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[2021] ZAGPPHC 311
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Metal Tank Industries (Pty) Ltd v Introweld CC (40409/2020) [2021] ZAGPPHC 311 (17 May 2021)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
CASE
NO: 40409/2020
In
the matter between:
METAL
TANK INDUSTRIES (PTY) LTD
Excipient
and
INTROWELD
CC
Respondent
In
re:
INTROWELD
CC
Plaintiff
and
METAL
TANK INDUSTRIES (PTY) LTD
Respondent
Delivered.
This
judgment was handed down electronically by circulation to the
parties’ representatives by email. The date and time for
hand
down is deemed to be 10h00 on
17
May 2021.
JUDGMENT
SKOSANA
AJ
[1]
In this matter, the defendant took an exception against the
plaintiff’s particulars
of claim on the basis that such
particulars of claim do not disclose a cause of action or
alternatively are vague and embarrassing.
[2]
The plaintiff’s particulars of claim relate to a claim by the
plaintiff against
the defendant based on a contract of sale for
payment of goods sold and delivered as well as services rendered. The
relevant paragraphs
of such particulars of claim state:
“
4.1
During or about September 2016, the Defendant as represented by ...,
requested to purchase welding
related goods and/or services from the
Plaintiff, from time to time;
4.2
The Plaintiff, as represented by …, accepted the Defendant’s
request to supply
the Defendant with welding related goods and/or
services, from time to time;
4.3
The Defendant subsequently submitted a ‘Debtors Master Capture
Form’ to the
Plaintiff on or about 25 September 2016, which
contained the information of the Defendant. The ‘Debtors Master
Capture Form’
is attached and marked hereto as annexure “W2”
and the Honourable Court is requested to read it herewith as if
specifically
incorporated.
4.4
The agreement was entered into in Johannesburg and was partly verbal,
partly in writing;
the written part being
Annexure W2
annexed
hereto.
5.
Although
Annexure “W2” contains no terms and conditions related to
the supply of the welding goods and/or services,
it was verbally
agreed between the parties that payment of all invoices issued by the
Plaintiff to the Defendant for goods sold
and delivered and/or
services rendered, would become due and payable by the Defendant
within 30 days from the last day of the month
in which such goods
and/or service were rendered by the Plaintiff to the Defendant;
6.
6.1
In accordance with agreement as referred to above, the Plaintiff sold
and delivered goods
and/or rendered services to and/or on behalf of
the Defendant between September 2016 and July 2019.
6.2
The Defendant initially made regular payments in accordance with the
agreement between the
parties. The Defendant has however failed
and/or neglected to make any payment due to the Plaintiff since April
2019 and at present
the Defendant is still indebted to the Plaintiff,
the outstanding amount of
R 1,000,263.16 (One Million Two Hundred
and Sixty Three Rand and Sixteen Cents);
6.3
The Plaintiff’s statement of account which indicates the
different unpaid sale order
from the 1
st
of August 2018 up
to the 23
rd
of July 2019 with the relevant dates of the
sales Orders the reference numbers and the amounts due in terms of
the Sales Order
is annexed hereto as
Annexure W3
and the
Honourable Court is requested to read it herewith as if specifically
pleaded.
6.4
Plaintiff had fully complied and performed in terms of the agreement
with the Defendant.
[3]
The defendant who is also the excipient, based his exception on the
complaint that
the subject-matter of the alleged sale (
merx
)
has not been properly described in the particulars of claim, nor are
the terms of the agreement properly set out or the price
of the goods
alleged in a fixed or determinable amount. The dates of sale or
service or collection are also not specified.
[4]
The plaintiff on the other hand contends that the contractual terms
which were verbal
are those that were accepted verbally in terms of
paragraph 4.2 of the particulars of claim. The plaintiff’s
counsel further
argued that the goods have been sufficiently
identified as welding goods in the particulars of claim read with
annexure “W3”
thereto.
[5]
In my view, the particulars of claim fall short of the appropriate
standard for such
pleading and cause of action. The goods are simply
referred to as welding related goods. The Debtor Master Capture Form
simply
describes the nature of business of the plaintiff as supplier
of stainless steel and steel vessels. The statement annexed as “W3”
contains a list with the headings such as “date”,
“reference”, “description”, “debit”,
“credit” and “balance”. Under date there are
dates from 27 August 2018 up to 01 August 2019 alongside invoice
numbers as well as amounts for each of those goods and the increasing
balance for every debit. There is no description of any of
the goods
sold. Under description the words ‘sales order’ appear
for all items. There is also an amount due reflected
at the end of
each page, being R1 000 263-16.
[6]
There is no description of the goods therefore reflected on the
particulars of claim
read together with the annexures thereto.
Possibly, some light could have been shared by cross reference to the
invoices whose
numbers appear on the statement (annexure “W3”).
However, that would require the defendant to secure copies of such
invoices keeping in mind that a request for further particulars can
only be made after the close of pleadings in terms of Rule
21. That
in my view, already demonstrates that the defendant will not be able
to plead to the particulars of claim as they stand.
[7]
I also agree with the defendant that it is not clear as to which
portion of the agreement
was in writing and what the terms of such
agreement were, which fall under the written portion thereof. If the
terms and conditions
were verbally agreed as alleged in paragraph 5
of the particulars of claim then the written portion of the
agreement, if any, had
no role or such role is not pleaded. This too
renders the particulars of claim vague and embarrassing.
[8]
Further, there is no allegation as to when exactly the goods were
delivered to the
defendant. The dates on the statement do not specify
if they are dates of purchase or delivery. In addition to the fact
that the
goods are not individually described nor are the invoices
attached, the alleged dates of sale and/or delivery cover a period of
over 3 years and for about 206 undescribed and unidentified items. In
other words, the defendant cannot determine from the particulars
of
claim as to what was sold to it on the alleged dates and what was and
was not received.
[9]
Another defect is that the allegations in paragraphs 6.2 and 6.3 read
with annexure
“W3” thereto are contradictory and further
contradict the rest of the pleading. Paragraph 6.2 alleges that the
defendant
failed to make any payments due to the plaintiff since
April 2019 totalling the claimed amount of R1 000 263-16. Paragraph
6.3
alleges that the statement reflects unpaid amounts from 01 August
2018 to 23 July 2019 to the total of R1 000 263-16. This also
render
the particulars of claim vague and embarrassing.
[10]
Furthermore, the particulars of claim refer to services rendered but
such services are not described
anywhere. This aspect was not dealt
with at all by plaintiff’s counsel in argument. It
unquestionably adds to the vague and
embarrassing state of the
pleading.
[11]
In the circumstances, the exception is well taken.
[12]
I therefore make an order in terms of the draft order which I have
marked “XYZ”.
DT
SKOSANA (AJ)
Acting
Judge of the High Court
Pretoria
Date
of hearing: 10 May 2021
Date
of judgment: 17 May 2021
Appearance:
For
Excipient/Defendant:
Adv R Raubenheimer
Instructed by
Tobias Bron Inc.
The Hillside
Building
1
st
Floor, Office 101
318 The
Hillside Street
Lynwood,
Pretoria
For
Respondent/Plaintiff:
Adv PJ Coetsee
Instructed by
Stegmanns Incorporated
379 Lynnwood
Road
Menlo Park,
Pretoria