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[2021] ZAGPPHC 289
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Mmamoleboge Investments CC and Others v Crimson and Properties 351 (Pty) Ltd and Others (23731/2018) [2021] ZAGPPHC 289 (11 May 2021)
IN THE HIGH COURT
OF SOUTH AFRICA
GAUTENG
PROVINCIAL DIVISION, PRETORIA
CASE
NO
.: 23731/2018
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
MMAMOLEBOGE
INVESTMENTS CC 1
st
PLAINTIFF
KOPANO CREATIVE
CONCEPTS CC 2
ND
PLAINTIFF
KGONI TRADING CC t/a
3
RD
PLAINTIFF
KGONI CIVILS &
ENGINEERING
and
CRIMSON &
PROPERTIES 351 (Pty) LTD
1
st
DEFENDANT/EXCIPIENT
t/a CRIMSON KING
DEVELOPMENTS
APIL & ASSOCIATES
ARCHITECTS & PROJECT MANAGERS 2ND DEFENDANT
INSIKA QUANTITY
SURVEYORS (PTY) LTD
3
RD
DEFENDANT
ONE G SERVICES (PTY)
LTD
4
TH
DEFENDANT
THE MEC: DEPARTMENT OF
HUMAN SETTLEMENTS,
5
TH
DEFENDANT
GAUTENG PROVINCE
HEAD OF DEPARTMENT, OF
HUMAN SETTLEMENTS,
6
TH
DEFENDANT
GAUTENG
PROVINCE
JUDGMENT
NYATHI
AJ
A.
INTRODUCTION
[1]
This is an exception
hearing wherein the First Defendant has taken exception against the
Plaintiff's amended declaration on the
grounds that the amended
declaration is vague and embarrassing and in addition, lacks the
necessary averments to sustain a cause
of action against the First
Defendant. The First Defendant in its Rule 23 (1) notice has raised
nine grounds of attack directed
against the Plaintiff's amended
declaration.
[2]
The Excipient delivered a Notice of
Exception in terms of Rule 23 (1) to wit the Plaintiffs were called
upon to remove the cause
of complaint within fifteen (15) days of
delivery of the said notice. The Plaintiffs through its attorneys of
record sent a letter
wherein it declined to remove the causes of
complaint raised by the First Defendant in its Rule 23 (1) notice.
[3]
The Plaintiffs then
set the matter down for argument.
B.
FACTUAL BACKGROUND
[4]
First, Second and Third Plaintiff (‘the
Plaintiffs”) claim monies due, owing and payable to them
arising from the following:
4.1
First Defendant (as employer) and the Plaintiffs respectively on
various dates
entered into a written contract to build, erect and/or
construct subsidized houses at Westonaria, Gauteng. (“the
Construction
Project")
4.2
During 2013, whilst in the course of building, erecting, and
constructing the
houses the Department (through the First Defendant),
instructed the Plaintiffs to cease/stop with the construction work
because
of certain departmental problems, The First Defendant further
instructed the Plaintiff to remain on site to protect the work
already
done.
4.3
The above-mentioned instruction was indeed followed by the
Plaintiffs, with
the expectation by the Plaintiffs that the
Department will have to pay the
standing time fees
as well as
Contract Price Adjustment Provision (“CPAP”)
,
resulting from the delay caused by this instruction.
[5]
After the above instruction, the Plaintiffs
resumed with the construction and completed all stages of the
Construction Project in
terms of the contract between the Plaintiffs
and the 1st Defendant. It is common cause between the parties that
the entire Construction
Project was completed on 8'" October
2014. The Second Defendant (Principal Agent) then issued all the
Plaintiffs with certificates
of final completion and drew up final
accounts. After the final payments, Plaintiffs' security fund and
retention monies were also
released.
[6]
The Plaintiffs’ expectation was that
the standing time fees and Contract Price Adjustment which resulted
from the stoppage
of work would become due and payable. Second
Defendant in conjunction with Third Defendant calculated the standing
time fees and
the Plaintiff was supposed to accept these calculations
subject to the approval of the Department.
[7]
The calculations were made by the Third
Defendant and amounted to total project adjustment on all three
contracts in an amount of
R8,033,604.59 (excluding VAT).
[8]
The Department accordingly and subsequently
approved of such calculations. During 2016, the Department made full
payment of the
said amount to the First Defendant. In the light of
the aforegoing the First Defendant was obliged to pay over the amount
for standing
time thus calculated to the three Plaintiffs,
respectively.'
[9]
The Plaintiffs aver that at all material
times and in terms of the written agreement, the First Defendant
received the said money
as Agent and/or on behalf of the Plaintiff
for distribution amongst the Plaintiffs.
