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[2021] ZAGPPHC 301
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Smada Security Services (Pty) Ltd v Tshwane University of Technology (11587/2019) [2021] ZAGPPHC 301 (16 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER
JUDGES: NO
(3)
REVISED: YES
Case
Number: 11587/2019
SMADA
SECURITY SERVICES (PTY) LTD
Plaintiff
/ Excipient
AND
TSHWANE
UNIVERSITY OF TECHNOLOGY
Defendant
JUDGMENT
H
G A SNYMAN AJ
INTRODUCTION
[1]
This is an exception by the plaintiff /
excipient (“
SMADA
”)
against the plea and two counterclaims of the defendant (“
TUT
”).
[2]
SMADA is a company that renders security
and security related services. TUT is an institution of higher
education established in
terms of the Higher Education Act, Act 1 of
1997. TUT’s main campus is situated at Off Staatsartillerie
Road, Technikon Place,
Pretoria West, Pretoria, Gauteng.
[3]
SMADA and TUT allegedly entered into a
written agreement on 2 July 2012 following a tender process. In
terms of this agreement
SMADA would render security and security
related services at the TUT campus (“
the
service agreement
”). SMADA
allegedly rendered these services to TUT and an amount of
R5,555,925.84 is allegedly due and payable to it, which
TUT failed or
neglected to pay. On 19 February 2019, SMADA instituted action
against TUT claiming payment of the said amount,
with interest and
costs.
[4]
As part of TUT’s plea to SMADA’s
particulars of claim, it
inter alia
raised a special plea of prescription. TUT also instituted two
counterclaims against SMADA.
[5]
The first counterclaim is based thereon
that three named security officers of SMADA, whilst on duty and
rendering security services
at TUT, stole certain goods from TUT,
which allegedly had a value of R576,903.93 (“
the
first counterclaim
”). The claim
is that SMADA is vicariously liable for the conduct of the said
employees. TUT pleads that the goods stolen
are described and
detailed as appears from annexure “
A
”,
annexed to the first counterclaim. Annexure “
A
”
is on the face of it a signed agreement of loss entered into between
TUT and its insurers. In terms of this TUT agreed to
accept the sum
of R576,903.93 (VAT inclusive) in full and final settlement and
satisfaction of all and any cause of action, claim,
loss or damage
which TUT may have suffered as a result of the goods being stolen. It
is also pleaded that the damage that TUT suffered
is quantified as
set out in annexure “
A
”.
[6]
The second counterclaim is based thereon
that during or approximately March and April 2017, SMADA’s
security guards embarked
upon strike action and intentionally damaged
property of TUT (“
the second
counterclaim
”). This claim is
also based thereon that the said employees were acting in the course
and scope of their employment and that
SMADA is therefore vicariously
liable. The said security guards allegedly at the time stoned and
damaged a bus full of TUT students
and “
destroyed
”
TUT’s parameter fencing at the main gate to TUT’s campus.
TUT pleads that it suffered damages in that it had
to repair the
parameter fencing and incurred expenses in the amount of R81,214.74.
It is pleaded that this amount is calculated
and arrived at per the
description of a quotation which is attached as annexure “
B
”
to the second counterclaim. TUT pleads that it does not know the
individual names of these employees, and that it is not
able to
furnish any better particularity relating to the identification of
SMADA’s aforementioned employees.
[7]
SMADA noted an exception on five grounds
against TUT’s plea and the two counterclaims. Only four of
these grounds were eventually
persisted with in argument before me.
The exception against TUT’s special plea of prescription is
that it fails to disclose
a defence and is vague and embarrassing.
The exception against the first counterclaim is that it fails to
disclose a cause of action.
The two exceptions against the second
counterclaim are that the second counterclaim fails to disclose a
cause of action and is
vague and embarrassing.
[8]
Counsel for TUT alerted me at the hearing
to the fact that following the exception, SMADA introduced an
alternative claim based
upon unjust enrichment which is brought in
the alternative. TUT filed a consequentially amended plea in which a
second special
plea was introduced. The plea in so far as the
averments contained in the original particulars of claim is concerned
basically
remained the same. Counsel for TUT submitted that the
correct methodology is that the exception strictly speaking ought to
have
been directed to the pleadings in their latest format, because
if this court for instance find that there is merit in any one of
the
grounds of the exception, which set of pleadings should then be set
aside? He stressed however, that in so far as the grounds
of
exception are concerned, TUT’s second set of pleadings do not
differ in any respect from the set against which SMADA raised
the
exceptions. Counsel also made it clear that he can not argue that
TUT’s amended pleadings are in themselves an answer
to the
exception because the matters of which SMADA complains, still appear
in the further pleadings. In respect of the newly introduced
second
special plea is concerned, TUT’s counsel pointed out that that
plea is also based on prescription, i.e. that SMADA’s
claim
based upon enrichment has prescribed. Counsel pointed out that there
is no exception against that special plea. The only
relevance of
this, it was submitted is that counsel for SMADA raised it in her
heads of argument that the purpose of an exception
is to save costs
and to bring a swift end to matters. Although counsel for TUT agreed
with that proposition, he submitted that
it should be abundantly
clear that in this matter there will be a trial, whether the
exception against the first special plea succeeds
or not, because it
is not also directed at the second special plea.
[9]
I made it clear to counsel that what I
would consider for purposes of my judgment is TUT’s amended
special plea and counterclaim,
since the amended consequential
amendment does not change anything. I will test this against the four
remaining grounds of exception.
Counsel accepted that this was the
correct approach for me to follow.
