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[2021] ZAGPPHC 137
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Louw v Absa Bank (8214/20) [2021] ZAGPPHC 137 (10 March 2021)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NUMBER: 8214/20
DATE:
March 2021
SARAH
LOUW
Plaintiff
V
ABSA
BANK
Excipient
JUDGMENT
MABUSE
J
[1]
This is a claim for payment of money. On 4 February 2020 the
plaintiff
issued combined summons against the defendant in which she
claimed:
1.
Payment of the sum of R4.5 million.
2.
Interest on the set some of R 4.5 million at the legal rate of
interest prevailing
from time to time from 1 December 2019 to date of
final payment.
3.
Costs of suit
including the costs of two counsel where employed.
[2]
The plaintiff’s cause of action is a written agreement called
the Separation
Agreement which was signed by the plaintiff, acting
personally on one side and the defendant, then represented by one
Maria Ramos,
she being duly authorized in her capacity as the Chief
Executive Officer on 8 March 2018 at Johannesburg. The said
agreement
is attached to the plaintiff’s particulars of claim
(POC) as annexure ‘A’. For purposes of
convenience
I shall, in this judgment, refer to it as a “Separation
Agreement”.
[3]
The defendant has, on
certain grounds that will be highlighted later, raised an exception
against the plaintiff’s summons. It contends that the
plaintiff’s POC are vague and embarrassing or fail to disclose
a cause of action. Furthermore, the defendant has delivered a
notice in terms of Rules 30A and 23(1) of the Uniform Rules
of Court.
I will set out the grounds of the Rule 30A later in the judgment.
[4]
The parties have delivered heads of argument in the matter.
THE BACKGROUND
[5]
The plaintiff has pleaded
her case as follows. On or about 8 March 2018 and at Johannesburg
the
parties concluded a written agreement relating to the termination of
the plaintiff’s employment with the defendant.
[6]
The plaintiff acted
personally while the Defendant was represented by a certain Maria
Ramos, its Chief Executive Officer, who had been duly authorized
thereto by the defendant. As indicated earlier, the said
Separation Agreement is attached to the plaintiff’s POC as
annexure “A”.
[7]
The salient terms of the said agreement after that:
7.1
the plaintiff’s employment
with the defendant was to terminate on 30 April 2018;
7.2
the plaintiff was to be paid six
months’ notice, calculated on a guaranteed package
in
accordance with the contract of employment dated 7 November 2012;
7.3
between the date of signature of
the Separate Agreement and the termination date, the plaintiff
was to
complete a handover of any of the tasks to a person designated by the
defendant. Furthermore, the plaintiff was to
be reasonably
available to assist with any queries that may be directed to her from
30 April to 31 October 2018;
7.4
the plaintiff was to be paid a
short term performance incentive in March 2018 equivalent
to that
which she was awarded in March 2017. This incentive would be
subject to the conventional deferral requirements applicable
to a
Material Risk Taker;
7.5
the plaintiff was to be paid the
value of her accrued leave, which leave accrued until
the date of
termination of employment;
7.6
it was agreed between the parties that the plaintiff had been granted
“Eligible
Leaver Status” by the defendant for all awards
made to the plaintiff, including all bonus deferrals, the Restricted
Share
Awards and Long-term incentives [in terms of the Rules of the
Share Value Plan, Cash Value Plan and Long-Term Incentive Plan] in
accordance with Schedule 1 to the Separation Agreement;
7.7
any awards that may be granted
to the plaintiff in terms of the “Eligible Leaver
Status”
remained subject to all claw-back provisions at the discretion of
Barclays Africa Group Remuneration Committee [Remco];
7.8
claw-back may apply to any
awards made to the plaintiff as a Material Risk Taker on or
after 1
January 2015;
7.9
the plaintiff accepted that the
Separation Agreement and the benefits conferred upon her
in terms of
the agreement were in full and final settlement of any and all
disputes, claims, actions and rights of action which
existed or might
exist or arise between the plaintiff and the defendant, Absa Group
Companies, Barclays Africa and or Barclays
African Group Companies
arising out of the employment contract and relationship which the
plaintiff had with the defendant and
the termination to such
employment contract relationship;
7.10
the said Separation Agreement constituted the sole
record of the agreement between the parties in regard
to the subject
matter thereof and contained non-variation provisions;
7.11
schedule 1 to the agreement set out the treatment
of long-term incentives and cash and share plans for the
Plaintiff.