[10]
The Plaintiff aver that each of the
Plaintiffs according to the said calculation and subsequent approval
by principal agent and
the Department, became entitled to payment of
the amount of R1,419,000.00 and CPA payment in an amount of
R1,258,398.74 (Excluding
VAT).
[11]
In the premises the First defendant
received payment on behalf of the Plaintiffs and is obliged to pay to
each of the Plaintiffs
R2,677,868.20 (Excluding VAT).
[12]
During October 2016, the First Defendant
did pay the Second Plaintiff an amount of R550,000.00 and during May
and September 2016.
paid to the Third Plaintiff an amount of
R585,000.00. No payment was made to the First Plaintiff at all.
[13]
The core issue between the parties i.e.,
Plaintiff and First Defendant and which must be decided, is who is
entitled to the money
paid by the Department as standing time, as
well as the Contract Price Adjustment Provision. The Plaintiffs set
out the aforegoing
background in greater detail in its amended
declaration.
C.
LEGAL PRINCIPLES GOVERNING
EXCEPTIONS
[14]
“
In deciding an exception, a court
must accept all allegations of fact made in the particulars of claim
as true; may not have regard
to any other extraneous facts or
documents; and may uphold the exception to the pleading only when the
excipient has satisfied
the court that the cause of action or
conclusion of law in the pleading cannot be supported on every
interpretation that can be
put on the facts. The purpose
of an exception is to protect litigants against claims that are bad
in law or against
an embarrassment which is so serious as to merit
the costs even of an exception. It is a useful procedural
tool to
weed out bad claims at an early stage, but an overly
technical approach must be avoided.” – Froneman J in
JP
Pretorius v Transnet Pension Fund
CCT
95/17 ZACC referring to
Telematrix (Pty)
Ltd v Advertising Standards Authority
SA
2006 (1) SA 461
SCA;
[2005] ZASCA 73
[15]
Exceptions are dealt with in terms of High
Court rule 23 (1). Rule 23 (1) reads as follows:
“
Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the case
may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto and
may set it down
for hearing …”
[16]
Pleadings and their contents are regulated
by rule 18. Rule 18 (4) provides 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 side to reply thereto.”
[17]
Further on Rule 18 (6) states that “A
party who in his 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 of
the part
relied on in the pleading shall be annexed to the pleading.”
[18]
In response to the declaration the First
Defendant has excepted to the declaration as being vague and
embarrassing, setting out
seven (7) grounds of complaint which are
subject of this hearing. The parties allege and appear to react to
nine (9) grounds in
their respective heads of arguments but I could
only identify seven (7) crisply set out grounds.
y
D.
THE GROUNDS OF EXCEPTION
The first complaint
[19]
The Plaintiffs plead the conclusion of
three (3) separate written contracts with the excipient on similar
terms. They further failed
to plead and rely upon any specific terms
and conditions contained in the Principal Building Agreement Standard
JBCC edition 5
(“the PBA”). The First Defendant is
prejudiced in having to guess which contractual provisions are
alleged by the Plaintiffs
to be relevant and applicable, inter alia
the Plaintiffs’ use of words such as “understanding"
between the parties.
and "oral agreements" are in
contravention of the non-variation clause contained in clause 42.1 of
the PBA. The declaration
alleges the First Defendant, consequently,
lacks averments necessary to sustain an action.
[20]
The introductory portion of the declaration
define each of the Defendants and their roles in the contract. The
Second Defendant,
for example, is the principal agent and has the
authority to exercise such powers as are not proscribed by the PBA.
The Third Defendant
is the Quantity Surveyor who is authorised in
terms of the PBA to exercise such powers as a Quantity Surveyor does
in relation
to calculating payments etc. that are due and to whom. At
any rate rule 18 (7) provides that “it shall not be necessary
in
any pleading to state the circumstances from which an alleged
implied term can be implied.” Plaintiffs have attached to the
declaration a copy of the written contract, the PBA, in terms of
which they have already been paid on completion of the work. Addenda
such as building plans and the schedule of works were not attached
since they were not relevant. What remains, is for the First
Defendant to pay over the amounts paid out for standing time and the
Contract Price Adjustment Provision (CPAP). This ground of
exception
appears contrived and cannot be sustained.
The second complaint
[21]
The First Defendant takes issue with
paragraph 16 of the declaration. It reads as follows:
"During the course
of 2013, the Department temporarily ceased with the construction work
as a result of
certain departmental problems
but issued an
instruction to the First Defendant, who in turn requested the
Plaintiffs to remain on site for protection of the
work already done.
This instruction was accordingly followed, and
it was common cause
amongst the Plaintiffs
that
the Department shall pay standing
times fees as well as Contract Price Adjustment Provision 'CPAP’”.
