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[2021] ZAGPPHC 158
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Bekker v Apprica Labs (Pty) Ltd and Another (74482/2014) [2021] ZAGPPHC 158 (9 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 74482/2014
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES:NO
REVISED:NO
DATE:
9
MARCH 2021
In the matter between:
REMERES
BEKKER
Plaintiff/ Respondent
and
APPRICA
LABS (PTY) LTD
First Defendant / Applicant
THOUGHT
INC (PTY) LTD
Second Defendant/ Excipient
(This
judgment is handed down electronically by circulation to the parties’
legal representatives by email and by uploading
it to the electronic
file of this matter on CaseLines. The date for hand-down is
deemed to be 9 March 2021.)
JUDGMENT
MIA
J
:
[1]
This is an exception against the plaintiff's
particulars of claim premised on the basis that it lacks averments
necessary to sustain
a cause of action against the second defendant.
The full grounds set out in the exception are:
“
1.
On or about 14 January 2019 the Plaintiff sued out Summons and
Particulars of Claim in the above-named
matter.
2.
It is pleaded by the Plaintiff that the First Defendant obtained the
services of the Second Defendant
in order to procure assistance for
the development of the app which forms the basis of the Plaintiffs
claim in the action.
3.
The Plaintiff fails to plead any contractual nexus between itself and
the Second Defendant.
4.
The Plaintiff fails to plead any contractual obligations owed to it
by the Second Defendant,
5.
The Plaintiff fails to plead that the Second Defendant failed to
fulfil any contractual obligations
owed by the Second Defendant to
the Plaintiff,
6.
The Plaintiff falls to set out how and in what respects the Second
Defendant is in any way Indebted
to the Plaintiff.
7.
Accordingly, the Particulars of Claim do not make out a cause of
action against the Second Defendant.”
[2]
The excipient’s main contention in the
exception is therefore simply that the plaintiff’s
particulars of claims
fails to make out a claim against the
second defendant. The plaintiff failed to make reference to the
second defendant in any of
the paragraphs in paragraph four of the
particulars of claim where the plaintiff refers to the agreement
entered into between the
plaintiff and the first defendant. Thus the
excipient contends the pleading is rendered excipiable for failing to
disclose a cause
of action in respect of the excipient.
[3]
Plaintiff's claim is based on a written agreement
with the first defendant on 24 October 2013, to develop an app for
the price of
R95 400.00 (excluding VAT). A further written agreement
was entered into on 30 June 2014 relating to the development of the
app.
The first defendant enlisted the assistance of a third party,
the excipient. The plaintiff agreed to pay fifty percent in advance,
twenty-five percent during the development of the app and the final
twenty-five percent upon completion of the project. The written
agreements between the plaintiff and the first defendant signed on 24
October 2013 and on 30 June 2014 were attached to the particulars
of
claim. The agreements appear to have as their objective of the first
defendant designing and developing a mobile app according
to the
plaintiff requirements.
[4]
In
Data Color
International (Pty) Ltd v Intamarket ( Pty) Ltd
[2001] All SA 581
(A) at paragraph [1] the Court stated:
“
Repudiation
has sometimes been said to consist of two parts: the act of
repudiation by the guilty party, evincing a deliberate and
unequivocal intention no longer to be bound by the agreement, and the
act of his adversary, "accepting" and thus completing
the
breach. So for example Winn LJ remarked in Denmark Productions Ltd v
Boscobel Productions Ltd
[1969] 1 QB 699
at 731F-732A:
"Where A and B are
parties to an executory contract, if A intimates by word or conduct
that he no longer intends, or is unable,
to perform it, or to perform
it in a particular manner, he is, in effect, making an offer to B to
treat the contract as dissolved
or varied so far as it relates to the
future. If B elects to treat the contract as thereby repudiated, he
is deemed, according
to the language of many decided cases, to
'accept the repudiation' and is thereupon entitled (a) to sue for
damages in respect
of any earlier breach committed by A and for
damages in respect of the repudiation, (b) to refrain from himself
performing the
contract any further."
