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[2021] ZAGPPHC 313
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Barlow World South Africa (Pty) Ltd v Pat Malabela Electrical Contractors and Meter Readers and Another (65643/2017) [2021] ZAGPPHC 313 (6 May 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: 65643/2017
BARLOW
WORLD SOUTH AFRICA (PTY) LTD
(Registration
number 1946/021661/07)
Plaintiff
/ Respondent
and
PAT MALABELA
ELECTRICAL CONTRACTORS AND METER READERS CC
(Registration
number 2000/043538/23)
First
Defendant / Excipient
PAT
J MALABELA
Second
Defendant / Excipient
JUDGMENT
H
G A SNYMAN AJ
INTRODUCTION
[1]
This is an exception by the first and second defendants / excipients
(where applicable collectively referred to herein as “
the
excipients
”) against the plaintiff’s particulars of
claim as amended on 11 February 2020 (“
the particulars of
claim”
).
[2]
Although the introductory paragraph of the exception dated 6 August
2020 states that it is an exception on the basis that the particulars
of claim are vague and embarrassing and/or lack averments
necessary
to sustain a cause of action, it is apparent from the exception
itself that it is only brought on the basis that the
portions of the
particulars of claim complained about are vague and embarrassing.
BACKGROUND
[3]
The plaintiff is a private company trading as Avis Rent a Car. The
plaintiff instituted action against the excipients on 19 September
2017. As part of the claim, the plaintiff is claiming payment
in the
amount of R754,820.63 from the excipients with interest at the rate
of 9% per annum calculated from 17 August 2017 to final
date of
payment.
[4]
The claim against the first defendant is based thereon that the first
defendant rented motor vehicles from the plaintiff for which it has
not paid. It appears from paragraph 5 of the particulars of
claim
that the second defendant is joined as a defendant since it is
alleged that he bound himself as surety and co-principal debtor
with
the first defendant in favour of the plaintiff in terms of a written
deed of suretyship annexed as annexure “
B
” to the
particulars of claim.
[5]
It appears from paragraph 3.1 of the particulars of claim that it
is
pleaded that or about 11 February 2016 and at or near Johannesburg,
the first defendant applied in writing for a corporate account
with
the plaintiff, subject to the standard “
TERMS AND CONDITIONS
OF SUPPLY AND USE OF AVIS CHARGE CARDS AND CAR RENTAL VOUCHERS
”.
[6]
According to the particulars of claim, the plaintiff is not in
possession
of the original of the written application as it is in the
possession of the first defendant. A true copy of the face of the
written
application is attached to the particulars of claim as
annexure “
A1
”. A true copy of the standard “
TERMS
AND CONDITIONS OF SUPPLY AND USE OF AVIS CHARGE CARDS AND CAR RENTAL
VOUCHERS
” is attached to the particulars of claim as
annexure “
A2
”.
[7]
It is pleaded in paragraph 3.5 of the particulars of claim that on
or
about 11 February 2016 the plaintiff approved the first defendant’s
application under Avis account number AV884049300004.
According to
paragraph 3.6 a written “
Approved Corporate Account
Application Agreement”
was entered into between the
plaintiff and the first defendant on or about 11 February 2016.
[8]
In paragraph 4 of the particulars of claim it is pleaded that:
“
The express,
alternatively
the implied,
further
alternatively
tacit, terms and conditions of the written
Approved Corporate Account Application Agreement that are material to
[the] action are:
4.1
The First Defendant would, from time to time, rent vehicles from the
Plaintiff at the rates agreed
upon between the parties.
4.2
Upon presentation to the Plaintiff of a card or voucher issued under
these terms and conditions
for the renting of a vehicle by any
person, the person will be required to sign a rental agreement.
4.3
If, in terms of such a rental agreement, any of these Terms and
Conditions or any other arrangements
or agreements between the
Plaintiff and the First Defendant are varied by or at the instance of
such person, the First Defendant
shall be bound by such variations in
respect of rental of such vehicle.
4.4
In the event of conflict between these Standard Terms and Conditions
and the Terms and Conditions
of a rental agreement offered by the
Plaintiff, the provisions of the rental agreement shall prevail.
