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[2021] ZAGPPHC 80
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Lamin8 Window Film CC v Custom Protection Products CC and Others (24675/2019) [2021] ZAGPPHC 80 (10 February 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED:
10/2/2021
Case
number: 24675/2019
In
the matter between:
LAMIN8
WINDOW FILM CC
Plaintiff/Excipient
(Registration
number: 2008/039218/23)
And
CUSTOM
PROTECTION PRODUCTS CC
First Defendant/Respondent
(Registration
number: 2009/116105/23)
MEYER
HELGARD PHEIFFER
Second Defendant/Respondent
(Identity
number: [….])
LILANI
PHEIFFER-HEATH
Third Defendant/Respondent
(Identity
number: [….])
JUDGEMENT
MULLINS
AJ
INTRODUCTION:
[1]
The plaintiff in this matter, Lamin8 Window Film CC, has raised an
exception against
the counterclaim of the first defendant, Custom
Protection Products CC, on the grounds of vagueness and
embarrassment, alternatively
failure to disclose a cause of action.
[2]
The parties agreed in their practice notes that I might decide the
matter on the strength
of the papers (including their heads of
argument), without the need for oral argument. The matter is not
particularly complex,
and in the circumstances I was prepared to do
so.
THE BACKGROUND TO
THE EXCEPTION:
[3]
The plaintiff sues the first defendant (together with two other
defendants as sureties;
its claim against them is not at issue in
this exception) for payment of R406 349.11, for goods sold and
delivered by the plaintiff
to the first defendant over the period
December 2018 and January 2019, in the form of automotive protective
film.
[4]
The defendants filed a plea, together with a counterclaim by the
first defendant.
[5]
As pointed out above, the exception is directed at the counterclaim.
THE FIRST
DEFENDANT’S COUNTERCLAIM:
[6]
The counterclaim incorporates certain admitted paragraphs of the
particulars of claim,
and one paragraph of the plea.
[7]
So read together, the counterclaim is broadly to the effect that (a)
in 2016, the
plaintiff appointed the first defendant as the
plaintiff’s sole accredited marketer and installer in South
Africa of a product
described as XPel Ultimate Paint Protection Film
(“XPel Ultimate”), (b) the first defendant purchased
protective film
from the plaintiff over the period December 2015 to
February 2017, (c) what the plaintiff actually provided to the first
defendant
wasn’t XPel Ultimate but a lesser product intended
solely for training purposes and not for the retail market called
XPel
F8000 Paint Protection Film (“XPel F8000”), and (d)
this was a result of misrepresentation as to what was being sold
and
delivered, causing the first defendant to suffer damage in the total
amount of R7 013 882.34, comprised of (i) the difference
between
the R2 798 562.13 which the first defendant paid for the
film (thinking it was XPel Ultimate) and the R1 399 281.06
(50%, rounded off downward) it would have paid had it known that what
it was purchasing was XPel F8000, i.e. R1 399 281.07,
(ii)
R107 031.00 for the cost of replacing already-installed XPel
F8000 on motor vehicles with the correct XPel Ultimate,
and (iii)
R5 507 570.27 for the prospective costs of removing XPel F8000
from motor vehicles onto which it has been fitted,
and replacing it
with XPel Ultimate.
THE EXCEPTION:
[8]
The exception consists of three grounds, each to the effect that the
counterclaim
is either vague and embarrassing, or doesn’t
disclose a cause of action.
[9]
These three grounds are the following:
(a)
The first ground relates to the claim for R1 399 281.07.
It is to the effect
that the bald allegation that XPel F8000 film was
delivered over the period December 2015 to February 2017 doesn’t
enable
the plaintiff to determine how much of the alleged debt might
have been extinguished by prescription, given that the counterclaim
was delivered on 23 October 2019.
(b)
The second and third grounds are similar. They are to the effect that
the allegations relating
to the claims for R107 031.00 and R5 507
570.27 are defective firstly in that they are “insufficient to
sustain a cause of
action in delict against the plaintiff in that the
first defendant has failed to make the necessary allegations of
causality and
damages arising from the alleged wrongful conduct [or
to] …. allege any facts in support of a claim concerning the
replacement
installation of protective film on any vehicles”,
and secondly in that it is unclear how the amounts of R107 031.00
and R5 507 570.27 are comprised.
FIRST THE
QUESTION OF DISCLOSURE OF A CAUSE OF ACTION; THEN THE QUESTION OF
VAGUENESS AND EMBARRASSMENT:
[10]
Although the exception is raised on the grounds of vagueness and
embarrassment first, and failure
to disclose a cause of action only
in the alternative thereto, I find it more convenient (and indeed
more logical) to approach
it in the opposite order, viz first whether
the grounds of exception are good in respect of the disclosure of a
cause of action,
and second whether the grounds are good in respect
of vagueness and embarrassment.