[5]
Uniform Rule 23 provides for exceptions 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) …
(3)
Wherever an exception is taken to any pleading the grounds upon which
the exception is founded shall
be clearly and concisely stated.
(4)
Wherever any exception is taken to any pleading or an application to
strike out is made, no plea, replication
or other pleading over shall
be necessary.”
[6]
The general approach in respect of the
excipiability of pleadings is succinctly stated by Majiedt AJP (as he
was then) in
Beets v Swanepoel
[2010] JOL 26422
(NC) at paragraph [14]:
”
that an exception
must raise a substantive question of law which may have the effect of
settling an issue between the parties.
[1]
A pleading will only be excipiable if no possible evidence led on the
pleadings as they stand can disclose a cause of action.
[2]
Exception is an appropriate way of settling a point of law.
[3]
The excipient must prove that on every interpretation which the court
may attribute to the particulars of claim, it remains excipiable.”
[4]
[7]
Ms Adams, counsel, appearing for the excipient
argued that Rule 18(4) required that 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,
and with
sufficient particularity to enable the opposite party to
reply thereto. Furthermore that that pleadings are the written
statements
of the parties served by each party in turn upon the
other, which must set out in summary form the material facts upon
which each
party relies in support of his claim or defence, as the
case may be. The purpose of pleading is to define the issues so as to
enable
the other party to know what case he/she has to meet. It is
essential to the judicial process that the facts have to be
established.
[8]
She argued that it was the plaintiff’s duty
firstly to allege the facts upon which he relies and further, his
second duty
was to set out the conclusions of law which he claims,
follow from the pleaded facts. Facts and conclusions of law must,
however,
be kept separate. The facts set out must constitute the
premises for the relief sought, she continued. In other words,
they
must be such that the relief prayed for flows from them and can
be properly granted. Failing this, the summons will be excipiable
as
disclosing no cause of action she concluded. She submitted that
whilst there is no exhaustive test to determine whether a pleading
contains "sufficient particularity" for the purposes of
this sub-rule, it is essentially an issue of fact. A pleading
contains sufficient particularity if it identifies and defines the
issues in such a way that it enables the opposite to know what
they
are to respond to. It is to be noted that the degree of particularity
will depend upon the circumstances of each case.
[9]
Applying the general principles, above to the
present matter she submitted that from a perusal of the plaintiffs
Particulars of
Claim, the plaintiff has not pleaded all of the
material facts that are necessary for purposes of establishing a
cause of action.
In particular, she continued, the necessary
averments have not been made regarding the plaintiff's claim for
repudiation premised
on cancellation of 'the agreement', when one
considers the following:
9.1
The plaintiff has failed to plead any contractual nexus between
itself and the
second defendant;
9.2
The plaintiff has failed to plead any contractual obligations owed to
it
by the second defendant;
9.3
The plaintiff has failed to plead that the second defendant failed to
fulfil
any contractual obligations owed by the second defendant to
the plaintiff;
9.4
The plaintiff has failed to set out how and in what respects the
second defendant
is in any way indebted to the plaintiff.
[10]
In view of the above, failure on the part
of the plaintiff she submitted that the failure to allege any of the
above is fatal to
its claim as no possible evidence could be led on
the pleadings to disclose a cause of action. Furthermore, she
continued, the
facts set out in the plaintiffs Particulars of Claim
do not constitute the premises for the relief sought. In other words,
she
submitted the relief prayed for which flows from them cannot be
properly granted. Accordingly, she submitted that the Particulars
of
Claim do not make out a cause of action as against the second
defendant and is, therefore, excipiable. The excipient she submitted
set out adequate grounds to demonstrate why the exception that it has
brought, should be upheld. She consequently moved for an
order in
terms of the draft order prayer for in the exception.
[11]
Mr Blignaut, appearing for the plaintiff,
argued that the excipient states in his exception that the respondent
fails to plead any
contractual nexus between the excipient and the
respondent. This view he submitted ignored that in paragraph 5 of the
particulars
of claim the plaintiff pleads in fact that a tacit
agreement was entered into between the respondent /plaintiff and the
excipient
when the first defendant obtained the services of the
excipient to assist the first defendant in the development of the
app. He
continued that it was the excipient's own version that an
agreement was entered into between the respondent and the excipient
as
second defendant. Furthermore it was the excipient who states in
his opposing affidavit that that on the basis that the agreement
was
entered into that he received payment for the services rendered.
