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[2021] ZAGPPHC 381
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Standard Bank of South Africa Ltd v Jawiklane (Pty) Ltd and Others (31868/2019) [2021] ZAGPPHC 381 (17 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
no:
31868/2019
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
NOT
REVISED
In
the matter between:
STANDARD
BANK OF SOUTH
AFRICA
Plaintiff
and
JAWIKLANE
(PTY) LTD
First
Defendant
DANKIE
BELEGGINGS (PTY) LTD
Second
Defendant
GABRIEL
JOHANNES PRETORIUS
Third
Defendant
NICOLAAS
JACOBUS PRETORIUS
Fourth
Defendant
ADRIANA
CATHARINA LAMPRECHT
Fifth
Defendant
CORNELIA
MARIA SCHUTTE
Sixth
Defendant
NICOLAAS
JACOBUS PRETORIUS N.O
Seventh
Defendant
MARTHA
PRETORIUS N.O
Eight
Defendant
JACOBUS
JOHANNES LE ROUX N.O
Ninth
Defendant
GABRIEL
JOHANNES PRETORIUS N.O
Tenth
Defendant
IRENE
ELSA PRETORIUS N.O
Eleventh
Defendant
JACOB
JOHANNES LE ROUX N.O
Twelfth
Defendant
JUDGMENT
GOODMAN,
AJ:
[1]
This is an
interlocutory application brought by the Plaintiff in the main
proceedings, seeking further particularity from the Defendants
in
respect of their counterclaim.
[2]
In the main
action:
[2.1]
The Plaintiff
sues the First Defendant for (
a
)
an amount of R4 907 491.92, plus interest, allegedly owing
under an overdraft agreement concluded during November 2016,
and (
b
)
an amount of R1 496 000.00, plus interest, allegedly owing
under a medium-term loan agreement concluded in April 2014.
The
Plaintiff pursues claims against the remaining Defendants as alleged
sureties for those debts. The Defendants all dispute their
liability
to pay the Plaintiff the amounts claimed.
[2.2]
The Defendants
have brought a counterclaim for an amount of R9 509 975.00,
which they claim are the damages that they
have suffered as a result
of the Plaintiff’s alleged failure properly and timeously to
consider an application by the First
Defendant to be granted a
production facility by the Plaintiff. The Plaintiff has defended the
counterclaim.
[3]
During August
2020, the Plaintiff filed a lengthy request for particulars, in terms
of Rule 21, in respect of both the Defendants’
plea and their
counterclaim.
[4]
The Defendants
replied to that request in September 2020. Their response made a
handful of admissions but, for the most part, the
requests for
particularity were declined on the basis that the issues raised were
matters for evidence.
[5]
The Plaintiff
then brought an application to compel the provision of further and
better particulars, in terms of Rule 21(4). It
sought to compel
answers only in respect of seven paragraphs of its original request –
namely, paragraphs 17 to 21, 23 and
24 (and each subparagraph
thereof). Those enquiries all related to the Defendants’
counterclaim.
[6]
The Defendants
oppose the relief sought. Although they have provided some
explanation of their case in the answering affidavit in
the
application to compel, their primary position is that their case is
adequately pleaded to enable the Plaintiff to prepare for
trial. They
say that the Plaintiff improperly seeks further particular only to
force concessions out of them or unfairly to narrow
the ambit of the
case they can run at trial.
THE
ROLE OF FURTHER PARTICULARS
[7]
Rule
21 affords parties to action proceedings a mechanism to procure
particularity in order to prepare for trial. Such particularity
is
intended to “
fill
in the picture”
of the cause of action pursued,
[1]
and thus to prevent surprise at trial.
[2]
But a requester is entitled only to those particulars that are
“
strictly
necessary”
to enable it to prepare for trial.
[3]
A request cannot be used to tie the claimant down to a narrower case
than has been pleaded, or unfairly to limit the case to be
run at
trial.
[4]
[8]
In considering
an application to compel brought in terms of Rule 21(4), then, the
Court must consider which side of the line a request
for
particularity falls. If the particularity sought is required for the
requester properly to prepare for trial, then its production
must be
ordered; if it is not, then the particulars requested can
legitimately be withheld.