THE LEGAL POSITION
[10]
Counsel on behalf of the parties were in
agreement in their respective heads of argument and in argument
before me regarding the
broad legal position in so far as exceptions
are concerned.
[11]
In so far as exceptions based thereon that
the pleading fails to disclose a defence or cause of action, it is
trite that the function
of a well-founded exception is to dispose of
the case, in whole or in part and that this avoids the unnecessary
leading of evidence.
[
Barclays
National Bank Ltd v Thompson
1989 (1) SA 547
(A) at 553F-I.
]
[12]
An exception must be determined on the
pleadings as they stand, assuming the facts stated therein to be
true. An excipient has the
duty to persuade the court that upon every
interpretation, which the pleading in question (and in particular the
document upon
which it is based) can reasonably bear, no cause of
action or defence is disclosed, failing which the exception ought not
to be
upheld.
[13]
Rule 18(4) of the Uniform Rules of Court
requires 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, as the case may be, with sufficient particularity to enable
the opposite party to reply thereto.
”
[14]
To give effect to the requirement in rule
18(4) a plaintiff is required to plead
facta
probanda
; namely the material facts,
and not conclusions, that (if proved) will disclose a cause of
action.
Facta probantia
on the other hand, are the particulars of all the evidence that the
plaintiff will lead in order to prove the pleaded material
facts
(
facta probanda
).
Makgae v Sentraboer (Koöperatief)
Beperk
1981 (4) SA 239
(T) at
245D
puts the point crisply.
[15]
In so far as the legal position is
concerned for purposes of an exception based thereon that the
pleading is vague and embarrassing,
this is directed at the
formulation of the whole cause of action, or defence. Exceptions like
these are intended to cover the case
where there is some or other
defect or incompleteness in the pleading, which results in
embarrassment to the pleader, despite a
cause of action or defence
being apparent from the pleading. I was in this regard referred to
Erasmus’ Superior Court Practice
Commentary on Rule 23 at
D1-298 – D1-301 read
inter alia
with
Jowell v Bramwell-Jones and
Others
1998 (1) SA 836
(W) at
899G
.
[16]
In order for an exception to succeed on
grounds of vagueness and embarrassment, it must be demonstrated that
the excipient will
be “
seriously
prejudiced
” if the offending
allegations are not expunged. The excipient carries the onus to show
vagueness amounting to an embarrassment
and embarrassment amounting
to prejudice, failing which the exception cannot succeed. [
Quinlan
v MacGregor
1960
(4) SA 383
(D) at 393F-H
.]
[17]
I was also referred to the decision in
Trope v South African Reserve Bank
and Another and Two Other Cases
1992 (3) SA 208
(T)
.
The court explained the principle that underpins the requirement of
particularity in rule 18(4) to be this (
at
210G-H
): “
It
is, of course, a basic principle that particulars of claim should be
so phrased that a defendant may reasonably and fairly be
required to
plead thereto. This must be seen against the background of the
further requirement that the object of pleadings is
to enable each
side to come to trail prepared to meet the case of the other and not
be taken by surprise. Pleadings must therefore
be lucid and logical
and in an intelligible form; the cause of action or defence must
appear clearly from the factual allegations
made …
”.
[18]
The court at
211B
summarised the position as follows: “
An
exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such
a nature
that the excipient is prejudiced.
”
[19]
The ultimate test as to whether or not an
exception should be upheld on this ground, is whether the excipient
is prejudiced. The
evaluation of prejudice is a factual enquiry and
is a question of degree. The decision must necessarily be influenced
by the nature
of the allegations, their content, the nature of the
claim and the relationship between the parties. [
ABSA
Bank Ltd v Boksburg Transitional Local Council
1997 (2) SA 415
(W) at 422A
.]
[20]
I was also referred to
Jowell
v Bramwell-Jones and Others
1998
(1) SA 836
(W) at 905G-H
where it is
stated that: “
I must first ask
whether the exception goes to the heart of the claim and, if so,
whether it is vague and embarrassing to the extent
that the defendant
does not know the claim he has to meet …
”
[21]
In summary, therefore, vagueness amounting
to embarrassment and embarrassment in turn resulting in prejudice
must be shown. Vagueness
would invariably be caused by a defect or
incompleteness in the formulation and is therefore not limited to an
absence of the necessary
allegations but also extends to the way in
which it is formulated. An exception will not be allowed, even if the
pleading is vague
and embarrassing, unless the excipient will be
seriously prejudiced if compelled to plead against which the
objection lies.
[22]
It was common cause between the parties at
the hearing that an excipient is bound to the grounds listed in its
exception and cannot
go wider than that in argument.
FIRST GROUND OF
EXCEPTION
[23]
SMADA’s first ground of exception is
levelled against TUT’s special plea of prescription of a
portion of SMADA’s
claim, which relates to services rendered
prior to 26 February 2016.
[24]
It is stated that prescription commences to
run as soon as a debt is due and a party who raises prescription must
allege and prove
the date of inception of prescription. The complaint
is that TUT asserts in paragraph 1.3 of its plea that the debt became
due
“
at the end of the month
during which the services were rendered
”,
but does not provide any particulars in support of the conclusion
pleaded.
[25]
The exception is therefore that TUT has
failed to make the necessary allegations in support of the special
plea of prescription
and that it follows that the special plea fails
to disclose a defence and is furthermore vague and embarrassing.
THE SECOND GROUND OF
EXCEPTION
[26]
The second ground of exception was that
paragraphs 8 and 9 of the plea admit the existence of the service
agreement entered into
between TUT and SMADA, but that TUT then later
on disputes the existence of the agreement by denying that an
“
enforceable agreement
”
came into existence. The complaint was that this renders the plea
vague and embarrassing.