[12]
Mr Blignaut continued that the fact that
the first defendant co-opted the excipient to assist with the
development of the app (with
the knowledge of the respondent) and
that payments were made by the respondent to both defendants is
a clear indication that
the excipient had knowledge of and accepted
the contractual relationship between the first defendant and
respondent and likewise
that a tacit agreement was formed between the
excipient and the respondent. Indeed, he submitted that the whole
question regarding
the excipient’s exception is totally
interwoven with the evidence which is to be led at the trial
regarding the contractual
relationship between the excipient and the
respondent as plaintiff. The respondent/ plaintiff accepted that the
knowledge regarding
the contract in respect of the excipient was
knowledge at the disposal of the first defendant and the respondent
would have to
rely on the first defendant to lead same at trial. In
the light of the aforegoing he submitted that the exception be
dismissed
with costs, alternatively that the Court in its discretion
should order that the exception should stand over and be postponed
until
the trial as was held in
Versluis
v Greenblatt
1973 (2) SA 271
(NC).
Finally he submitted that the exception be dismissed with costs,
alternatively be postponed until the trial.
[13]
I agree with Ms Adams that the averment
made in the plaintiff’s particulars of claim are not such that
enable the excipient
to plead thereto. They fail to plead any
contractual nexus between plaintiff and the second defendant;
they fail to plead
any contractual obligations owed to plaintiff by
the second defendant; the plaintiff has failed to plead that
the second
defendant failed to fulfil any contractual obligations
owed by the second defendant to the plaintiff; and to specify such
and finally
the plaintiff has failed to set out how and in what
respects the second defendant is in any way indebted to the
plaintiff. This
is especially so when the agreement attached was
concluded with the first defendant and the plaintiff has already
obtained a judgment
in the matter against the first defendant
according to Mr Blignaut.
[14]
Even when regard is had to the repudiation,
the agreement is concluded with the first defendant. The plaintiff
has not indicated
any communication in this regard or agreement that
it relies on with the excipient. Mr Blignaut suggested that
unfortunately the
plaintiff has no evidence in this regard and relies
on the first defendant against whom it has taken judgment to be
subpoenaed
as a witness. At present the plaintiff has no case to
which the excipient can be expected to answer and given the first
defendant
already had a judgment against it for the same matter it is
in the precarious position where judgment has been taken
against
it by the plaintiff it is the most undesirable and unreliable
source of evidence where there are no written agreements on which
the
plaintiff can rely on. It cannot make out its case agains the second
defendant.
ORDER
[16]
In the result:
1.
The exception is upheld.
2.
The plaintiff’s particulars of claim is struck out with costs
___________________________
S
C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES:
On
behalf of the applicant :
Adv R Adams
Instructed
by
:
Ramsden Small Inc.
On
behalf of the applicant :
Adv J Blignaut
Instructed
by :
Bekker Attorneys
Matter
Heard On :
8 March 2021
Judgment
Reserved On :
8 March 2021
Judgment
Delivered On :
9 March 2021
[1]
Murray
&
Roberts
Construction
Ltd
v
Finat
Properties
(
Pty
)
Ltd
1991 (1) SA 508
(A) at 514F - G.
[2]
Mckelvey
v
Cowan
NO
1980 (4) SA 525
(Z) at 526H
[3]
Du
Preez
v
Boetsap
Stores
(
Pty
)
Ltd
1978 (2) SA177 (NC) at 181D - E.
[4]
Theunissen
&
Andere
v
Transvaalse
Lewendehawe
Koöp
Bpk
1988 (2) SA 493
(A) at 500E;
Stewart
&
another
v
Botha
&
another
[2008] ZASCA 84
;
2008 (6) SA 310
(SCA) [also reported at
[2009] JOL 24012
(SCA) - Ed]
at para [4]