THE TEST ON
EXCEPTION:
[11]
The law is clear to the effect that in considering an exception on
the grounds of a failure to
disclose a cause of action, the court
must accept the allegations pleaded by the party against whom
exception is taken as true.
See
Hlumisa Investment Holdings (RF)
Ltd and Ano v Kirkinis and Others
2020 (5) SA 419
(SCA) in
paragraph [22]:
In
deciding an exception a court must take the facts alleged in the
pleading as being correct. It is for the excipient to satisfy
the
court that the conclusion of law set out in the particulars of claim
is unsustainable …. The facts are what must be
accepted as
correct; not the conclusions of law.
ON THAT BASIS,
ARE THE GROUNDS OF COMPLAINT GOOD IN RELATION TO THE NEED TO DISCLOSE
A CAUSE OF ACTION?
[12]
I am satisfied that the counterclaim discloses a cause of action.
[13]
In the first place, and with reference to the first ground of
complaint outlined in paragraph
9 above, there is no principle of law
or of procedure which requires a pleader to assist his opponent to
raise prescription against
him.
[14]
The burden of proving prescription rests with the party who alleges
it (see
Gericke v Sack
1978 (1) SA 821
(A)), and it is not for
the first defendant to assist the plaintiff by making allegations
that would render the plaintiff’s
task in raising and proving
prescription against the first defendant’s counterclaim easier.
[15]
The counterclaim was delivered on 23 October 2019. Three years before
that (i.e. the normal prescription
period outlined in
Section 11(d)
of the
Prescription Act 68 of 1969
; assuming for those purposes that
prescription began running three years before the counterclaim was
filed, notwithstanding the
provisions of
Section 12(3)
or
Section
12(2)
of the
Prescription Act) will
have commenced on 24
October 2016.
[16]
Apart from the fact that it is evident from the counterclaim,
applying the credulous test outlined
in paragraph 11 above, that the
first defendant won’t have known at the time that it was
purchasing XPel F8000 instead of
XPel Ultimate, so that one imagines
that
section 12(3)
(and, given the allegations of misrepresentation,
perhaps even
Section 12(2))
of the
Prescription Act would
come into
play, there is nothing whatsoever to prevent the plaintiff from
pleading prescription in respect of so much of the counterclaim
as
relates to product delivered prior to 24 October 2016 (without
stipulating the exact amount in question; because the plaintiff
won’t
know what that amount is. It isn’t necessary for the
plaintiff to be specific as to the exact amount in
question), and
from thereafter establishing through the process of discovery and
perhaps the
Rule 21(2)
process how much of the claims relates to a
debt which arose before 24 October 2016.
[17]
So much for the first ground of complaint.
[18]
The second and third grounds of complaint have two components, viz
(a) an alleged failure to
make out a claim in delict, and (b) failure
to disclose how the amounts of R107 031.00 (past replacement of
installed XPel F8000
with XPel Ultimate) and R5 507 570.27
(envisaged future replacement of installed XPel F8000 with XPel
Ultimate) are comprised.
[19]
I don’t agree that the counterclaim fails to make out a claim
in delict. In this regard:
(a)
As was said by Blieden J in
Southernport Developments (Pty) Ltd v
Transnet Ltd
2003 (5) SA 665
(W), the court must not look at the
pleading with a magnifying glass. Minor blemishes in a pleading can
be cured by further particulars,
and should not be the subject of
exception.
(b)
Accepting the factual allegations contained in the counterclaim to be
true as per the approach
outlined in paragraph 11 above, it is plain
to me that the counterclaim is indeed a claim in delict, based on
intentional misrepresentation
(telling the plaintiff that what was
being sold and delivered was XPel Ultimate, whereas what was in fact
being provided was XPel
F8000).
(c)
On that basis, I am without any difficulty able to discern a cause of
action in respect
of all three components of the counterclaim.
(d)
As far as the claim for R107 031.00 is concerned, I have no
difficulty in discerning from
the counterclaim that what the first
defendant is saying is that (a) it thought that what it was
purchasing from the plaintiff
was XPel Ultimate, (b) for that reason,
what it represented to clients it was installing on their vehicles
was XPel Ultimate (this
will follow automatically from the previous
fact; it isn’t stated in the particulars of claim, which would
have been much
neater had it been stated. But it wasn’t
essential to be stated), (c) it transpires that what it was
purchasing and
what it was installing was in fact the lesser XPel
F8000, and (d) it had to go back to certain of those clients and
replace what
it had installed with what it should have installed, at
a total cost of R107 031.00.
(e)
The same applies to the claim for R5 507 570.27, save that there
we are dealing with
an anticipated future cost, in terms of replacing
the installations of other clients.
(f)
Causality and damage arising from allegedly wrongful conduct is,
thus, alleged (whether
it is convincingly alleged is of course
another matter, on which I will not touch).