[27]
Counsel for SMADA made it clear at the
hearing that SMADA no longer relied on this ground of exception.
THE THIRD GROUND OF
EXCEPTION
[28]
The third ground of exception is aimed at
the first counterclaim, i.e. the claim for damages following the
theft in the sum of R576,903.93
of goods “
as
described in detail on annexure ‘A’ to the claim
”.
[29]
The first complaint is that
ex
facie
annexure “
A
”,
TUT accepted payment in the sum of R576,902.93 from its insurer in
full and final settlement and satisfaction of its cause
of action,
claim, loss and/or damage arising from the events that form the basis
of the first counterclaim. It is stated that in
the first instance, a
party claiming delictual damages is obliged to allege and prove the
damages suffered as a result of the other
party’s unlawful
conduct.
Ex facie
annexure “
A
”,
TUT has not suffered any damages as its insurer compensated it for
this loss.
[30]
SMADA therefore contends that TUT’s
first counterclaim is excipiable for want of disclosing a cause of
action.
[31]
The second complaint as part of this
exception was that in terms of the doctrine of subrogation, in view
of the payment by the insurer,
TUT does not have the requisite
locus
standi
to pursue a claim against SMADA.
This complaint was, correctly in my
view,
not persisted with in argument before me. [Payment by an insurer,
after the event, is immaterial.
See
Smith v Banjo
2011 (2) SA 518
(KZP) at paragraphs 12 and 13.
]
FOURTH GROUND OF
EXCEPTION
[32]
The fourth ground of exception is directed
at TUT’s second counterclaim for payment in the sum of
R81,214.74 for expenses
allegedly incurred towards repairs for the
damaged parameter fence.
[33]
The exception refers to the fact that TUT
pleads in paragraph 16.2 read with paragraph 17.2 of the second
counterclaim that it does
not know the names of SMADA’s
employees who caused the damage and that TUT is not able to furnish
any better particularity
regarding their identification.
[34]
The complaint is that TUT is obliged to
allege and prove that the persons who committed the delict were
employees of SMADA; the
scope of their duties; and that the alleged
employees performed the delictual act in the course and scope of
their employment.
[35]
The exception was that TUT has failed to
make the necessary allegations to support a cause of action for
vicarious liability, thereby
rendering the second counterclaim
excipiable for want of disclosing a cause of action.
FIFTH GROUND OF
EXCEPTION
[36]
The fifth ground of exception is also
directed at the second counterclaim.
[37]
SMADA relies in this regard on rule 18(10)
of the Uniform Rules of Court (“
the
rules
”), which provides that a
plaintiff suing for damages is obliged to set out its claim in such a
manner as will enable a defendant
to reasonably assess the quantum
thereof.
[38]
The complaint is that the second
counterclaim amount of R81,214.74 is not quantified in the
particulars of claim and that the references
apparent from annexure
“
B
”
to the counterclaim do not constitute a formulation and description
of the alleged damages in a manner that would enable
SMADA to
reasonably assess the quantum thereof.
[39]
Moreover, that the second counterclaim
equates non-compliance with the rules and is excipiable as a result
of vagueness and embarrassment.
SMADA is prejudiced in that it is
unable to ascertain what case it has to meet at trial.
ARGUMENT ON BEHALF
OF SMADA
[40]
As part of her oral address, counsel on
behalf of SMADA referred me to the resolutive conditions contained in
paragraph 19 of the
service agreement as well as paragraphs 20 and 21
thereof. She pointed out that clause 19.1 and 19.2 provided certain
criteria
for the security officers who had to render services in
terms of the service agreement. Paragraph 20 dealt with breach
Counsel
for SMADA submitted that it is important to consider these
clauses of the agreement, albeit that there is a difference of
opinion
whether they are resolutely or suspensive conditions, in
considering whether an agreement was entered into with TUT.
[41]
Counsel for SMADA then referred me to
paragraph 4 of SMADA’s particulars of claim where it is alleged
that the agreement was
entered into. With reference to paragraph 4.3
of the particulars of claim, counsel referred me to paragraph 10 of
TUT’s plea
where TUT pleaded to paragraph 4.3 of the
particulars of claim. Counsel argued that the plea that TUT raised
regarding the suspensive
conditions, etc. in paragraph 10.2, has
relevance in respect of the first ground of exception, namely the
exception against the
special plea of prescription. The conclusion
counsel argued for was that the admissions contained in the plea read
with the limited
denial of the existence of the service agreement,
does not assist TUT’s special plea of prescription.
[42]
She argued that TUT in paragraph 10 denied
the existence of the service agreement purely with reference to the
non-fulfilment of
the suspensive conditions. Counsel then referred me
to the last sentence of paragraph 12 of TUT’s plea where TUT
pleads as
follows: “
[TUT] accepts
that the agreement had the terms as pleaded in paragraph 5.2, but
only to the extent that the terms as pleaded correspond
with the
express terms recorded in the agreement. To the extent that the
alleged terms do not correspond with the express provisions
contained
in the agreement, the allegations are denied.
”
[43]
Counsel made it clear, however, that I was
not at this stage called upon to decide whether the resolutions were
suspensive or resolutely.
This will be something for the trial court
to determine. But she submitted that the denial of the service
agreement only extended
to the denial to the extent that those
conditions have not been fulfilled. Counsel then referred me to
clause 13 of the agreement
that deals with contract rights, penalties
and incentives. She drew my attention specifically to clause 13.2,
which provides that:
“
An invoice,
fully complying with the prescriptions by SARS, specifying the
services rendered during that current month and detailing
the amount
due will be submitted to [TUT] before the seventh (7) day of the
month following the month in which the service was
rendered.