4.5
The Plaintiff will invoice the First Defendant in respect of each
motor vehicle rented by the
First Defendant at the completion of each
rental.
4.6
Payment of each invoice becomes due upon receipt of the invoice.
4.7
Unless queries by the First Defendant are notified to the Plaintiff
within seven days of receipt
of the invoice, such invoice shall be
deemed to be accurate and complete for all purposes.
4.8
The Plaintiff reserves the right to levy a late payment charge at the
rate of 2.5% per four-week
period, calculated on a daily basis
commencing on the due date for payment.
”
[9]
In paragraph 6 of the particulars of claim it is pleaded that:
“
Subsequent to the
agreement, the First Defendant rented motor vehicles from the
Plaintiff on 49 occasions during the period October
2016 to July
2017.
”
[10]
It is pleaded in paragraph 7 of the particulars of claim that in
fulfilment of its
obligations towards the first defendant in terms of
the contract, the plaintiff duly furnished the first defendant with
invoices
in respect of each motor vehicle rented by the plaintiff to
the first defendant at the completion of each of the 49 rentals. True
copies of the 49 invoices in question are attached to the particulars
of claim as annexure “
D1
” to “
D49
”.
It is pleaded that the contents of these invoices are incorporated by
reference. A schedule setting out the relevant dates
and amounts of
each of these invoices is annexed to the particulars of claim as
annexure “
C
”.
[11]
It is pleaded in paragraph 9 that each of the invoices bears a date,
which date corresponds
with the date upon which the first defendant
received the invoice concerned and was accordingly due and payable on
a given date.
It is pleaded in paragraph 11 that in breach of its
obligations towards the plaintiff in terms of the contract, the first
defendant
failed to make payment on the 49 invoices. Based on this it
is pleaded that the first defendant is indebted to the plaintiff for
the said amount.
[12]
During January 2020 the plaintiff gave notice of its intention to
amend its particulars
of claim, which amendment was affected on 12
February 2020. It is this amended particulars of claim which forms
the subject of
this exception.
[13]
The exception dated 6 August 2020, i.e. the one relevant for purposes
of this application
(referred to herein as “
the exception
”)
is the third exception against the particulars of claim. The first
two exceptions noted on respectively 26 February 2020
and 20 March
2020 were not proceeded with, but withdrawn by the excipients. This
was on the basis of “
technical difficulty
”: The
first exception was not signed by an attorney with the right of
appearance in this Court. The second exception was
not signed at all.
[14]
The grounds of the exception are that:
“
a. In paragraph
3 of the particulars of claim it is asserted that the First Defendant
applied for a corporate account (‘the
application’)
subject, allegedly, to certain terms and conditions (‘the
conditions’).
b. The
application is attached as annexure ‘A1’ to the
particulars of claim and the conditions are annexed
to the
particulars of claim as annexure ‘A2’.
c. The
application and the conditions are allegedly to embody a written
agreement between the parties in terms
whereof the First Defendant
would rent vehicles from the Plaintiff (‘the agreement’).
d. In clause 2 of
the conditions it states that:
‘
In
making this application, the Applicant agrees to the terms and
conditions printed on the carrier with which a card is issued
and on
the vouchers, which terms and conditions shall form part of the
conditions …
Upon
presentation to Avis of a card or voucher under these terms and
conditions for renting of a vehicle by any person, the person
will be
required to sign a rental agreement. If in terms of such rental
agreement any of these terms and conditions or any other
arrangements
or agreements between Avis and the Applicant are varied by or at the
instance of such person, the Applicant shall
be bound by such
variations in respect of the rental of such vehicle.’
e. In paragraph 6
to 10 of the particulars of claim it is alleged that the First
Defendant rented motor vehicles from
the Plaintiff on 49 occasions
and the charges imposed by the Plaintiff for these 49 rentals form
the subject matter of the Plaintiff’s
claim.
f. On
the Plaintiff’s version, and having regard to its reliance on
the conditions, the Plaintiff,
in addition to the agreement, would
have had to have concluded 49 separate rental agreements with the
First Defendant and issue
vouchers in respect of each rental
agreement such that each such rental agreement, read with the form,
the conditions and the vouchers,
would create the agreement between
the Plaintiff and the First Defendant in relation to such rental.
g. The Plaintiff
has however, failed to refer in its particulars of claim to any of
the 49 separate rental agreements
that the Plaintiff would have to
have concluded with the First Defendant.
h. In the
circumstances the particulars of claim are vague and embarrassing and
are excipiable in that regard.
