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[2021] ZAGPJHC 554
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Accelerate Property Fund Limited v Ocwen Auto Refinishes CC t/a Top Speed and Another (36753/2019) [2021] ZAGPJHC 554 (24 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 36753/2019
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
24
August 2021]
In
the matter between:
ACCELERATE
PROPERTY FUND LIMITED
Excipient/Plaintiff
and
OCWEN
AUTO REFINISHES CC
t/a
TOPSPEED
First Defendant/First Respondent
GRAHAM
HENRY PETER DAVEY
Second Defendant/Second Respondent
J
U D G M E N T:
This
Judgment was delivered electronically to the parties’ legal
representatives on 24 August 2021, and the deemed date of
the handing
down of the Judgment is accordingly 24 August 2021. The Judgment will
also be uploaded to Caselines.
NEL
AJ
[1]
This is an opposed Exception in terms of
which the Plaintiff, as Plaintiff, has raised fourteen grounds of
complaint in respect
of the contents of the Defendants’ amended
Claim in Reconvention.
[2]
The parties will be referred to in this
Judgment, as in the pleadings, in order to avoid any confusion.
BACKGROUND
[3]
The Plaintiff’s claim as against the
Defendants is based on a Lease Agreement which the Plaintiff alleges
was breached by
the Defendants, and then terminated by the Plaintiff.
[4]
The Plaintiff alleges that the Lease
Agreement was concluded between the First Defendant and Highveld
Syndication No. 16 Limited
on or about 2 November 2011, and
terminated by the effluxion of time on 30 November 2017.
[5]
The Plaintiff allegedly purchased the
immovable property to which the Lease Agreement relates, from
Highveld Syndication No. 16
Limited, and the rights and obligations
of the Lease Agreement were transferred to the Plaintiff.
[6]
The claim as against the Second Defendant
is based on a written Deed of Suretyship, in terms of which the
Second Defendant undertook
to fulfil the obligations of the First
Defendant to the Plaintiff, as surety and co-principal debtor.
[7]
The Plaintiff claims that the First
Defendant breached the terms of the Lease Agreement by not making
payment of its rental obligations
timeously, and accordingly the
Plaintiff claims,
inter alia
,
payment of arrear rental (R282 247.43) and the ejectment of the
First Defendant.
[8]
It appears from the Defendants’ Claim
in Reconvention that the First Defendant vacated the leased premises
at the end of October
2019.
[9]
The Defendants filed a Special Plea, a
Plea, and a Claim in Reconvention in response to the Plaintiff’s
Particulars of Claim.
[10]
The Plaintiff raised various grounds of
complaint against the Claim in Reconvention, which resulted in the
Defendants effecting
amendments to the Claim in Reconvention on 10
March 2020.
[11]
The Plaintiff contends that the amended
Counterclaim remains excipiable and the Plaintiff launched an
Exception, after providing
the Defendants with an opportunity to
remove the grounds of complaint.
[12]
The Plaintiff’s counsel summarised
the fourteen grounds of complaint as being the following:
[12.1]
The Defendants have not set out the necessary allegations
for a claim
for enrichment against the Plaintiff, having regard to the fact that
the Plaintiff was not the party to the original
Lease Agreement.
[12.2]
The Defendants’ allegations that there was a variation
of the
terms of the Lease Agreement are nonsensical.
[12.3]
The Defendants’ claim is premised upon the reduction
of the
size of the Leased Premises from 1 March 2017, however the Defendants
claim repayment of amounts as from 2012.
[12.4]
The amounts referred to in words and numbers do not accord
with one
another.
[12.5]
The Defendants have set out no cause of action, alternatively
the
allegations are vague and embarrassing insofar as it is uncertain as
to whether their claim is premised upon some form of agreement,
and
if so, when, where and how such agreement was entered into.
[12.6]
The calculation of the amounts referred to by the Defendants’
is unclear and nonsensical.
[12.7]
the Defendants make different allegations as to the amounts
due in
different paragraphs and the amounts claimed have no basis in
mathematical calculation or the terms of the agreement as
pleaded by
the Defendants.
[12.8]
The annexures to the Claim in Reconvention do not add up
to the
totals and as such the Plaintiff is unable to ascertain how the
amount claimed is arrived at.
[12.9]
The Defendants’ claim in respect of the communal area
is
nonsensical and/or sets out no cause of action.