[TUT]
shall effect payment within thirty (30) days after the date of
receipt of the invoice(s)
.
”
(my emphasis).
[44]
Counsel for SMADA stressed that it was
important to consider the emphasised portion of section 13.2 above.
She submitted in this
regard that this clause means that only in the
month following the month during which the services were rendered an
invoice is
submitted. Payment only becomes due thirty days after
that.
[45]
I was then referred to paragraph 1.3 of
TUT’s amended special plea, plea and counterclaims. Counsel
quoted what was pleaded
in paragraph 1.3 of the special plea, namely
that: “
The debt proportionally
became due as time progressed, and the debt relating to the services
of each month, became due at the end
of the month during which the
services were rendered, namely the debt for January 2016 became due
at the end of January 2016 and
the debt for February 2016 became due
at the end of February 2016.
” It
is this conclusion, which forms the focus of first ground of
exception.
[46]
Counsel for SMADA submitted in this regard
that it was incumbent on TUT to plead the reason why the debt would
have become due on
the said date. In answer to my question what TUT
should in fact have pleaded, counsel submitted that they had to plead
that prescription
started on X date by reason of something specific.
She argued that for instance, it should be pleaded if there is an
agreement
to this effect, or if it is simply based on TUT’s say
so.
[47]
In this instance TUT pleaded that it became
due at the end of the month during which the services were rendered.
But “
why?
”
counsel argued. This according to counsel refers to some or other
contract, which is not pleaded. The terms of such an agreement
are
not apparent from the special plea. In the alternative, counsel
submitted that there is some defect in the way in which this
was
pleaded and that it is therefore incomplete, which renders it vague
and embarrassing.
[48]
In conclusion with reference to the first
ground of exception, counsel for SMADA pointed out that the service
agreement did contain
a non-variation clause, namely clause 35. She
stated that in absence of the “
why
”
the allegation that prescription started to run at the end of each
month during which the services were rendered, renders
the plea even
more vague and embarrassing. She argued even more so since TUT admits
the terms of the agreement, but only relies
on the conditions for
pleading that it is not bound thereto. The gist of the argument was
therefore that TUT cannot on the one
hand rely thereon that the terms
of the contract fix the due date, but on the other hand deny the
existence of the contract.
[49]
In so far as the third to the fifth grounds
of exception are concerned, i.e. the counterclaims, counsel for SMADA
submitted that
both of these are delictual claims based on the
Lex
Aquila
, aimed at holding SMADA
vicariously liable. She submitted in this regard that the
Lex
Aquila
entitles a plaintiff to claim
for patrimonial loss suffered from the wrongful or negligent act of a
defendant. She pointed out
that in this regard there are certain
things which a plaintiff must allege and prove. This included that
the plaintiff must allege
and prove the extent of the loss suffered.
She pointed out that in respect of the first counterclaim, TUT
identified who the employees
are who caused “
the
damage
”. This can be
distinguished from the second counterclaim, where the relevant
alleged employees are not identified.
[50]
With reference to the
Lex
Aquila
counsel on behalf of SMADA
submitted that a plaintiff claiming for damages has various ways to
plead this, taking into account
that you are only entitled to claim
damages to the extent your patrimony has actually been diminished.
She submitted that the first
way to do this in respect of an article
which has been damaged, is for a plaintiff to prove the reasonable
costs of repairs in
order to restore it to its original state.
Alternatively, a plaintiff can claim the difference between the
pre-delictual value
of the goods as compared to the post-delictual
value. In the event that an article is lost, a plaintiff is required
to establish
its market value, or the replacement value at the date
of the delict. This is the general proposition in our law.
[51]
Counsel then referred me to paragraph 9 of
the first counterclaim where it is pleaded that: “
The
breach by [SMADA] and its employees (for which [SMADA] is liable) of
the said provisions of the service level agreement caused
[TUT] to
suffer the damages quantified in Annexure ‘A’ hereto.
”
She then took me through what appears from annexure “
A
”.
[52]
As part of her submissions counsel on
behalf of SMADA acknowledged that there is a principle that
notwithstanding the fact that
an insurer has paid out, a plaintiff
may still in certain circumstances claim for the loss. She referred
me in this regard
inter alia
to
Dippenaar v Shield Insurance Co
Ltd
1979 (2) SA 904
(A)
.
She submitted, however, that that principle is not applicable in the
present instance. First of all, TUT has not pleaded it, but
according
to her it is actually not relevant. Based on the principles of the
Lex Aquila
,
the plaintiff must allege and prove its damages on any of the bases
referred to earlier herein. Counsel relied in this regard
on what is
stated in Amlers Precedents of Pleadings, 9
th
Edition, at page 144. Counsel criticised the first counterclaim for
not pleading these details. For instance, it does not deal
with the
three bases based upon which damages may be claimed in terms of the
Lex Aquila
.
It is not pleaded what was stolen, what the pre-delictual values of
these were, or what their replacement values were. She argued
in this
regard that to the extent that TUT relies for its claim on goods
being stolen that is not pleaded at all. She argued that
the loss was
simply not established and that in the result the first counterclaim
fails to disclose a cause of action as one of
the five essential
elements of a delictual claim has not been shown.
[53]
In summary therefore, she submitted that
TUT pleads that it has suffered damage of R576,903.93 with reference
to annexure “
A
”.
However, annexure “
A
”
is a document that shows that TUT has not suffered any loss.
[54]
Counsel for SMADA then dealt with the
fourth and the fifth grounds of exception aimed at the second
counterclaim. She submitted
in this regard that TUT pleads that the
fence was “
destroyed
”
by employees of SMADA, who are then not named and who TUT says it
cannot name.