”
THE TEST TO BE
APPLIED
[15]
Rule 18(4) of the Uniform Rules of Court (“
the rules
”)
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.
”
[16]
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.
Makgae v Sentraboer (Koöperatief)
Beperk
1981 (4) SA 239
(T) at 245D
puts the point
crisply.
[17]
An exception based thereon that the pleading is vague and
embarrassing, 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. See
Van
Loggerenberg,
Erasmus: Superior Court Practice
RS 15, 2020 at D1-298A – D1-301
. In
Jowell v
Bramwell-Jones and Others
1998 (1) SA 836
(W) at 899E, D
and G
it is
inter alia
stated in this regard that: “
The
test formulated in Factory Investments (Pty) Ltd v Record industries
Limited
1957 (2) SA 306
(T) following Keely v Heller
1904 TS 101
is
whether an intelligible cause of action can be ascertained. An
exception that a pleading is vague and embarrassing strikes at
the
formulation of the cause of action and not its legal validity: Trope
and Others v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A). An
exception that a pleading is vague and embarrassing cannot be
directed at a particular paragraph within a cause of action.
The
exception must go to the whole cause of action, which must be
demonstrated to be vague and embarrassing.
”
[18]
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
.]
[19]
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 …
”.
[20]
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.
”
[21]
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 421I to
422A
.
[22]
In summary, therefore, as I see it, 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.
[23]
It was common cause between the parties at the hearing of this matter
that an excipient
is bound to the grounds listed in its exception and
cannot go wider than that in argument. Counsel for the plaintiff
referred me
in this regard to
Jowell v Bramwell-Jones and
Others
supra
at
898A-C
where the
following is stated: “
I agree with counsel for the plaintiff
that these general statements apply to an exception. A party is bound
by the terms in which
it is framed and by the issues which it raises.
Erasmus Superior Court Practice B1-163. Inkin v Borehole Drillers
1949 (2) SA 366
(A) at 373 provides examples of a refusal to
entertain a contention not covered by the grounds of exception. See
also Jack Smith
and Joe’s (Pty) Ltd
1929 TPD 323
at 327. An
exception that a cause of action is vague and embarrassing is an
entirely different proceeding from one based on Rule
30. It does not
allow a court to treat the matter as if there was non-compliance with
Rule 18, which deals with matters to be contained
in pleadings.
”
ARGUMENT ON BEHALF
OF THE EXCIPIENTS
[24]
It was argued on behalf of the excipients that rule 18(6) of the
rules provides that
a party seeming to rely on a contract is to
provide particular details thereto, including where, when and by whom
it was concluded,
whether it is oral or in writing, in which event it
is to be annexed to the pleadings. When challenged in argument on
behalf of
the plaintiff that the excipients cannot rely on this rule
for purposes of the exception as it was not raised in their grounds
of exception, and that in any event non-compliance with the rules is
something different than an exception, counsel for the excipients
referred me in reply to the matter of
Yannakou v Apollo Club
1974 (1) SA 614
(A)
. She submitted that this is authority for the
principal that with regards to for instance the pleading of a
statute, it is not
necessary to have cited or quoted directly what
the statute had to say as long as it is clearly understood that this
is what is
being relied upon. She submitted that the same applies in
so far as exceptions are concerned, i.e. that to the extent that it
is
clear on what the excipient relies for purposes of the contention
that the pleadings are vague and embarrassing, it is not necessary
for the specific rule based upon which the complaint is made to be
mentioned. She also referred me to the commentary in Erasmus
under
rule 18(6) where it is mentioned that exceptions were raised in
respect of non-compliance with rule 18(6).