It also included a summary of outstanding long-term rewards and when
those rewards would vest in the plaintiff;
7.12
clauses 2 to 4 of Schedule 1 recorded that Remco had approved the
plaintiff’s “Eligible
Leaver Status”. This meant
that the plaintiff remained eligible for the release of any remaining
portions, cash portions
or shares due to her in terms of the Share
Value Plan Awards Cash Value Plan Awards and Absa Long-Term Incentive
plan [LTIP] Awards,
subject to the discretion of Remco in terms of
any malus and clawback considerations and in respect of which;
§
7.12.1
the plaintiff’s 2017 Share Value Plan Restricted Award
valued
at R4.5 million;
§
7.12.2
it was recorded that the Award Date of the 2017 Share Value Plan
restricted award was 1 October 2017
[8]
8.1
The plaintiff’s employment with the defendant came to an end on
30 April 2018.
The plaintiff had complied with her obligations in
terms of the Separation Agreement.
8.2
The plaintiff’s 2017 Share Value Plan restricted award payment
of R4.5 million vested
during the September 2019.
8.3
Accordingly, the amount of R4.5 million became due and payable by the
defendant to the
plaintiff the latest on 30 September 2019.
8.4
The defendant is in breach of
its obligations arising from the Separation Agreement in
that it has
failed, despite despite lawful demand, to make payment of the
Plaintiff’s 2017 Share Value Plan Restricted Award
award to her
timeously or at all.
[10]
Against the foregoing allegations, the defendant has filed firstly, a
notice in terms of Rule
30A of the Uniform Rules of Court in which it
seeks and order that the plaintiff should be compelled to comply with
18(6) of the
Uniform Rules of Court at the risk of her claim being
struck out and she being ordered to pay the costs of the application.
Rule
18(6) states as follows:
“
A
party who is 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 part
relied on in the pleading shall be annexed to the
pleading.”
[11]
The defendant has raised an exception to the plaintiff’s
particulars of claim on
the ground that they are vague and
embarrassing or alternatively, do not disclose the cause of action.
The grounds for the exception
are set out as follows:
11.1
the plaintiff’s is based upon a Separation Agreement, a copy of
which is attached to the particulars
of claim as Annexure “A”;
11.2
the plaintiff pleads that the defendant has failed to make a
restricted award payment to her
and that this is in breach of the
defendant’s 2017 Share Value Plan.
11.3
from the particulars of claim, read with the annexure, it is clear
that the defendant’s alleged obligation
to make the payment of
any award to the plaintiff arises from an award granted by the
defendant in terms of the Share Value Plan
rules of 19 May 2015. It
is apparent from clause 5.4 of the Separation Agreement (attached to
the particulars of claim), read with
clause 2 of Schedule 1 to that
agreement, that the award is contained in a letter to the plaintiff.
11.4
neither the Share Value Plan rules nor the letter is attached to the
particulars of claim. This is despite
those documents and these
allegations being necessary and integral to the plaintiff’s
claim, based on breach of contract.
This is in breach of the
provisions of Route 18 [6] of the Uniform Rules.
11.5
further, there is a failure to allege [1) that the
plaintiff received an award from the defendant, [2] the
details and
terms of that award, and [3] the terms of the rules of the Share
Value Plan which create any liability to pay the award.
These are
necessary allegations to establish a proper cause of action.
[12]
I am of the view that the plaintiff has satisfied the requirements of
Rule 18(6) of the Uniform
Rules of Court. In this regard see
paragraphs (5) and (6) supra. In the said paragraphs it is clear that
in the particulars of
claim, the plaintiff relies, as her cause of
action, on a written agreement called a Separation Agreement. The
plaintiff has pleaded
all the relevant salient terms of the
agreement. The plaintiff is simply obliged to alleged the facta
probanda in the particulars
of claim which will be clarified and
elaborated on by the facta probandia with oral evidence. See Makgae v
Sentraboer ( Ko-operatiewe)
Bpk
1981 (4) SA 239(T)
at page 245C-E.:
“
Word
Reëls 17(2), 18(4), 20(2) en 23(1) saamgelees dan kom dit my
voor dat ‘n gedingvoerder, ten einde te verseker dat
besonderhede van voedering nie eksipeerbaar is op grond daarvan dat
dit “bewerings mis wat nodig is om die aksie te staaf”
nie, moet toesien dat die wesentlike feite (dit wil sê die
facta probanda en nie die facta probantia of getuienis ter bewys
van
die facta probanda nie van sy eis met voldoende duidelikheid en
volledigheid uiteengesit word dat, indien bestaan van sodanige
feite
aanvaar, dit sy regskonklusie staaf en hom nie in regte sou moet laat
slaag t.a.v. die regshulp of uitspraak wat hy aanvra.”