[9]
A
question that arose in this matter, is whether a party can invoke the
Rule 21 process to seek admissions. The Defendants’
counsel, Mr
Wannenburg, argued that admissions can only be called for in terms of
Rule 37(4), and could not competently be required
under Rule 21. I do
not agree. There is no reason, in principle, why a request for
particularity cannot be framed as a request
for an admission. If the
admission is necessary for the requester to prepare for trial, it
will have to be answered; if not, the
counterparty can decline to
make the admission sought. That is particularly so because the
processes envisaged by Rule 21
and Rule 37(4) are different. As was
explained in
Kriel
v Bowels
:
[5]
“
It
is so that rule 37 is intended primarily to curtail the duration of a
trial, narrow down issues, cut costs and facilitate settlements.
Parties are required to attempt, in a bona fide manner, to reach
settlement either on issues which could serve to shorten the
proceedings or resolve the main issues.
A party can however
not be compelled to agree to anything during the course of rule 37
proceedings. This much is evident from the
fact that rule 37(8)(c)
provides that, even in a case where a conference had been convened
before a judge in chambers, the judge
may give directions which might
promote the effective conclusion of the matter, but only with the
consent of the parties. . . .
I am in agreement with Mr Nepgen's
submission that these enquiries should have been contained in a
request for particulars for
trial in terms of rule 21. It is
abundantly clear from rule 37(4) that a formal request in the form
served and filed by the Plaintiff
in this matter is not contemplated.
What is contemplated is a list to be provided to the other party not
later than 10 days before
the pre-trial conference, inter alia, of
enquiries which he will direct and which are not included in the
request for particulars
for trial and other matters regarding
preparation for trial which he will raise for discussion. The list of
enquiries is therefore
intended to relate to matters which will be
discussed at the pre-trial conference. The remedy therefore available
to any party
who is frustrated by a lack of co-operation or bona
fides on the part of his opponent, is to request that a conference be
held
before a judge in chambers. The rule clearly does not envisage a
formal request to which there must be a formal reply.”
[10]
Put
differently, Rule 37(4) provides an informal process for narrowing
down the issues for trial shortly before the hearing is due
to
commence. It does not permit a party to compel the admissions sought
or otherwise to force its counterparty to participate in
curtailing
the issues for trial.
[6]
It
follows that if a party believes a particular admission is necessary
for it to prepare for trial, it must invoke the Rule 21
process to
procure such admission. Rule 37(4) does not afford it equivalent
relief.
[11]
I am therefore
satisfied that admissions can permissibly be sought in these
proceedings – although the Plaintiff must still
show that they
are needed to prepare for trial.
[12]
Against that
background, I turn to assess the requests made. For convenience, I
deal with them thematically.
REQUESTS
RELATING TO THE LEGAL DUTY
[13]
The
Defendants’ counterclaim is a delictual claim for pure economic
loss. It is well established that to succeed in such a
claim, the
claimant must plead and prove that the counterparty was under legal
duty that it breached, thereby causing the claimant
foreseeable
loss.
[7]
[14]
A number of
the Plaintiff’s requests for particularity were, by its
account, necessary for it to ascertain the basis on which
the
Defendants alleged it, the Plaintiff, owed them a legal duty, and
what the contours of that duty was. Thus, the Plaintiff enquired:
-
whether it was
the Defendants’ case that the Plaintiff acted wrongfully in
breach of an alleged legal duty by declining the
application for
production facilities on 20 August 2017 and, if so, why their
conducted it alleged to have been wrongful (para
17.1 of the
request);
-
whether it is
the Defendants’ case that the Plaintiff was in breach of any
agreement by declining the application for production
facilities on
20 August 2017 and, if so, the terms of such agreement(s) (para
17.2);
-
whether is it
the Defendants’ case that the Plaintiff was legally obliged to
grant the First Defendant’s application
for production
facilities instead of rejecting it and, if so, the particulars of
such legal obligation (para 18.1);
-
whether the
alleged conditional counterclaim of the second to twelfth Defendants,
and the relief sought by them in prayer B of the
counterclaim, is
based on an alleged breach by the Plaintiff of an alleged legal duty
owed to the second to twelfth Defendants,
seemingly arising from the
Plaintiff’s alleged delay in approving, and an alleged delay in
paying out, the production loan
to the First Defendant (para 24.1).
