denial emphasizing that there
was no duty on it to do so. In the process it alluded to an “actual
agreement”
that had been concluded between the parties
(elsewhere referred to as “the real agreement”), rather
than the one the
plaintiff had contended for in its particulars of
claim, although withholding details of when and where that agreement
had been
concluded and its essential terms so as to appreciate its
import in relation to the claimed defective performance.
[6]
The plaintiff raised its objection in terms of Rule 30 that the plea
constituted an irregular
proceeding for want of compliance with Rules
18 (4), (5) and (6) and asked that it be set aside as such. In a
separate objection
framed in terms of Rule 23, it complained that the
plea was excipiable in that it was vague and embarrassing,
alternatively lacking
in the necessary averments to sustain the
defence pleaded.
[7]
The practical complaint was that the defendant had failed to specify
whether the actual
agreement was written or oral, and if in writing,
to annex a true copy of the part relied upon in its plea. The
plaintiff’s
other concerns raised went to the lack of detail in
the impugned passages of the plea that would firstly assist it to
know what
the terms were of the “actual agreement” to
allow it to reply thereto; secondly, to identify which of the terms
of
the agreement contended for by it accorded or differed with those
of the “actual agreement” and; thirdly, to indicate
which
of the terms
on the defendant’s case
were supposedly
complied with so as to give flesh to its denial that it had rendered
defective or incomplete performance.
[8]
The plaintiff gave the defendant the customary opportunity to remove
the causes of complaint,
which chance it spurned. This culminated in
the delivery of both an exception and application in terms of Rule
30.
[9]
The
defendant opposed the matter on the pleadings as it was entitled
to.
[1]
[10]
The defendant denied that its plea was non-compliant with the
provisions of Rule 18 (4),
(5) and (6). Instead, so it was submitted,
in its plea it had clearly set out to explain why there was a denial
of the contract
relied upon by the plaintiff. Mr. Marais on its
behalf submitted further regarding the manner in which his client had
pleaded that
there was nothing lacking or vague in the plea and no
premise upon which it could be suggested that the plaintiff could be
embarrassed
thereby. To the contrary he submitted that since the
plaintiff bore the onus to allege and prove the conclusion of the
contract
sued upon and each of its terms, even if that might have
involved the proof of a negative, its coincidental mention of the
actual
or real agreement (the details of which it had no obligation
to expound upon since it could have simply denied the contract the
plaintiff purported to rely upon) could not have caused the plaintiff
(who bore the full onus to prove that agreement) any prejudice.
The
defendant considered that it had had no obligation to provide the
further particularity which it did and that the manner in
which it
had pleaded did not attract any onus to prove any contract. To the
contrary, so it was submitted, the defendant was doing
the plaintiff
a favour by pleading in a manner that would assist it at trial so
that it would not be taken by surprise at the factual
allegations
revealed through the qualification in its plea, this in the very
anticipation that it had an obligation in terms of
Rule 18 (5) not to
answer evasively.
[11]
In summary it asserted that the extent and manner of denial did not
cause the plaintiff
any prejudice and that it remained open to it to
simply deny the allegations set out in the particulars of claim aimed
at establishing
the alleged conclusion of the contract and the
claimed terms thereof as the premise against which the claimed
defective performance
fell to be measured.
[12]
Absent any serious prejudice in its view, it criticized the plaintiff
for adopting an overly
fussy and technical approach in complaining
about its plea which it was submitted detracted from the utility of
the exception procedure.
[13]
The standard against which a litigant is required to plead is set
forth in the relevant
paragraphs of rule 18 as follows:
“
18
Rules relating to Pleading generally
(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) When in any pleading
a party denies an allegation of fact in the previous pleading of the
opposite party, he shall not do so
evasively but shall answer the
point of substance.
(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.”
[14]
Also relevant to challenges under Rule 30 and to the present scenario
are the provisions
of Rule 18 (12) which provide that:
“
(12) If a
party fails to comply with any of the provisions of this rule, such
pleading shall be deemed to be an irregular
step and the opposite
party shall be entitled to act in accordance with rule 30.”
[15]
It follows that if the impugned provisions of a pleading are flawed
for want of compliance
with Rule 18 that this will render the
pleading deemed to be an irregular step, a taint which in itself
attracts prejudice.
[16]
The object of pleadings and the legal principles on which an
exception to a pleading may
be taken are well known and need not be
repeated here. Both counsel alluded to these in their submissions and
had no quarrel regarding
their import.
[17]
One of the
ways to view the standard of sufficiency of a pleading is to ask
whether, under the old practice of requesting particulars
in order to
plead, it would have been necessary for the party complained against
to supplement an incomplete or defective statement
by a request for
and supply of further particulars. The absence of such a procedure
presently available to the complaining party
to address such a
request for particulars indeed enhances the prejudicial aspect of a
pleader’s failure to comply strictly
with the requirements set
out in of Rule 18.
[2]
[18]
This appeared to me to be one of those cases.
[19]
Mr. Kotze who appeared on behalf of the plaintiff submitted that the
simple enquiry, in
the Rule 30 application, was whether the
defendant’s plea complied with the measure of rule 18 (4), (5)
and (6). It was common
cause that the defendant did not provide a
copy of the “actual agreement” or the “real
agreement” (assuming
these were the same) so one was evidently
in the dark as to what its terms were, leaving nothing against which
to measure the defendant’s
denial that it had delivered
incomplete or defective performance.