[13]
In
casu
,
I am satisfied that in her particulars of claim, the plaintiff “
het
die wesentlike feite van haar eis met voldoende duidelikheid en
volledigheid uiteengesit”
.
[14]
As correctly contended by advocate AJ Troskie SC, counsel for the
plaintiff, in his heads of
argument, the plaintiff has:
14.1
pleaded that a written contract was concluded between the parties;
14.2
has set out the salient terms of the written contract in her
particulars of claim;
14.3
annexed the said written contract to the POC.
[15]
The plaintiffs has accordingly complied with rule 18(6):
15.1
in the POC, the plaintiff pleaded that she was granted “Eligible
Leaver Status” by the defendant
for all awards made to hear,
including “Restricted Share Awards (in terms of the Rules of
the Share Value Plan) in accordance
with Schedule 1 to “the
agreement.”;
15.2
pleaded that the award has vested;
15.3
annexed Schedule 1 to the agreement, which
similarly recorded that the plaintiff remained eligible for the
release of any remaining portions of her SVP award(s), granted in
accordance with the SVP rules of 19 May 2015, on or around the
scheduled release dates as set out in her SVP award letter(s). See
clause 2 of Schedule 1 to the agreement.
[16]
The Court is satisfied on the basis of the POC, read together with
the Separation Agreement
that:
16.1
the plaintiff has been granted SVP awards;
16.2
the awards had been made in terms of the defendants SVP Rules;
16.3
the awards letter contains “scheduled release dates”;
16.4
her status entitled her to payment on or around those dates.
16.5
the plaintiff has pleaded that the award which was recorded as having
vested in her was due for payment
on a specific date and in a
specific amount.
16.6
that the SVP award was made to the plaintiff is pleaded in the
particulars of claim and recorded in the
Separation Agreement.
According
to counsel for the plaintiff these are factual allegations upon which
the plaintiff’s claim is predicated. He
has furthermore
submitted that the particulars of claim establish both that the
necessary Rules were complied with and that the
SVP Award was made to
the plaintiff. Accordingly, a cause of action has been established.
[17]
An exception that the summons is vague
and embarrassing cannot be employed to strike out a particular
paragraph; the exception must be directed at the whole cause of
action which must be demonstrated to be vague and embarrassing.
In
this regard see
Carelsen v Fairbridge,
Ardeen & Lawton
1918 TPD 309.
[18]
Bearing in mind that the defendant’s complaint is that the
plaintiff’s s particulars
of claim are vague and embarrassing,
I conclude by referring to the words of David J in
Khan v Stuart
1942 CPD at 309
, where he remarked as follows:
“
In
my view, it is the duty of the Court when an exception is taken to a
pleading, first to see if there is a point of law to be
decided which
will dispose of the case in whole or in part. If there is not, then
it must ... if there is any embarrassment, which
is real and as such
cannot be met by the asking of particulars as a result of the
defaults in the pleading to which the exception
is taken and, unless
the excipient can satisfy the Court “that there is a point of
law or such real embarrassment then the
exception should be
dismissed.”
[19]
In the instant matter the defendant’
exception does not involve a point of law taken against
the
plaintiff’s pleading. There is no point of law which will
dispose of the case in part or in whole to be decided.
The
defendant has not satisfied the Court that there is a real
embarrassment in the plaintiff’s pleading and that such
embarrassment cannot be met by the asking of particulars. As a
consequence, the exception cannot be upheld.
Accordingly,
the exception is dismissed, with costs
.
PM
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel for the
Plaintiff:
Adv A Troskie (SC)
Adv
W Shapiro
Instructed
by:
MacGregor
Erasmus
c/o
Macintosh Cross & Farquharson
Counsel for the
Excipient:
Adv A Redding SC
Instructed
by:
ENSAfrica
Attorneys
c/o
Gerhard Botha and Partners Inc
Date on the opposed roll
before Mabuse J: 18
November 2020
Date of
Judgment:
10
March 2021