[15]
The
Plaintiff’s counsel, Mr Coertzen, argued that without such
particularity, the Plaintiff was unable to understand and assess
the
elements of wrongfulness and causation in the Defendants’
claim. He submitted, moreover, that the crucial question at
trial
would be whether the Plaintiff was under an obligation to grant the
production facility since, if it wasn’t, the claim
would fail.
[16]
For their
part, the Defendants contended that the duty, and its relationship to
the Defendants’ alleged loss, had been adequately
and
unequivocally pleaded. The duty they relied upon was alleged, in
paragraph 10, to be “
a
duty to the Defendants, when considering the First Defendant’s
application for production facilities for the upcoming crop
season of
the First Defendant, to not act wrongfully and negligently, to act in
a bona fide manner, to not act capriciously and
to act timeously, in
either approving or disapproving the First Defendant’s and/or
Second Defendant’s application for
such facilities”
.
The existence of that duty had to be assessed, according to Mr
Wannenburg, on the facts set out in paragraph 9 of the counterclaim
which alleged, in essence, that the Plaintiff had special knowledge
of the circumstances of, and inter-relationships, between the
Defendants by virtue of its past relationship with them. Causation
was pleaded in paragraph 19, which alleged that as a result
of the
Plaintiff’s breach of its legal duty, the First Defendant
earned a reduced income because it could not plant a maize
crop and
instead had to plant a sunflower crop.
[17]
I am satisfied
that the duty, and its relationship to the alleged loss, are
adequately pleaded for the Plaintiff to prepare for
trial. Properly
construed, the Plainitff’s questions are directed not at
ascertaining the factual basis on which the duty
is said to be based,
but rather at interrogating whether the duty pleaded can sustain the
Defendants’ cause of action. Indeed,
that is demonstrated by Mr
Coertzen’s argument that the answers to the questions posed
would, in the Plaintiff’s view,
be dispositive of the
counterclaim. But whether the pleaded duty can found or sustain a
claim is not an issue that the Court can
determine at the
particularity stage, nor is it an issue in respect of which the
Defendants are required to provide particularity.
It is matter to be
determined either at exception or at trial in due course.
[18]
Relatedly, in
paragraph 21, the Plaintiff requests particularity regarding “
when,
according to the Defendants, was the Plaintiff legally obliged to
approve the production loan facility and in terms of what
was the
Plaintiff so obliged”
.
That enquiry is made in response to the averments, in paragraphs 15
and 16 of the counterclaim, that the Plaintiff granted a production
loan facility and made payment in terms of it during December 2017
and, in paragraph 17, that “
the
approval by the Plaintiff of the First Defendant’s production
loan facility and/or payment in terms thereof when each
of these
events occurred was, to the knowledge of the Plaintiff, too late for
the First Defendant to timeously and in the proper
manner plant any
of the seasonal crops which the First Defendant intended planting
viz. soya bean and maize crops”
.
[19]
The
request is misplaced because the Defendants do not allege that the
Plaintiff was “
legally
obliged to approve”
the loan facility. Rather, their case is that the Plaintiff was
obliged properly to consider and timeously to approve or disapprove
the loan application. The Defendants are not required to answer
questions relating to evidence that they do not intend to present.
[8]
[20]
Similarly, in
paragraph 20 of the request, the Plaintiff enquires “
when,
according to the Defendants, the Plaintiff was obliged to make the
first payment in terms of the production loan agreement
”.
The enquiry is made in response to paragraph 16 of the counterclaim,
which avers that “
the
first payment to the Plaintiff to the First Defendant in terms of the
production loan facility occurred on 22 December 2017”
,
and paragraph 17 which pleads that “
the
approval . . . of the First Defendant’s production loan
facility and/or the payment in terms thereof when each of these
events occurred was, to the knowledge of the Plaintiff, too late for
the First Defendant to timeously and in a proper manner plant
any of
the seasonal crops that the First Defendant intended to plant”
.
The material issue, for the Defendants’ purpose, is not when
payment was due, but rather the delay in processing the loan
application to finality and thus procuring timeous payment under it.