[25]
Counsel for the excipients argued that it is incumbent upon a
plaintiff to plead
a complete cause of action which identifies the
issues upon which the plaintiff seeks to rely and on which evidence
will be led.
It was argued that for purposes of pleading, it is
essential for the excipients to know what the contract is on which
the plaintiff
is relying. If that is not the case, the pleadings
would be rendered vague and embarrassing.
[26]
It was argued that in the present matter, the plaintiff relies on a
written agreement
made up of the “
Application and the Terms
and Conditions thereto
”. According to counsel for the
excipients the plaintiff pleads the specific material clauses on
which it relies for its claim.
It was then argued that the
plaintiff’s pleaded clauses include that on the presentation to
the plaintiff of a card or voucher
issued under these terms and
conditions for renting of a vehicle by any person, the person “
will
be required to sign a rental agreement
”.
[27]
Counsel for the excipients emphasised that in terms of such rental
agreement any
of the terms and conditions or any other arrangement or
arrangements between the plaintiff and the first defendant are varied
by
or at the instance of such person: “
the first defendant
shall be bound by such variations in respect of the rental of such
vehicles and in the event of conflict between
the Terms and
Conditions and the Rental Agreement offered by the Plaintiff, the
provisions of the Rental Agreement shall prevail.
”
[28]
With reference to the fact that the plaintiff pleaded that there were
49 invoices
issued, it was argued on behalf of the excipients that it
appears that the plaintiff is actually relying on 49 rentals, which
would
imply, on a basic reading of the terms and conditions, that
there should be the 49 rental agreements each of which would vary the
terms of the application and the terms and conditions.
[29]
The cause of complaint in argument was that the plaintiff failed to
attach any rental
agreements and in the circumstances the excipients
are not able to plead to an agreement which had been varied. It was
argued that
without being afforded an opportunity to have sight of
the rental agreements, the excipients are prejudiced in pleading to
the
particulars of claim, in that the agreement upon which the
plaintiff relies has been omitted.
[30]
It was also argued in addition that the terms and conditions
reference the issue
of a card or voucher, which contains its own
terms and conditions that supplement those which form part of the
application. It
was then argued that the plaintiff does not attach
any of these cards or vouchers for the 49 rentals and it is therefore
not possible
for the excipients to ascertain to what extent the
initial agreement has been supplemented.
[31]
The submission was that it is essential for the excipients to know
what the contract
is that the plaintiff seeks to rely on. The
submission was made that in the face of the written agreement having
been supplemented
and varied the plaintiffs are not able to ascertain
what this contract is.
[32]
In response to the argument on behalf of the plaintiff that the
second defendant
knows everything, i.e. it has the contract, it has
the registration numbers of the vehicles rented, the periods for
which they
were rented, by who and the fee as this appears from the
invoices, counsel for the defendant disagreed. She submitted that
this
is the bone of contention, i.e. that the first defendant does
not have the agreements in question. It has the application and the
standard terms. She referred me in this regard to clause four of the
standard “
TERMS AND CONDITIONS OF SUPPLY AND USE OF AVIS
CHARGE CARDS AND CAR RENTAL VOUCHERS
” where it is stated
under the heading “
Payment”
that: “
Avis
will invoice the Applicant in respect of each vehicle rented by a
Cardholder or Renter and/or at the completion of each rental,
the
Applicant or Cardholder or Renter may request a copy of the fully
completed rental agreement.
” She submitted that the fact
that there is a reference to an “
invoice
” and a
“
rental agreement
” in the same sentence, indicates
that an invoice is not sufficient to cover what is supposed to be in
the written rental
agreement. She also submitted that based on the
fact that an agreement is referred to in the terms, the excipients
are allowed
to request a copy of it.
[33]
Counsel for the excipients therefore concluded for these reasons,
that the particulars
of claim are vague and embarrassing and that it
was incumbent upon the excipients to except thereto.