[55]
Counsel submitted with reference again to
Amlers (page 370) that in order to succeed with this claim, TUT will
have to allege and
prove that the persons who were involved in this
incident were SMADA’s employees. She submitted in this regard
that SMADA
does not know who these individuals are, as they are not
named. TUT also did not plead the scope of the duties of these
employees
at the time. Counsel submitted that if her client does not
know who these alleged employees are, how is it able to ascertain
what
the scope of their employment was? Thirdly, that TUT will have
to allege and prove that they did this in the course and scope of
their employment. This is also not alleged.
[56]
Counsel for SMADA referred me to the heads
of argument that was filed on behalf of TUT where it is stated that
it is not really
necessary for this to be pleaded. She asked how is
TUT going to lead evidence on this at the trial? In answer to a
question from
me whether it was necessary for TUT to name these
employees, counsel for SMADA submitted that they are prejudiced since
they cannot
admit or deny this in a plea because details are not
provided.
[57]
The prejudice complained of is essentially
that SMADA is not in a position to plead to this. Accordingly, SMADA
is not in a position
to admit or deny or confess and avoid. She
submitted in this regard that there is incompleteness in this cause
of action, which
renders the pleading vague and embarrassing.
[58]
On a question of what exactly is missing,
counsel for SMADA submitted that it is the identity of the specific
persons involved.
She submitted in this regard that since their
identities are missing, the scope of their employment is also
missing. Thirdly, that
SMADA does not know whether the alleged act
was in the course and scope of their employment.
[59]
In answer to a question from me if it can
ever be in the course and scope of the employees’ employment to
break down the fence,
counsel for SMADA submitted that it can never
be.
[60]
In respect of the fifth ground of exception
the submission was made that reparation can only be done to something
that has been
damaged. If something is destroyed, it has to be
replaced. With reference to what appears from annexure “
B
”,
counsel for SMADA submitted that it is not pleaded by TUT what the
reasonable replacement cost was for this destroyed fence.
If what
happened was that it was completely destroyed, they had to plead what
the replacement costs were. TUT also does not plead
how these
expenses, are made up. It merely quotes the figure of R81,214.74 with
reference to annexure “
B
”.
If one then has regard to annexure “
B
”
it is really non-descriptive, save in minor respects. It was
submitted that the basic requirements of what needs to be pleaded
and
proved in terms of the
Lex Aquila
have not been set out. Also that this does not comply with rule
18(10) of the rules. The damages are not set out in order to enable
SMADA to reasonably assess the quantum thereof. It was submitted that
this amounts to vagueness and embarrassment because SMADA
is unable
to plead thereto. It is therefore severely prejudiced. It cannot be
expected from a defendant in reconvention to deduct
what the expenses
are. Are they repairs or are they replacement costs? SMADA simply
does not know.
ARGUMENT ON BEHALF
OF TUT
[61]
Counsel for TUT’s overarching
submission was that SMADA’s complaints are all matters upon
which they can plead or respond
in pleadings and these issues can be
sorted out at the trial or through further particulars. None of them
are of the kind where
this court should in the exercise of its
discretion now interfere with that at the exception stage.
[62]
Counsel submitted that it is trite that an
excipient must stand or fall with the grounds of exception advanced
in the exception,
which is a pleading, and one cannot broaden the
attack on the pleadings as a matter of substance by raising points in
your heads
of argument, or as part of your oral argument, which have
not been covered in your exception. TUT’s counsel submitted in
this regard that a number of the aspects raised in argument on behalf
of SMADA was in fact not raised in the exception.
[63]
In respect of the first ground of
exception, counsel for TUT submitted that if this court apply the
trite principle that at this
exception stage, it should be accepted
that what is stated in TUT’s plea is correct, then the first
ground of exception has
no merit. Put otherwise, if it is accepted as
correct that the debt became due at the end of the month upon which
the service has
been rendered, the plea does sustain a defence as
part of the special plea. It matters not that the service agreement
may refer
to different date.
[64]
Counsel for TUT accepted that this may
instead render the plea vague and embarrassing because what is
alleged in the plea differs
from what appears from the service
agreement. However, he submitted that I should not uphold the first
ground of exception on this
basis simply because this was not raised
in the exception.
[65]
Counsel’s second point was that
although TUT admitted signature of the service agreement, it was
pleaded that there are conditions
in the service agreement which have
been styled resolutive albeit TUT believes they are actually
suspensive. That SMADA said nothing
in its particulars of claim
whether those conditions, if they are suspensive, have been complied
with and in that event TUT denied
that an enforceable agreement came
into existence. In the alternative TUT pleaded that in the event of
the court finding that the
agreement is binding and enforceable, TUT
admits the terms which SMADA allege to the extent they accord with
the express provisions
of the agreement. Under the circumstances
counsel for TUT submitted that to hold TUT to a paragraph in the
contract, namely 13.2,
ignores, the main case advanced by TUT and
that is that there is no contract. Moreover, if there is no contract,
then payment would
be due at the end of the month or at least if in
the absence of contractual terms which can guide the parties, the
matter must
go to trial so that the trial court can ascertain whether
TUT is correct in its submission that the debt became due at the end
of the month.
[66]
Counsel for TUT submitted in addition,
however, that this is a very minor issue as the entire issue relating
to the first special
plea of prescription relates only to the invoice
or at maximum two invoices, namely those for January and February of
2016. This
is because TUT conceded in its plea that the summons were
served on 26 February 2019 and given the fact that it is common cause
that the prescriptive period is three years it results in a minor
issue in the trial. He therefore submitted in conclusion that
the
special plea as pleaded does sustain a defence and is not vague and
embarrassing (on the basis as alleged in the exception).