Again, the Plaintiff seeks particulars from the Defendants
that do
not properly arise from their pleaded case.
[21]
I accordingly
decline to compel a response to paragraphs 17.1, 17.2, 18.1, 20, 21
and 24.1 of the request.
REQUESTS
FOR LEGAL CONCLUSIONS
[22]
As it clear
from the section dealing with the role of particulars, a request can
be made to adduce facts to clarify the cause of
action pursued. A
request should not call on a party to make legal concessions or to
admit legal conclusions.Those are issues for
for the Court to
determine at trial.
[23]
In my view,
certain of the Plaintiff’s requests impermissibly seek to
compel the Defendants to make concessions or to admit
legal
conclusions. They are as follows.
[24]
First
,
the Plaintiff advanced a request for particularity based on what it
claimed was an apparent contradiction in the pleadings.
Thus,
in paragraph 17.3 of the request, it enquired whether it was
the Defendants’ case that “
the
First Defendant could in fact provide the sufficient security to the
Plaintiff to grant the production loan facility”
.
Mr Coertzen submitted that the query was made because of the apparent
contradiction between paragraph 9.6 of the counterclaim
– which
alleged that the First Defendant “
had
insufficient assets to provide security . . . for credit facilities”
–
and paragraph 13 – which alleged that the Plaintiff acted
wrongfully in concluding that the First Defendant “
had
not and/or could not provide sufficient security . . .to grant the
production loan facility”
.
[25]
I agree with
the Defendants’ submission that the Plaintiff’s complaint
is based on a selective reading of the counterclaim.
Paragraph 9.6
indeed pleads that the First Defendant lacked the assets to provide
the Plaintiff with security – but it goes
on to allege that
“
the
Second Defendant had assets to provide security to the Plaintiff for
credit facilities which the Plaintiff would grant to the
First and
Second Defendants with a view to ensure that the First Defendant
would be able to conduct the First Defendant’s
farming
activities, [and] thereby generate an income and be able to repay
credit facilities granted by the Plaintiff to the First
and Second
Defendants”
.
Moreover, paragraph 9.7 avers that “
All
of the Defendants besides the First Defendant . . . bound themselves
or their property in one way or another to the Plaintiff
solely with
a view to provide security to the Plaintiff for the provision by the
Plaintiff of credit facilities to the First Defendant”
.
And paragraph 9.12 alleges that “
The
Plaintiff would, on an annual basis and with a view to the upcoming
crop season review the First and/or Second Defendants’
credit
facilities . . . in light of the security provided by all of the
Defendants to the Plaintiff”
.
[26]
The
Defendants’ case on how the anticipated production facility
would be secured is, in my view, adequately pleaded: it is
alleged
that the First Defendant lacked assets but that it looked to the
remaining Defendants to provide security for such facilities
as the
Plaintiff made available to it. The Defendants, in turn, anticipated
relying on the First Defendant’s future income
stream to repay
any debt. The question of whether that provided “
sufficient
security
”
to warrant the grant of a production facility by the Plaintiff is a
question to be determined at trial.
[27]
Second
,
the Defendants plead, in paragraphs 15 to 17 of the counterclaim,
that the Plaintiff ultimately granted the First Defendant a
production facility, albeit too late for the First Defendant to plant
its crops as it had planned. In its plea to the counterclaim,
the
Plaintiff avers that it issued a facility letter on 15 December 2017
(annexure J to the plea) that set out the terms on which
the
Plaintiff was prepared to grant an agricultural production loan to
the First Defendant, and that the Plaintiff and the First
Defendant
concluded a production loan agreement (annexure K to the plea) on 19
December 2019.
[28]
In the
request, the Plaintiff has sought particularity to ascertain whether
the production facility that the Defendants aver was
ultimately
granted, is governed by the terms of annexures J and K. Thus, the
Plaintiff enquired whether it is admitted that:
-
the
“
production
loan facility
”
referred to in paragraph 15 of the counterclaim was granted in terms
of the written production loan agreement attached to
the plea to the
counterclaim as annexure K (para 19.1 of the request);
-
the First
Defendant accepted the terms and conditions of the facility letter
(annexure J) on 19 December 2017 and at Vereeniging
(para 19.3.1);
-
the Plaintiff
and the First Defendant, each duly represented, entered into the
production loan agreement (annexure K) on the terms
set out therein,
read with the terms of the facility letter (para 19.3.2).