[22]
Under this heading the Defendants allege
that the Plaintiffs have not pleaded any details regarding the nature
of the “departmental
problems” which led to the work
stoppage and why the Plaintiffs would be entitled to any amounts for
“standing time”
and CPAP from First Defendant in terms of
the PBA. Further allegations are that the Plaintiffs have not pleaded
how it became “common
cause among the parties” that the
Department would pay said standing time fees and CPAP.
This
complaint
relates to issues of
substantive law of evidence. The vagueness complained of is that the
amended declaration does not contain pieces
of evidence necessary to
prove the pleaded “material facts”.
[23]
This complaint has the effect of offending
against Rule 18 (4) and the requirement to plead only "material
facts." Should
the Plaintiffs be required to plead the nature of
the "departmental problems", and "how and when it
became common
cause..." the amended declaration would be
excipiable as it would contain 'facta probantia', which would have
been offensive
to the object of Rule 18 (4), alternatively Rule
18(7), which does not make it mandatory for a pleader to state the
circumstances
from which an implied term can be inferred in a
pleading. This ground of exception cannot succeed.
The third complaint
[24]
The First Defendant takes issue with
paragraph 18 of the declaration which reads as follows:
"Despite the
aforegoing it was common cause amongst all parties that the Principal
Agent, i.e. the Second Defendant, in conjunction
with the Third
Defendant, would calculate the outstanding amounts for all standing
time claims in terms of the written was agreed
amongst the parties
that this calculation will be done by the Third Defendant and as for
the factual history of standing time,
and CPAC and that the
Plaintiffs will abide by the calculations made by the quantity
surveyor, as aforesaid, subject to the approval
of the Second
Defendant and the Department."
[25]
No allegations are made pertaining to:
23.1
When the standing time claims were submitted to the First Defendant,
the amounts of such
standing time claims, and why they are alleged to
be outstanding.
23.2
How it came to be "common cause between all the parties"
that the Second and
Third Defendants would calculate the outstanding
amounts for the standing time claims.
23.3
Which provisions in the PBA are
relied upon by the Plaintiffs in support of the allegation that the
calculation of standing time
claims would done "in terms of the
agreement". and
23.4
No particulars are provided of any
alleged agreement, be it oral or in writing, where the agreement was
concluded, who represented
each of the parties, etc.
[26]
The Plaintiffs' claim is for payment of
monies due, owing, and payable by the First Defendant to the
Plaintiffs, the amount of which
is simply ascertainable from the
pleaded facts. The Excipient seeks details relating to when, how and
why the amounts were arrived
at. Yet these were clearly pleaded in
the amended declaration. The answers to the First Defendant are laid
out in Paragraphs 22
and 23 of the declaration. The calculations were
done by the Quantity Surveyor (Third Defendant) and approved by the
Principal
Agent (Second Defendant) and the Department (Fifth and
Sixth Defendants).
[27]
It has been submitted on behalf of the
Plaintiffs that the questions of 'how', 'when', and 'what amounts”
were claimed have
been overtaken by events in that payment of the
aforesaid monies has already been made by the Department to the First
Defendant
as specifically due to all the Plaintiffs. It follows that
if payment is already made there was proper compliance with the terms
of the PBA and claims were submitted in accordance with the written
agreement for the Department to have effected payment. This
ground of
exception has no merit.
The fourth complaint
[28]
The First Defendant takes issue with
paragraph 19 of the declaration which reads as follows:
“
ln
terms of the JBCC Agreement a calculation was accordingly made by the
Third Defendant and amounted to a total project adjustment
on all
three contracts pertaining to the Plaintiff in an amount of
R8,033,604.59 (excl. VAT)."
[29]
The First Defendant queries the Plaintiffs
on the method and particulars used in arriving at the amount of
R8,033,604.59 which (has
already been paid to it) The Plaintiffs
submitted that this ground of complaint is irrelevant to the
Plaintiffs' pleaded case.
It is the Plaintiffs' assertion that
calculations were done by the Third Defendant, the Plaintiffs as
contractors cannot comment
and/or advance any case on the method used
by the Third Defendant but can only abide by such calculations done
by the Quantity
Surveyor, the Third Defendant has exclusive knowledge
on the ‘method’ and 'particulars of the calculations'.
Thus,
this ground of attack is bad in law when regard is had to the
pleaded case.
The fifth complaint
[30]
The First Defendant takes issue with
paragraph 20 of the declaration which reads as follows:
"ln terms of the
JBCC Agreement a calculation was accordingly made by the Third
Defendant and amounted to a total project adjustment
on all three
contracts pertaining to the Plaintiffs in an amount of R8,033,604.59
(Excl. VAT)."