ARGUMENT ON BEHALF
OF THE PLAINTIFF
[34]
It was argued that the plaintiff’s amended particulars of claim
are neither
vague nor embarrassing. It was submitted in this regard
that the amended particulars of claim is such that a clear and single
meaning
can be distilled therefrom. It was in this regard
inter
alia
submitted in the heads of argument that the rules have over
the years progressively been amended to require fewer and fewer
averments
to be made. Reference was made in this regard to the words
of Botha J in the matter of
South African Railways and Harbours
v Deal Enterprises (Pty) Ltd
1975 (3) SA 944
(W) at 947
where it was held that:
“
Whereas formerly a
plaintiff was obliged to furnish such particulars as were ‘reasonably
necessary’ to enable the defendant
to plead or tender, the
position is now that such particulars only are required to be
furnished as are
strictly necessary
[plaintiff’s
emphasis].
For either of the said purposes; the new Rule has
restricted the scope of request of particulars to ‘absolute
essential’
…
”
[35]
Even if the particulars of claim is said to be vague and embarrassing
counsel for
the plaintiff submitted that it is not of the kind which
strikes to the root of the matter. Counsel referred in this regard to
Jowell v Bromwell-Jones
supra
where it was
clearly pointed out that for an exception to succeed on the basis of
the pleadings being vague and embarrassing, it
has to strike at the
root of the entire cause of action.
[36]
Counsel for the plaintiff referred me in this regard to the matter of
Venter and Others NNO v Barritt; Venter and Others NNO v
Wolfsberg Arch Investments 2 (Pty)
2008 (4) SA 639
(C) at
pages 643I - 644A
where at page 645, more specifically paragraph
16, it is specifically said that: “
The basic requirement is
that the defendant must have a clear enough exposition of the
plaintiff’s case to enable it to take
instructions from the
client and file an adequate response to the claim in the form of a
plea.
” It was argued that the defendant should be in the
position to admit, deny, or admit and avoid, or confess and avoid.
This,
he submitted, may consist of a bare denial seriatim of all
averments in the particulars of claim, as long as there is no
ambiguity
in such denial.
[37]
Counsel for the plaintiff submitted that it would seem that the
excipients want to
rely on specific terms and conditions only without
looking at the terms and conditions as a whole. He submitted that if
one has
regard to all the paragraphs pleaded, with reference to the
printed terms and conditions, which is annexed as annexure “
A2
”,
that is incorporated in the terms and conditions, the rental
agreements are there, and they are transactions which form
part and
parcel of the agreement. It is an open, “
umbrella”
agreement. What this means, it was submitted, is that the excipients
can transact on that account, but they have to pay the full
amount of
all their transactions in terms of the main agreement. Counsel for
the plaintiff submitted that it is clear from the
particulars of
claim that on 49 occasions the first defendant or its employees
rented motor vehicles from the plaintiff. That is
not vague and
embarrassing. That is what the first defendant “
purchased”
.
The plaintiff pleaded the
facta probanda
. The
facta
probantia
is how the plaintiff will be able to prove that which
it pleaded.
[38]
Counsel for plaintiff submitted that what was pleaded is that each
time the person
renting the vehicle has to sign a rental agreement,
but it goes further than that, and the excipients stopping there is a
red herring.
He submitted that the schedule, being the statement as
well as the individual invoices, is pleaded in paragraph 4.5 of the
particulars
of claim. The position as pleaded is that the plaintiff
will invoice the first defendant in respect of each motor vehicle
rented
by the first defendant at the completion of each rental. He
submitted that this happened, and this is why there is an umbrella
agreement. He submitted that this falls under the open agreement,
namely that you can rent as many vehicles as you want to. It says
that the plaintiff will invoice the first defendant in respect of
each motor vehicle rented by the first defendant at the completion
of
each rental. Payment of each invoice becomes due upon receipt of the
invoice, unless queries by the first defendant are notified
to the
plaintiff within 7 days of receipt of the invoice. Such invoice shall
be deemed to be accurate and complete for all purposes.
Therefore it
is due, owing and payable.