[12.10]
The Defendants’ claim for the deposit with interest is without
foundation having regard to the terms of the Lease Agreement and the
provisions of the Consumer Protection Act.
[12.11]
There is no basis or foundation upon which the Consumer Protection
Act is applicable to “
the current situation
” and
as such the Defendants set out no cause of action, alternatively
their claim is vague and embarrassing.
[12.12]
There is no foundation upon which the Consumer Protection Act is
applicable
in circumstances where there has not been an agreement
between the parties.
[12.13]
The Defendants’ claim for unlawful termination is without
foundation
having regard to the month-to-month tenancy which must be
common cause.
[12.14]
The Defendants allege and claim relief under and in terms of the
Consumer
Protection Act not provided for in terms of the Consumer
Protection Act.
THE
LEGAL PRINCIPLES APPLICABLE TO EXCEPTIONS
[13]
For
the purposes of considering an Exception, the Court regards the
factual allegations made in the pleading being considered as
being
factually correct.
[1]
[14]
In
considering the Exception the Court has regard only to the pleading
in respect of which the complaints are raised, as no extraneous
facts
may be adduced by the Plaintiff in order to prove that the pleading
is excipiable.
[2]
[15]
The
purpose of pleadings is to bring clearly to the notice of the Court
and to the opposing party in an action the issues upon which
reliance
is to be placed.
[3]
[16]
An
exception based on the ground that the pleading complained of
discloses no cause of action requires the Plaintiff to persuade
the
Court that upon every possible interpretation of the pleading no
cause of action arises.
[4]
[17]
In
order to sustain a cause of action, a party must set out a clear and
concise statement of the material facts upon which it relies
for its
claim with sufficient particularity to enable the other party to
understand the case it has to meet and to reply thereto.
[5]
[18]
The
material facts which a plaintiff is required to set out in support of
its claim must allege every fact which it would be necessary
to prove
in order to be granted judgment, in order to be regarded as a
complete cause of action.
[6]
[19]
If
a pleading lacks an essential material fact without which there would
be no foundation in law for the claim being made, the pleading
is bad
in law on the basis that it does not disclose a cause of action, and
it would be excipiable.
[7]
[20]
A
litigant is therefore required to plead a complete cause of action
which identifies the issues upon which the litigant seeks to
rely,
and on which evidence will be led, in an intelligible and lucid
format.
[8]
[21]
An
exception suggesting that a pleading is vague and embarrassing
attacks the formulation of the action or defence and not its legal
validity.
[9]
[22]
An
excipient raising a ground of complaint relating to certain portions
of the pleading complained of being vague and embarrassing,
must
demonstrate to the Court that the excipient would be seriously
prejudiced if the offending allegations are not expunged.
[10]
[23]
It is trite that a pleading is vague and
embarrassing when there is some defect or incompleteness in the
manner it is set out which
results in embarrassment to the opposing
party.
[24]
The
prejudice to a litigant faced with a pleading which is allegedly
vague and embarrassing must ultimately lie in an inability
to
properly prepare to meet the opponent’s case. The excipient
must show vagueness amounting to embarrassment, and in turn
embarrassment amounting to prejudice.
[11]
[25]
A
pleading will be regarded as being vague and embarrassing when there
is confusion as to the nature of the cause of action the
party relies
on, or if it can be read in a number of different ways.
[12]
[26]
A party is not entitled to argue that the
opposing party knows what case it has to meet.
[27]
The pleading complained of must be read as
a whole, and paragraphs should not be considered separately or in
isolation.
[28]
Whether or not a litigant is entitled to
the relief claimed ins not an issue that is determined at the
exception stage.
THE
CLAIM IN RECONVENTION
[29]
The various claims set out in the amended
Claim in Reconvention arise from the conclusion of the written Lease
Agreement concluded
between the First Defendant and Highveld
Syndication No. 16 Limited.
[30]
The Defendants raise four separate claims,
based on undue enrichment, the failure to repay the Security Deposit
and interest thereon,
the unlawful termination of a lease agreement
and the violation of the Consumer Protection Act, and a claim for
consequential damages.
[31]
The specific allegations made in the
amended Claim in Reconvention are dealt with below, in considering
the various grounds of exception.
[32]
The amended Claim in Reconvention is
difficult to follow, is confusing and requires assumptions to be
made, in order to understand
the nature of the claims of the
Defendants.