[67]
Even if it is said to be vague and
embarrassing it is not of the which strikes to the root of the
matter. Counsel referred in this
regard to
Jowell
v Bromwell-Jones
where it was
clearly pointed out that for an exception on that second leg, namely
vague and embarrassing to succeed it has to strike
at the root of the
entire cause of action. Counsel submitted that in this matter the
parties perfectly understand where they differ
from each other and it
is open for SMADA to file a replication and to say: “
but
you are wrong if you say the debt became due at the end of the month.
Look at the contract. 13.2 says it only becomes due one
month after
the service has been rendered and therefore you are wrong if you say
the debt became due the end of the month. There
is no vagueness.
There is no embarrassment
.”
Counsel therefore submitted that there is no merit in the first
ground of exception.
[68]
In respect of the third ground of
exception, counsel for TUT referred me to
Van
Dyk v Cordier
1965
(3) SA 723
(O)
, which he submitted was
the
locus classicus
which gives guidelines on when are insurance payments
res
inter alios acta
(“
a
thing done between others does not harm or benefit others”
).
Counsel referred me in this regard to the judgment of Mr Justice De
Villiers with whom Mr Justice Hofmeyer agreed at
page
724H
where it was held that: “
This
is an appeal from an order by a magistrate granting absolution from
the instance in respect of appellant’s claim against
the
respondent for damages to appellant’s car as a result of
respondent’s negligence. At the hearing, appellant adduced
evidence to prove that his car, which was ensured, was damaged in a
collision with another as a result of the negligent of driving
of the
respondent, that at the instance of the insurance company and
pursuant to the policy of insurance, his car was repaired
to his
satisfaction and the cost of repairs was paid by the said company. At
the close of the appellant’s case the magistrate
upheld
respondent’s application for absolution on the ground that, on
the assumption that the respondent’s negligence
had been
established, appellant had failed to prove that the policy of the
insurance had been ceded back to the insurance company
for whose
benefit the action had in fact been instituted.
…
In my view the magistrate
erred
.
As
pointed out by Mr Kumleben, who appeared on behalf of the appellant,
after appellant had prima facie proved his right to claim
damages
from the respondent, the onus was on the respondent to prove that the
appellant’s cause of action had been lost as
a result of a
cession to the insurance company or to some other person.”
[69]
Counsel for TUT also referred me to the Law
of South Africa, first reissue, Butterworths (“
LAWSA
”)
regarding when insurance payments are
res
inter alios acta.
In LAWSA Volume 7,
under the heading “
Damages
”,
paragraph 43, it is stated that: “
There
are practical guidelines as to which benefits may be taken into
account in particular circumstances in reducing the amount
of damages
to which the plaintiff is entitled and which benefits are to be
ignored
.
The
following benefits which the plaintiff has received or will probably
receive on account of his or her loss are seen as res inter
alios
acta (they are not taken into account in reducing plaintiff’s
damages): (a) benefits in terms of indemnity insurance
and
non-indemnity insurance (life assurances).
”
The authors then they give further examples.
[70]
Counsel submitted that as a general rule
this issue is not something which can be sorted out on exception. The
matter must go to
trial so that one can explore better whether the
insurance policy payment is
res inter
alios acta
or not. SMADA can ask
further particulars, ask the discovery of the insurance policy. The
trial court, which has the benefit of
hearing all of the evidence
surrounding that is in a much better position than this court to
decide whether this non-suits TUT
or not.
[71]
With reference to the matter of
Dippenaar
v Shield Insurance
1979 (2) SA
904
relied upon by counsel for SMADA,
counsel for TUT submitted that that matter can clearly be
distinguished as it dealt with something
completely different than
the patrimonial loss at stake in the present matter. (Counsel for
SMADA did not dispute this in her reply.
In stead, she explained that
the only reason she referred to
Dippenaar
v Shield
is that the matter gives a
good exposition at
page 915B-F
about
res inter alios acta,
with
reference to patrimonial damages and non-patrimonial damages.)
[72]
Counsel for TUT therefore concluded that
there is also no merit in the third ground of exception. The mere
fact that annexure “
A
”
to the first counterclaim states that money has been paid by an
insurance company does not render it a matter where TUT
cannot prove
damages. At the very best for SMADA, it is something for the trial
court. To the extent that there is an attempt to
raise an issue about
the quantification of that claim as part of the exception, counsel
submitted that there is also no merit in
that. Annexure “
A
”
shows the different components of how the damages had been calculated
and arrived at and these had been set out adequately
and thoroughly.
[73]
In respect of the fourth ground of
exception, counsel for TUT submitted that he is not aware of any
principal in our law as contended
for by counsel of behalf of SMADA,
namely, that in order for TUT to establish vicarious liability it has
to prove the identity
of the employees. In this regard he submitted
that such a requirement would be very prejudicial to many plaintiffs.
He gave the
example of for instance claims against the South African
Police Service (“
SAPS”
),
for police brutality. The claimant in such an instance usually does
not know the names of the police officials involved, but
if they had
police clothes on and they were stationery close to police vehicles
it would suffice to allege that they were police
officers. On a
practical level, in this matter it is good enough for TUT to say
these were your employees, but I do not know their
names. It is then
for SMADA to say, well on what facts do you rely that this is my
employees? Then the answer can be they had uniforms
on typically of
the nature worn by your security guards. They stood close to your
security vehicles, etc. Counsel submitted that
TUT can for instance
ask discovery of SMADA’s duty rosters for that particular
period.