[39]
Regarding the submission on behalf of the excipients that there is
the indication
that there is another contract, which terms may differ
from the overall agreement, which causes prejudice as at the trial it
may
come out that there are different terms and so forth, counsel for
the plaintiff submitted that the excipients have the right to
ask for
further particulars for trial purposes, and they also have the right
to ask for discovery. If they are not satisfied with
discovery then
they may proceed to ask for further and better discovery. If that is
not at hand, they may ask that the pleading
be struck. So, they are
not remediless. He submitted that the particulars and the annexures
thereto have to be read
in toto
. The excipients cannot just
pick out one sentence. If it is read
in toto
, then it is not
vague and embarrassing. There is a proper cause of action made out to
which the excipients know exactly what they
have to answer to. It has
to answer to whether it is indebted to the plaintiff in terms of the
overall agreement in the amounts
as set out in the statement, which
is the schedule, as well as the invoices. Counsel for the plaintiff
submitted that there can
be no doubt that the excipients know exactly
what the plaintiff’s case is.
[40]
Counsel for the plaintiff agreed with my statement from the bench
that the excipients
are parties to this agreement. They can of course
plead that the terms of the contract that the plaintiff alleges, have
been changed.
It is not just for the plaintiff to come and say this
is the agreement.
[41]
In response to a submission on behalf of the excipients that a
different account
number appears on the invoices, it was submitted
that if a motor vehicle is rented, each transaction gets a different
number. However,
the overall number remains the same.
[42]
Counsel for the plaintiff then went through the particulars of the
invoices showing
that all the necessary details appear from these
invoices, which would enable the excipients to plead. It was
therefore submitted
that there was clearly no prejudice for the
excipients.
[43]
It was also submitted that an excipient is obliged to confine his
complaint to the
stated grounds of his exception. (
Jowell v
Bromwell-Jones
1998 (1) SA 836
(W) at 899A
.) To the
extent that the excipients in the heads of argument filed on their
behalf and before this court relied on rule 18(6) of
the rules in
support of the exception, it was submitted that this amounted to an
attempt to go outside their grounds of exception
as there was no
reliance placed on non-compliance with rule 18(6) in the grounds of
exception.
[44]
Counsel for the plaintiff proceeded to submit that compliance with
rule 18 is a different
matter to an exception. Particulars of claim
may fail to comply with rule 18, thus bringing into play rule 30 via
rule 18(12),
without being vague and embarrassing.
[45]
Counsel for the plaintiff therefore submitted that it can never be
said that the
pleadings are vague and embarrassing.
DISCUSSION
[46]
As I see it, based on the excipients’ grounds of exception, in
particular paragraphs
f, g and h thereof, the excipients’ sole
cause of complaint is that on the plaintiff’s version the
plaintiff would
have had to conclude 49 separate rental agreements
with the first defendant, and issue vouchers in respect of each of
these 49
separate rental agreements, such that each such rental
agreement, read with the form, the conditions and the vouchers, would
create
the agreement between the plaintiff and the first defendant in
relation to such rental.
[47]
The complaint is then that the plaintiff has
failed to refer
in its particulars of claim to any of the 49 separate rental
agreements that the plaintiff would have to have concluded with the
first defendant, which, under the circumstances, renders the
particulars of claim vague and embarrassing and therefore excipiable.
[48]
The complaint is therefore not that copies of the inferred 49
agreements are not
attached to the particulars of claim, but that
they are not referred to in the particulars of claim.
[49]
Rule 18(6) provides that a party who in his pleadings relies on a
contract shall
state whether the contract is writing or oral and
when, where and by whom it was concluded, and if the contract is in
writing a
true copy thereof, or of the part relied on in pleading
shall be annexed to the pleading.
[50]
It is, however, not the plaintiff who pleads in the particulars of
claim that there
were these 49 separate contracts. It is the
excipients who allege this based on their analysis of the pleadings,
namely that there
must have been these 49 contracts. It then
complains that the plaintiff failed to refer to these. This, in my
view, is untenable,
even if I accept that the excipients by reference
refer to rule 18(6), even though they did not expressly say so.
[51]
It is simply not pleaded by the plaintiff on a basic reading of the
pleadings that
there were 49 rental agreements each of which would
vary the terms of the application and the terms and conditions. In
any event,
the first defendant was a party to the agreement entered
into between it and the plaintiff. If it contends that the terms were
varied and different terms applied than what appears from the
plaintiff’s pleading, that may be pleaded by it in answer to
the particulars of claim.