[31]
The First Defendant then alleges that no
allegations are pleaded as to in terms of which "agreement"
the Department is
alleged to have made payment to the First
Defendant, and, on what factual or legal basis, specifically, the
First Defendant was
obliged to have made payment to the First
Defendant and on what “factual” or “legal”
basis, specifically,
the First Defendant was obliged to pay the funds
received to the 3 plaintiffs. Any reference to an 'agreement'
in the amended
declaration refers to the annexed PBA agreement and
should there have been any other tacit and/or oral agreement
extraneous to
the main contract the pleader would have specifically
referred to its particulars and/or terms thereof, including annexing
it to
the declaration where applicable. The complaint is inconsistent
with the pleaded facts and is bad in law.
The sixth complaint
[32]
The First Defendant challenges paragraph 21
of the declaration which reads as follows:
"The Plaintiffs aver
that at all material times and in terms of the written agreements the
First Defendant received the said
money as agent and for on behalf of
the Plaintiffs for distribution amongst the Plaintiffs."
[33]
The First Defendant Attacks Plaintiffs
averment that at all material times and in terms of the PBA the First
Defendant received
monies as agent and on behalf of the Plaintiffs
and for distribution amongst the Plaintiffs. The Plaintiffs, he
contends have failed
to plead any contract of agency. Plaintiffs
submits that it has always been the actual practice throughout this
contractual relationship
that all monies payable to Plaintiffs by the
Department, were not paid directly into Plaintiffs' accounts, instead
such payments
were made via the account of the First Defendant, who
in turn paid same to the Plaintiffs. It is thus disingenuous of the
First
Defendant to claim ignorance of such “relationship of
agency”.
The seventh complaint
[34]
The First Defendant takes issue with
paragraph 22 of the declaration which reads as follows:
"The Plaintiffs aver
that each of the Plaintiffs, according to the said calculation and
subsequent approval by the Principal
Agent and the Department became
entitled to payment of an amount of R1 419 000 00 for standing time
and CPAP payment in an amount
of R1,258,398.74 (excl. VAT)."
[35]
First Defendant alleges that no calculation
in respect of standing time or CPAP has been pleaded. Further no
particulars, facts
or legal conclusions were pleaded to substantiate
the allegation that each of the Plaintiffs would be entitled to 1/3
(a third)
of the total amount (R8,033,604.59) paid. It was submitted
on behalf of the First Defendant that this ground is no different to
those already dealt with above. And that the Plaintiffs' amended
declaration contains material facts with sufficient particularity
to
enable the excipient to know what case it has to meet. Accordingly,
this ground of complaint ought to fail as it lacks merit.
[36]
With these seven clearly tabulated
complains, the First Defendant submits that the issues complained of
singularly and collectively
renders the whole amended declaration is
vague and embarrassing.
E.
CONCLUSION
[37]
I have carefully considered the amended
declaration and its contents as well as the PBA annexed thereto as a
whole. (
Nel & others NNO v McArthur
2003 (4) SA 142
(T) at 149F. I also considered the detailed grounds
of exception raised in this matter painstakingly.
[38]
Counsel for both sides presented thorough
heads of argument and argued at length. The reality is that “…the
excipient
has the duty to persuade the court that the pleading is
excipiable on every interpretation that can reasonably be attached to
it.”
(
Amalgamated Footwear &
Leather Industries v Jordan & Co Ltd
1948
(2) SA 891
(C) at 893;
H v Fetal
assessment Centre
2015 (2) SA 193
(CC)
at 199B.
[39]
I am not in any way persuaded that the
declaration does not disclose a cause of action or that it is vague
and embarrassing.
F.
ORDER
The
defendant’s exception is dismissed with costs.
J.S. NYATHI
Acting Judge of the High
Court
Gauteng Division,
Pretoria
Date
of Judgment: 11 May 2021
On behalf of the 1
st
Defendant/Excipient: Adv CA Boonzaaier
Instructed by: Venter &
Von Abo Inc
Van Erkom Building
c/o Macintosh Cross &
Farquharson
834 Pretorius street
Arcadia, Pretoria
Tel: (012) 342 4855
Fax: (012) 342 5113
Email:
cn@macintoshcross.co.za
Ref:
C Erasmus/cn/B78/2019
On behalf of the
Plaintiffs: Adv PJJ de Jager SC with Adv Ngoepe
Instructed by: Nkondo
Attorneys Inc
Email:
admin@letselankondoinc.co.za
c/o MABASA SK Attorneys
23 Bureau Lane Street
Pretoria Central
Office 112
Centenary Building
Tel: (012) 021 5545
Fax: (086) 459 1524