[74]
Counsel therefore submitted that it is not
the law that if you cannot identify an employee in a claim against
the employer for vicarious
liability, it renders your claim of the
kind which does not disclose a cause of action or vague and
embarrassing.
[75]
In respect of the question by counsel on
behalf of SMADA that if SMADA does not know the identity of these
employees, how can it
be said that they acted within the course and
scope of their employment, counsel for TUT pointed out that as part
of the second
counter claim, TUT specifically pleaded that these
unidentified employees were as a fact all acting within the course
and scope
of their employment with SMADA. Moreover, that this was
under circumstances where SMADA is vicariously liable for their
conduct.
[76]
Counsel submitted that if one is dealing
with the kind of claim like the present, where it is alleged that
SMADA’s security
guards have actually positively damaged the
property of TUT, instead of protecting it, it is something which
gives you sufficient
information to understand what is the conduct
complained of. Counsel submitted that this is not a simple allegation
to say I suffer
damages as a result of conduct of your employees and
you are vicariously liable for them. It is specifically stated what
these
security guards have done in order to cause the damage. Whether
it was security guard A or security guard B who did it, the same
principles apply. Counsel argued that this is also a matter which can
be far better addressed at a pre-trial preparation level
by further
particulars and discovery. Counsel submitted that it might very well
be that the identities of these persons may become
known when the
parties get closer to trial. Counsel in this regard gave the example
that TUT will be able to ask SMADA in further
particulars for the
names of the persons who were on duty on that particular date. On
that level clarity will be procured.
[77]
With reference to the remark from the bench
if it can ever be within the course and scope of the employment of a
security guard
to break down a fence which he or she was suppose to
protect, counsel for TUT referred me to the judgment of Mr Justice of
Appeal
Nienaber in the matter of
Minister
of Safety and Security v Japmoco Motors
2002 (5) SA 649
(HHA)
.
At paragraph 11 of the judgment it was held that whether conduct fell
within an employee’s course and scope of employment
was a
question of fact. The court stated in this regard that it is
sometimes a question of degree whether such conduct just fall
in or
outside an employee’s employment and that the dividing line are
not clear. What happened in this matter is that the
SAPS officials
who were employed at the vehicle theft unit at Rustenburg became part
and parcel of a vehicle theft syndicate. They
assisted the thieves in
issuing false clearances that the vehicles have not been registered
as stolen on the records of the police.
This enabled the thieves then
to go with that clearance certificates to motor dealers and to sell
the vehicles as not listed as
stolen. It later became apparent that
these vehicles were actually stolen and that the police officers in
question knew about it
because they received kickbacks for granting
these false clearance reports. The police argued in that matter that
the police officers
involved acted beyond the scope and course of
their employment, and that the SAPS could therefore not be held
vicariously liable.
However, the Supreme Court of Appeal, then the
Appellate Division, held that they acted within the course and scope
of their employment.
Counsel also cited other examples and concluded
that this is not an instance where this court can on the exception
stage have regard
to this. It is a matter that must be covered in the
pleadings.
[78]
SMADA will be fully entitled to deny the
allegations relating to vicarious liability and the trial court will
hear the evidence
and hear whether the guards had been on duty, and
the things that played a part as to the degree of control of SMADA.
Furthermore,
did SMADA as such enabled these persons to do what they
actually did by putting them there in their employment. They had to
be
at the site where they then came to commit damages and so forth.
Council submitted that those are issues for the trial court.
[79]
This then according to counsel for TUT
disposed of the fourth ground of exception.
[80]
In respect of the fifth ground of
exception, counsel for TUT submitted that it clearly has no merit
whatsoever. Counsel referred
me to the fact that the basis of this
exception is that TUT is claiming damages, but has not according to
SMADA articulated how
the damages have been calculated and arrived at
as prescribed by rule 18 of the rules.
[81]
Counsel for TUT disagreed. It was argued
that annexed to the second counterclaim is a detailed quotation, i.e.
annexure “
B
”.
This enabled whoever issued it and to whoever it was issued to assess
the damages. There is a description of the nature
of the repairs, the
components which have to be utilised as part of the repairs, etc. It
was therefore submitted that for purposes
of rule 18(10), this
clearly disclosed a claim and is clearly not vague and embarrassing.
[82]
It was also submitted that it should be
remembered this is an exception. There is a big difference between an
exception on the basis
of vagueness and embarrassment and an
application to strike out because you have not complied with the
rules. It was submitted
that even if it is accepted that the second
counter claim is vague and embarrassing for the reason as alleged,
there can be no
prejudice. SMADA can get all the particulars they
require as part of further particulars. They can ask discovery. By
the time the
parties get to trial, there will be absolutely no
prejudice. They can respond to those allegations. These allegations
are not of
the kind, which you cannot respond to.
[83]
In respect of the submission by counsel on
behalf of SMADA that SMADA does not know whether what is at stake are
repairs or a replacement,
counsel for TUT submitted that from the
quotation that these seem to be the costs for replacement. However,
even if there is uncertainty
there is at this stage a fixed amount
attributed per quantity, there is a price, the component of the
value-added tax is differentiated
from the cost as such and SMADA can
plead to this and get particularity at a later stage whether this was
in fact a replacement
or whether it was a new item.
DISCUSSION
[84]
As I see the matter
TUT’s amended plea and counterclaim and SMADA’s exception
can aptly be described as the court did
in the
Quinlan
v MacGregor
matter referred to herein
at
page 3
87B
namely that: “
The declaration is
certainly not a masterpiece of draughtsmanship and in several
respects it could certainly be improved on. But
whatever may be the
faults from which it suffers, it does not seem to me to suffer from
the particular lack of clarity complained
of in the exception.