[29]
Those
requests seem to me to be properly made. They are designed to
elucidate whether the basis on which the production facility
was
granted is common cause or in dispute. That is an issue of some
importance because, as Mr Coertzen pointed out, the terms of
the
contract ultimately concluded between the parties may have a bearing
on whether the Plaintiff’s conduct prior to its
conclusion was
wrongful.
[9]
I accordingly
intend to order that those requests be responded to.
[30]
But the
Plaintiff then went on to seek a series of admissions regarding:
-
whether the
Plaintiff advised the First Defendant of the basis on which it was
prepared to grant the loan facility (and thus regarding
the
Defendants’ state of knowledge arising from the facility
letter) (para 19.2.1 of the request);
-
the
pre-conditions to the grant and payment of the production facility,
and whether or not these were met (paras 19.2.2 and 19.3.3);
and
-
the terms that
the Defendants bound themselves to, in terms of the production loan
agreement (para 19.3.4).
[31]
Through those
requests, the Plaintiff calls on the Defendants to admit elements of
its defence. The Plaintiff bears the onus to
prove those elements at
trial. It cannot, through the particularity process, require the
Defendant to admit them and thereby to
relieve itself of its
obligation to prove those issues at trial.
[32]
Third
,
the Plaintiff enquires, in paragraph 24.2 of the request, whether the
Defendants admit that the terms of the agreements of suretyship
include that the liability of the second to twelfth Defendants would
not be affected by any loan or other facilities granted to
First
Defendant, or by any renewal, change or withdrawal of the First
Defendant’s facilities, or by any compromise or arrangement
with the First Defendant, or by any indulgence or favour given to the
First Defendant, or by any delay or omission in the enforcement
of
the Plaintiff’s rights. But that is to call on the Defendants
to admit the consequences of certain alleged terms of the
suretyship
agreement, when the Defendants have disputed their liability under
the suretyship agreements
in
toto
. That
is a matter for trial. I cannot force the Defendants to take the
terms and consequences of the suretyships out of dispute,
by
compelling them to make the admissions sought.
[33]
I accordingly
decline to compel a response to paragraphs 17.3, 19.2.1, 19.2.2,
19.3.3, 19.3.4, and 24.2 of the request.
REQUESTS
PROPERLY MADE
[34]
That said,
there are certain requests for particularity that are, to my mind,
properly made and ought to be answered.
[35]
First
,
it is alleged in paragraph 13 of the counterclaim that “
the
Plaintiff capriciously, wrongfully and intentionally alternatively
negligently, misinterpreted the information and concluded
that the
First Defendant had not and/or could not provide sufficient security
for the Plaintiff to grant the production facility
in accordance with
the Plaintiff’s normal and standard terms and conditions and
considerations”
.
The Plaintiff has requested full particulars of those alleged “
normal
and standard terms and conditions and considerations”
,
in paragraph 17.4 of the request.
[36]
The
Defendants’ response in their answering affidavit was that they
need not provide such particularity because the terms,
conditions and
considerations at issue are those of the Plaintiff and thus fall
within its knowledge. But I do not think that an
adequate answer. The
Plaintiff is entitled to know the respects in which the Defendants
allege it fell short of its adhering to
its normal terms, conditions
and considerations. That is the case it is called to meet, and it
needs to know those permutations
in order properly to prepare.
[37]
In argument,
Mr Wannenburg submitted that non-adherence to the Plaintiff’s
normal terms, conditions and considerations was
not an element of the
Defendants’ counterclaim and that that phrase was intended
merely to qualify the terms on which the
loan facility ought to have
been granted. That is not clear from the pleading of the counterclaim
and it is not the position in
the answering affidavit. If that is
indeed the Defendants’ case, the Plaintiff is entitled to know
as much. Either way, I
consider that further particularity is
warranted.
[38]
Second
,
in paragraph 14 of the counterclaim, the Defendants pleaded that they
“
made
representations to the Plaintiff
to
reconsider the application for production facilities based on the
correct information”
.