[20]
Mr Marais’ submission that it was not relying on the agreement
so had no obligation
to provide a copy or state its terms was without
merit. If the defendant needed to explain its denial, it made no
sense without
a reference to this other agreement. Without a point of
reference, the denial was on its terms vague and could not be replied
to.
One simply could not know in my view upon a perusal of the plea
which terms relied on by the plaintiff were in dispute, that quite
apart from knowing which terms the defendant was referring to in the
first place. It could therefore not have been suggested that
the
defendant had answered the point of substance. It had tried to,
earnestly so it seems, but had come up wanting. It also withheld
details of the other agreement that it was relying upon to explain
its denial or give it a proper context.
[21]
It was no surprise therefore that the plaintiff complained that it
could not meaningfully
reply to the plea, resulting in obvious
prejudice to it.
[22]
Mr. Kotze
further correctly submitted that the question of onus is irrelevant
to the enquiry whether the pleading conforms with
the subrules
because pleadings are based on facts in the first instance, and it is
to this premise one looks to understand the
conclusion of law which
it is asserted flows from the pleaded facts. A party must plead the
material facts upon which it relies
with sufficient clarity and
particularity to justify the conclusion of law it wishes a court to
draw from such material facts.
[3]
The present assessment was based on how it had actually pleaded.
[23]
Mr. Marais who appeared on behalf of the defendant argued conversely
that the question
of where the onus lies matters because the
pleadings by their very nature will be defined by what has to be
proven and by whom
it has to be proven but this was not the true
enquiry
in casu
. Rule 18 (6) behoved it to disclose the other
agreement and disclose its term not because it relied upon the
contract, but to explain
on the facts why the defective or incomplete
performance was being denied in relation to those claimed terms.
[24]
Mr. Marais complained that it was vagueness and confusion in the
manner pleaded by the
plaintiff itself that had rendered it prudent
for the defendant in all the circumstances to plead in the manner it
had. He conceded
that it would not have been proper to arrive at
trial with a bare denial without an explanation as to why there is a
denial.
[25]
Mr. Kotze fittingly in my view retorted that if the defendant had had
a quarrel with the
plaintiff’s particulars of claim being a
model of clarity that the defendant should have elected then to
except or complain
of any perceived irregularity rather than having
pleaded as it had. The point is that in pleading as it did it had
chosen the bed
it would lie on and was obliged to accept the
consequence that its plea, without any detail of the real agreement
which it referenced,
meant that it fell short of complying with the
provisions of Rule 18 (4), (5) and (6).
[26]
This manner of pleading for the reasons stated above also conduced to
their vagueness and
the raising of a defence that was inexplicable
without reference to the details of the other agreement contended
for.
[27]
The obvious
prejudice to the plaintiff by the non-compliance with the relevant
rules (
prima
facie
established by the import of sub-rule (12)) could not be convincingly
gainsaid by the defendant.
[4]
[28]
In the result and relying on the powers afforded to the court in
terms of Rule 30 (3) I
issued the order which I did.
B
HARTLE
JUDGE
OF THE HIGH COURT
DATE
OF HEARING:
24
March 2022
DATE
OF ORDER:
24 March 2022
DATE
OF REQUEST
FOR
REASONS:
30 March 2022
DATE
OF REASONS:
11 October 2022
APPEARANCES
:
For
the plaintiff: Mr. D Kotze instructed by Bax Kaplan Russell Inc.,
East London (ref. Mr. S Clarke).
For
the defendant: Mr. P Marais instructed by Molenaar & Griffiths
Port Elizabeth Inc. care of Bate Chubb & Dickson, East
London
(Mr. Strydom).
[1]
See
Chelsea
Estates and Contractors CC v Speed-O-Rama
1993 (1) SA 198
(E) at 202 E - F;
Scott
& Another v Ninza
1999 (4) SA 820
(E) at 823 C; and my judgment in Z Sihleko & Z N
Ngcobe v Member of the Executive Council for Health, Eastern Cape
Province
(Bhisho High Court Case No’s. 1016 and 1017/2018 - 6
June 2019) at paras [10] – [14]. A notice in terms of rule 30
is not required to be supported by an affidavit neither opposition
thereto unless it is exceptionally justifiable for the parties
to
file affidavits in support of their cases. The defendant said what
it wanted to from the bar, namely that it had complied
adequately
with the relevant sub-rules, that though its plea might be
confusing, this was only by reason of the fact that the
particulars
of claim it was pleading to were not a model of clarity but had
entailed “a strange manner of pleading on the
part of the
plaintiff” that required an explanation for its denial. It was
explained that the other contract contended
for by the defendant
which it said existed did not require elaboration because
it
was not relying on that contract for it defence. It was not trying
to enforce it. Prejudice was also denied.
[2]
Minister
of Law and Order v Jacobs
1999 (1) SA 944 (O).
[3]
Mabaso
v Felix
1981 (3) SA 865
(A) at 875.
[4]
See in this respect
Nasionale
Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing &
Andere
2001 (2) SA 790
(T) at 805 G – I.