”
[85]
In so far as the first ground of exception
is concerned, if SMADA is held to the complaint raised in its
exception, as it should
be, and if it is accepted that what is
pleaded as part of the special plea of prescription is correct, as
this court should do
at this exception stage, then the special plea
clearly sustains the defence of prescription and this ground of
exception has no
merit.
[86]
I agree with counsel for TUT that it
matters not that the service agreement may refer to a different date
for when payment for the
services became due. This may render the
plea vague and embarrassing because what is alleged in the plea
differs from what appears
from the service agreement, but this was
not the complaint in the exception.
[87]
I also agree with counsel for TUT that to
hold TUT to a paragraph in the contract, namely 13.2, ignores, the
main case advanced
by TUT and that is that there is no contract.
[88]
In any event it appears that the
prescription issue forms a very minor part of the disputes between
the parties and even if it is
said to be vague and embarrassing it is
not of the type, which strikes to the root of the matter.
[89]
SMADA is also not prejudiced as it can in
my view easily plead to this. It knows exactly what case it has to
meet. If it differs
from TUT, and contends that none of its claim
have prescribed, it can plead that: “
There
is no vagueness. There is no embarrassment
.”
[90]
In so far as the remaining portion of the
third ground of exception is concerned the only complaint is that the
second counterclaim
fails to disclose a cause of action, because
ex
facie
annexure “
A
”,
TUT accepted payment in the sum of R576,902.93 from its insurer. It
was therefore already compensated for its loss.
[91]
It needs to be pointed out that just
because
ex facie
annexure “
A
”,
TUT was prepared to accept payment in the sum of R576,902.93 from its
insurer, does not mean that it was actually paid
this amount.
Annexure “
A”
also provides that it was a condition of the agreement of loss that
no settlement as incorporated therein shall be binding until
the
offer is signed and accepted by the Underwriter. There is no
indication whether the underwriter in fact accepted the agreement
and
signed it.
[92]
The above is besides the fact that any
payment by TUT's insurers may be
res
inter alios acta
. Based on the
authority of
Van Dyk v Cordier
1965 (3) SA 723
(O)
and LAWSA TUT’s counsel referred me to, it does not follow that
TUT did not suffer loss and has failed to disclose a cause
of action
merely because an agreement of loss exists. Also, if I for present
purposes accept the truth of TUT’s allegation
as part of the
second counter claim that it did suffer this loss, it follows that
the remaining part of the third ground of exception
is bad.
[93]
I agree with counsel for TUT that it cannot
be decided at this exception stage whether any payment by the insurer
is
res inter alios acta
or not. That will be something for the trial court to determine after
hearing the evidence.
[94]
To the extent that counsel for SMADA as
part of her address on the third ground of exception argued that the
first counterclaim
read with annexure “
A”
lacked particularity regarding how TUT arrived at the amount of its
damages, the simple answer is that it was not open for SMADA’s
counsel to argue this, as it does not form part of the grounds of
exception. In any event, the arguments in this regard lack merit
and
I agree with counsel for TUT that annexure “
A
”
does show the different components of how the damages had been
calculated and arrived at and these had been set out adequately
and
thoroughly.
[95]
In so far the fourth ground of exception is
concerned, I do not accept as correct counsel for SMADA’s
submission that in order
for TUT to have disclosed a cause of action,
and this ground of exception only lies against this, they had to
plead the identities
of the security guards in question. This is
simply not the legal position. As I see it, the fact that TUT alleges
that these unnamed
persons were employees of SMADA is at this stage
sufficient. This is the
facta probanda
that needed to be pleaded. The same applies to the allegation that
they acted in the course and furtherance of their employment.
[96]
Under the circumstances, the fourth ground
of exception can also not succeed.
[97]
The fifth ground of exception suffers the
same fate. I agree with counsel for TUT that this ground of exception
clearly has no merit.
Annexure “
B”
provides a description of the nature of the repairs, the components
which have to be utilised as part of the repairs, etc. I agree
with
counsel for TUT that it is important to keep in mind that there is a
big difference between an exception on the basis of vagueness
and
embarrassment and an application to strike out because a party has
not complied with the rules. Moreover that even if it is
accepted
that the second counter claim is vague and embarrassing for the
reason as alleged, there can be no prejudice.
COSTS
[98]
In TUT’s heads of argument it asked
for a special cost order against SMADA. However, in argument before
me counsel for TUT
agreed that this matter is not worthy of a
punitive cost order.
[99]
I see no reason why costs should not follow
the event.
[100]
Counsel for TUT submitted that
inter
alia
since a variety of grounds of
exception were raised, that this court in the exercise of its
discretion order that to the extent
that senior counsel was involved
in the matter, that the costs will include those consequent upon the
engagement of senior counsel.
I see no reason why such an order ought
not to be made.
[101]
Under the circumstances the following
orders are made.
ORDER
1.
The plaintiff / excipient’s exception
dated 7 October 2019 is dismissed with costs.
2.
The plaintiff is ordered to pay the
defendant’s costs, those costs to the extent that senior
counsel was involved in the matter,
to include the costs consequent
upon the engagement of senior counsel.
H
G A SNYMAN
Acting
Judge of the Gauteng High Court
Pretoria
Virtually
heard: 22 February 2021
Electronically
delivered: 16 March 2021
Appearances:
For
the plaintiff / excipient:
Adv U van Niekerk (formerly
Lottering)
Instructed
by Waldick Jansen van Rensburg Inc
For
the defendant:
Adv MP van der Merwe SC
Instructed
by Jarvis Jacobs Raubenheimer