The Plaintiff enquired, in paragraph 18.2, whether further
information and documentation was provided by the Defendants to
enable
such reconsideration and if so, what it was. The Defendant’s
answer, in its answering affidavit in the application to compel,
was
that it is implicit in a “
reconsideration
”
that the same application would be considered again. But that is not
axiomatically so. Decision-makers can and do reconsider
applications
that have been supplemented, and the Plaintiff is entitled to know
whether that is what is alleged to have happened
here. I consider the
particulars requested to be appropriately sought.
[39]
Third
,
in paragraph 14 of the counterclaim, the Defendants allege that the
First Defendant did not accept that its loan application was
properly
rejected and that it therefore:
“
made
representations to the Plaintiff to reconsider the application for
production facilities based on correct information. These
representations consisted of, inter alia, meetings between Messrs
Pretorius and Oelofse, representing the First Defendant, and
Messrs
Ndlovu and Simono and Ms Paul and Ms Selepe over the period August to
November 2017, during which period it was represented
to the First
Defendant that the requested production loan facility would be
granted to the First Defendant”
.
In
the face of these allegations, the Plaintiff enquired, in paragraph
18.3 of the request, who represented to the First Defendant
that the
requested production loan would be granted, and called for
particularity of such representations.
[40]
The response
in the answering affidavit was that paragraph 14 of the counterclaim
pleaded who had represented the First Defendant.
That misunderstood
the question: the Plaintiff had not asked who had represented the
First Defendant in the alleged engagements,
but who had represented
to it
that it would be granted the loan facility.
[41]
In argument,
Mr Wannenburg’s response was two-fold. He submitted, first,
that paragraph 14 of the counterclaim alleged who
had acted for the
First Defendant and the Plaintiff, respectively, in their
representations between August and November 2017.
Second, he
submitted that paragraph 15 of the counterclaim pleaded who had
informed the First Defendant of the grant of the production
loan.
[42]
I do not
regard either response as adequate:
[42.1]
Paragraph 14
of the counterclaim pleads the persons who represented each of the
parties in their “
representations”
between August and November 2017. I accept that the people who
participated in those engagements are properly identified.
But the
Defendants go further and aver that it was positively represented to
the First Defendant, during those engagements, that
the production
loan would be granted. The sting in that allegation, in the context
of the claim as a whole, is that the Plaintiff
knew that the
production loan was eligible to be granted sometime between August
and November 2017, but delayed in communicating
that fact to the
Defendants, to their detriment. If the Defendants intend to rely on
such a positive representation, the Plaintiff
is entitled to know who
it was made by and when.
[42.2]
Nor is that
question answered by the allegations in paragraph 15 of the
counterclaim. That paragraph avers that the grant of the
production
loan facility was telephonically communicated to the First Defendant
on 11 December 2017. But the positive representation
referred to in
paragraph 14 of the counterclaim is alleged to have occurred
prior
to that date, in the period August to November 2017.
[43]
I accordingly
find that the Plaintiff is entitled to the particularity sought in
paragraph 18.3 of the request.
[44]
Finally, in
paragraph 19 of the counterclaim, the Defendants plead their alleged
loss. They aver that:
“
the
First Defendant suffered damages in the amount calculated of
R9 509 975.00 calculated as follows:
19.1
But for the Plaintiff’s aforementioned breach of the
Plaintiff’s legal duty, the First Defendant
would have
generated an income of R21 842 477.00 based on timeous
planting of a maize crop.
19.2
Due to the late planting of the First Defendant’s maize crop
and the necessity because of the lateness
to rather plant a sunflower
crop on those portions of the First Defendant’s farms which
could not timeously be planted with
a maize crop, the First Defendant
achieved a total income of only R12 322 502.00 consisting
of R1 787 625.00
in respect of the sunflower crop and
R10 544 877.00 in respect of the maize crop at a reduced
yield compared to the yield
that would have been achieved if timeous
planting had been achieved.”
[45]
In response,
the Plaintiff requested “
a
full and detailed breakdown of the alleged damages”
,
including the calculation of the amount and period in respect of
which the alleged incomes would have been and were generated
(para 23
of the request).