[52]
As I see it, the plaintiff pleaded a complete cause of action, which
identifies the
issues upon which the plaintiff seeks to rely and on
which evidence will be led. It cannot in my view be said that the
excipients
do not know what the contract is on which the plaintiff is
relying.
[53]
The excipients’ exception in the words of
Jowell v
Bramwell-Jones and others
supra
, with reference to the
Trope
matter
supra
, is directed at a particular
paragraph within a cause of action, in this instance not even a
paragraph of the pleading but a paragraph
of the standard “
TERMS
AND CONDITIONS OF SUPPLY AND USE OF AVIS CHARGE CARDS AND CAR RENTAL
VOUCHERS
”. As I see it, the exception does not go to the
whole of the cause of action, which must be demonstrated to be vague
and
embarrassing. It does not take into account the plaintiff’s
case pleaded as a whole.
[54]
It can, in my view, also not be argued that the excipients are
“
seriously prejudiced
” if the offending
allegations are not expunged. The exception does not go to the whole
of the cause of action. It is pinpointed
at a particular paragraph.
[55]
As I therefore see it, the excipients have failed to show vagueness
amounting to
an embarrassment and embarrassment amounting to
prejudice. Their exception can therefore not succeed.
[56]
As I see it, the excipients are clearly able to come to trial
prepared to meet the
case of the plaintiff and will not be taken by
surprise. To the extent that they require further particulars, these
can be requested.
[57]
If the excipients allege that there were non-compliance with the
rules by the plaintiff
not annexing agreements to its particulars of
claim on which it relies, they should have launched rule 30
proceedings if they thought
they were entitled to do so. They cannot
now raise this as part of this exception. Moreover, if the excipients
contend that reference
is made to a document (the alleged other
agreement) in the terms and conditions where it is referred to in the
same sentence than
an invoice and that they are entitled to it, they
could have sought the production of this document in terms of rule
35(12), although
the alleged reference to the document was only made
in the annexure, i.e. paragraph 4 of the standard “
TERMS AND
CONDITIONS OF SUPPLY AND USE OF AVIS CHARGE CARDS AND CAR RENTAL
VOUCHERS
” under the heading “
PAYMENT
”.
See
Democratic Alliance and others v Mkhwebane and another
(13 70/2019)
[2021] ZASCA 18
(18 March 2021) paragraph 37. But the
time for all this is long past. By referring to the said remedies, I
do not say that the
excipients are entitled to it. Reference to these
is merely to show that the excipients attempt to do as part of this
exception
should have been done under the different provisions of the
rules. What this application is concerned with is whether plaintiff’s
particulars of claim are vague and embarrassing. In my view, they are
not.
[58]
Even if I am wrong that the particulars of claim are not vague and
embarrassing it
is, in my view, not of the kind which strikes at the
root of the matter. As I see it, the excipients have a clear enough
exposition
of the plaintiff’s case to enable them to provide
instructions and to file an adequate response to the claim in the
form
of a plea. The excipients are clearly in the position to admit,
deny, or admit and avoid, or confess and avoid.
[59]
In the result, I find that the excipients’ exception lacks
merit and ought
not to be upheld.
COSTS
[60]
Counsel for the plaintiff asked me to order the excipients to pay the
costs.
[61]
I see no reason why costs should not follow the event.
[62]
Under the circumstances the following orders are made.
ORDER
1.
The exception of the first and second defendants / excipients
dated
6 August 2020 is dismissed with costs.
2.
The first and second defendants / excipients are ordered to
pay the
costs of the plaintiff / respondent.
H
G A SNYMAN
Acting
Judge of the Gauteng High Court
Pretoria
Virtually
heard: 24 February 2021
Electronically
delivered: 6 May 2021
Appearances:
For
the plaintiff / respondent:
Adv
B “
Birgit
” Brammer, instructed by Faber Goertz
Ellis Austen Inc.
For
the defendants / excipients:
Adv
MCC “
Toy
” De Klerk, instructed by Snyman de
Jager Inc.