[20]
As far as the second component is concerned, whilst it is so that
Rule 18(10)
requires a party suing for damages to “set them out
in such a manner as will enable the [other party] … reasonably
to assess the quantum thereof”, failure to comply with this
rule doesn’t constitute a failure to make out a cause of
action
(I will deal below with whether it results in vagueness and
embarrassment).
[21]
It follows that in my view none of the grounds of exception are good
in respect of the alleged
failure of the counterclaim to disclose a
cause of action.
VAGUE AND
EMBARRASSING?
[22]
The authorities are to the effect that questions of whether a
pleading is vague and embarrassing
must be determined on real
considerations of usefulness and prejudice.
[23]
See in this regard Makgoka J’s very useful exposition of the
applicable principles on pp
374-375 of
Living Hands (Pty) Ltd and
Ano
2013 (2) SA 368
(GSJ) (in what follows, I have quoted only
those aspects of the judgement that relate to the vague and
embarrassing issue):
Before I consider
the exceptions, an overview of the applicable general principles
distilled from case law is necessary:
(a)
….
(b)
The object of an exception is not to embarrass one’s opponent
…, but
to … protect oneself against an embarrassment
which is so serious as to merit the costs even of an exception.
(c)
….
(d)
….
(e)
An over-technical approach should be avoided because it destroys the
usefulness of
the exception procedure, which is to weed out cases
without legal merit.
(f)
….
(g)
Minor blemishes and un-radical embarrassments caused by a pleading
can and should
be cured by further particulars.
[24]
On that basis, my reasoning outlined above with regard to the first
cause of complaint, and the
second and third causes of complaint
insofar as they relate to the making out of a claim in delict,
applies equally here –
there is no substance to any of these
complaints.
[25]
Specifically, and with reference to
Rule 18(4)
(on which the
plaintiff’s heads of argument relied in this regard), I am
satisfied that the counterclaim outlines the necessary
material facts
to make out a claim with sufficient particularity to enable the
plaintiff to reply thereto.
[26]
Turning to the fact that the counterclaim doesn’t furnish
detail of how the amounts of
R107 031.00 and R5 507 570.27 are
comprised, and what I said in paragraph 20 above:
(a)
I don’t think it can be disputed that the counterclaim doesn’t
set these claims
out in such a manner as would enable the plaintiff
reasonably to assess the quantum thereof, were that what the
plaintiff wanted
to do.
(b)
It follows that, although perhaps somewhat technical (given that the
plaintiff probably
contests the underlying allegations in any event,
so that it probably has no real interest in how the counterclaim is
actually
comprised), a
Rule 30(1)
objection could be taken to the
counterclaim. But that is not what the plaintiff has done.
(c)
There is authority to the effect that failure to comply with the
requirements of
Rule 18(10)
can found an exception on the grounds of
vagueness and embarrassment. See the judgement of Southwood J in
Nasionale Aartappel Kooperasie Bpk v PriceWaterhouseCoopers Ing en
Andere
2001 (2) SA 790
(T) at 797 and further.
(d)
But as Southwood J said in that judgement, quoting
Imprefed (Pty)
Ltd v National Transport Commission
1993 (3) SA 94
(A) at 1070H,
the degree of precision required of a pleader depends on the
circumstances of each case.
(e)
In this context, I can’t see that the first defendant’s
failure to have set
the damages out in such a manner in the
counterclaim as to enable the plaintiff reasonably to assess the
quantum thereof has caused
the plaintiff any embarrassment or
prejudice. I am sure the plaintiff takes issue with the first
defendant’s contentions
of misrepresentation. I don’t
believe the plaintiff has any need to assess the first defendant’s
counterclaim in terms
of value. The plaintiff is not inhibited in
pleading to the counterclaim. To uphold the exception on the grounds
that non-compliance
with
Rule 18(10)
equates
in these
circumstances
to vagueness and embarrassment, would be to elevate
form over substance.
[27]
In the premises, I am also satisfied that the grounds of exception
are not good when viewed through
the prism of vagueness and
embarrassment.
CONCLUSION:
[28]
It follows that the exception must be dismissed. There is no reason
why costs shouldn’t
follow the result.
[29]
In the premises, I order that the Plaintiff’s exception to the
first defendant’s
counterclaim is dismissed, with costs.
JF MULLINS
ACTING JUDGE OF
THE HIGH COURT
Appearances:
Plaintiff/excipient’s
counsel:
AL Ashworth
Defendant/respondent’s
counsel:
G Weich
Plaintiff/excipient’s
attorneys:
WITZ INC
Defendant/respondent’s
attorneys:
HERMAN
VERMAAK ATTNYS
Date of
hearing:
Week of 8-12 February 2021
Date of
judgement:
10
February 2021