[46]
The
Defendants’ response, in their answering affidavit and in
argument, was that adequate information had been pleaded in
the
counterclaim. Further information would be forthcoming, according to
Mr Wannenburg, from an expert in due course.
[47]
That
does not suffice. Rule 18(10) of the Uniform Rules requires a
claimant to plead its damages “
in
such a manner as will enable the defendant reasonably to assess the
quantum thereof”
.
That entitles the Plaintiff to sufficient information to make its
own
assessment of the damages sustained by the Defendants (if any).
[10]
It is not required merely to sit passively by and to check whether
the Defendants make out their claim when their evidence is led.
[11]
[48]
The
Defendants’ pleading of their damages does not permit the
Plaintiff to undertake their own assessment of the damages claimed.
Among others, the counterclaim does not allege what period the
“
income
”
relates to, whether the “
income”
referred to comprises revenue or profit, and what costs – if
any – have been taken into account. The Plaintiff is
consequently unable itself to assess the reasonableness of the
Defendants’ quantification of their claim.
[49]
Nor
is it an answer for the Defendants merely to promise expert evidence
in due course.
A
party is not entitled to refuse a request for particularity because
it does not know the answer, if it can ascertain the answer
from a
witness it intends to call.
[12]
Simply put, if the Defendants wish to procure expert input to
quantify their claim, they must do so now and use his or her inputs
to provide the Plaintiff with the particularity it seeks.
[50]
In sum, I consider the Plaintiff
entitled to the particularity sought in paragraphs 17.4, 18.2, 18.3
and 23 of its request.
COSTS
[51]
The Plaintiff
has succeeded in compelling a response to some of its requests, but
not others. Before me, counsel were in agreement
that the party that
was upheld on the majority of the points would have enjoyed
substantial success in the application, and should
be awarded the
costs thereof.
[52]
On balance,
the Plaintiff succeeded in compelling a response to fewer of the
requests than were refused. I accordingly find that
the Defendants
were substantially successful in opposing the application and are
entitled to their costs.
CONCLUSION
[53]
In the
circumstances, I make the following order:
(a)
The Defendants
are ordered to provide further and better particulars to paragraphs
17.4, 18.2, 18.3, 19.1, 19.3.1, 19.3.2, and 23
of the Plaintiff’s
request for further particulars dated 18 August 2020.
(b)
The Plaintiff
is ordered to pay the costs of the application.
I GOODMAN, AJ
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION
PRETORIA
Appearances
Counsel for the
Applicant:
Adv Y Coertzen
Instructing
Attorneys:
Newtons Inc
Counsel for the First
Respondent:
Adv WF Wannenburg
Instructing
Attorneys:
De Klerk Vermaak & Partners Inc.
Date of
hearing
10 June 2021
Date of
judgment
17 June 2021
[1]
Thompson
v Barclays Bank DCO
1969
(2) SA 160
(W) at 165B.
[2]
De
Kock v Minister of Public Works
[2004]
1 All SA 282 (Ck) 296-297.
[3]
Ibid.
[4]
Thompson
v Barclays Bank DCO
1965
(1) SA 365
(W) at 269B;
Gentiruco
AG v Firestone SA (Pty) Ltd
1968
BP 8;
Gentiruco
AG v Firestone SA (Pty) Ltd
1972 (1) SA 589
(A) a
t
639
[5]
2012 (2) SA 45
(ECP) at paras 15-16.
[6]
Paterson
NO v Kelvin Park Properties CC
1998
(2) SA 89
(E) at 104A-E.
[7]
Fourways
Haulage v SA National Roads Agency
[2008] ZASCA 134
;
2009
(2) SA 150
(SCA) at para 12; 32.
[8]
See Harms
Civil
Procedure in the Superior Courts
(Lexis Nexis, 2021) §B21.5.
[9]
See in this regard,
Two
Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) at paras 21-23.
[10]
Cete
v Standard and General Insurance Co Ltd
1973
(4) SA 349
(W)
at 354E-F.
[11]
Ibid. See also
Thonar
v Union and South West Africa Insurance Co Ltd
1981
(3) SA 545
(W) at 551C.
[12]
Control
Instruments Finance (Pty) Ltd v Mercantile Bank Ltd
2001 (3) SA 645
(C) at 648E.