[33]
I have considered each of the grounds of
exception individually, having regard to the principle that the
pleadings must be read
as a whole, rather than considering the
individual paragraphs or allegations in isolation.
FIRST
GROUND OF EXCEPTION
[34]
The first ground of exception raised
comprises a number of complaints which can essentially be summarised
as a failure on the part
of the Defendants to plead the necessary
allegations in order to sustain a claim for undue enrichment.
[35]
It appears from the amended Claim in
Reconvention that the Defendants’ claim based on undue
enrichment arises from the Plaintiff
unilaterally reducing the area
being rented by the First Defendant from the Plaintiff, and the
Plaintiff letting the portion taken
from the First Defendant to a
third party.
[36]
The Defendants’ claim that despite
the reduction in the rental area available to the First Defendant,
the Plaintiff continued
to charge the First Defendant the full amount
for the larger area rented, calculated prior to the reduction in
size.
[37]
The Defendants allege that by claiming and
receiving rental payments from the First Defendant for an area that
was no longer available
to the First Defendant, the Plaintiff had
been unjustifiably enriched in respect of overcharges, in excess of
what the Plaintiff
was legally entitled to charge the First
Defendant.
[38]
The Defendants allege that based on the
calculation of what should be charged for the reduced rental area,
the Plaintiff overcharged
the First Defendant in respect of the
communal area, and that the Plaintiff was accordingly also
unjustifiably enriched by such
payment.
[39]
Whilst the claim for undue enrichment as
set out in the Claim in Reconvention could never be classified as a
model of clarity, the
allegations made provide an indication of the
case the Plaintiff is required to meet in respect of the alleged
overpayments made
by the First Defendant to the Plaintiff, as a
result of which the Plaintiff was enriched and the First Defendant
was impoverished.
[40]
The Defendants have certainly not set out
all of the formal requirements, as established by the common law over
time, for a claim
based on unjustified enrichment, but the intention
of the Defendants’ claim can be discerned from the allegations
made.
[41]
If the first ground of exception raised was
the only ground of exception raised, I would not have upheld such
ground of exception.
[42]
However, taking into account the other
grounds of complaint raised in respect of the claim for unjustified
enrichment, and reading
the pleadings relating to such claim as a
whole, the allegations are vague and embarrassing.
[43]
In considering the clam in its entirety,
the Defendants have not set out a proper cause of action for a claim
for undue enrichment,
and the allegations are vague and embarrassing
to the extent that it causes embarrassment and prejudice to the
Plaintiff.
[44]
The Plaintiff is not able to plead to the
claim based on unjustified enrichment.
[45]
In the circumstances, the first ground of
exception is upheld.
THE
SECOND GROUND OF EXCEPTION
[46]
The second ground of exception raised by
the Plaintiff relates to the allegation made by the Defendants that
the Plaintiff unilaterally
“
varied
”
the terms of the Lease Agreement by reducing the Defendants’
rental area.
[47]
The Plaintiff also complains that the
Plaintiff is unable to understand the relevance of the allegation in
paragraph 16.1 of the
Claim in Reconvention.
[48]
The Defendants allege in paragraph 16.1 of
the Claim in Reconvention that:
“
The
Plaintiff’s unilateral variation of the terms of the Lease
Agreement by reducing the Defendants’ rented area referred
to
herein, is contrary to a non-variation clause in clause 22 of the
Lease Agreement referred to herein; which states that: ‘The
Lease constitutes the whole agreement between the parties …
any agreement to vary this contract shall be in writing and
signed by
the parties.’”
[49]
It appears that the Defendants are alleging
that the Plaintiff “
varied
”
the terms of the Lease Agreement by unilaterally reducing the rental
space available to the Defendants, in breach of what
was set out in
the written Lease Agreement.
[50]
It appears that the Defendants’
reference to a variation is intended to be a reference to the conduct
of the Plaintiff, rather
than suggesting there was a written
variation of the Lease Agreement itself.
[51]
The allegations made by the Defendants are,
however, confusing and capable of more than one meaning, and requires
that assumptions
should be made as to the intention of the
Defendants. The allegations are accordingly vague and embarrassing in
that the Plaintiff
cannot plead thereto and would be prejudiced in
attempting to plead thereto.
[52]
In the circumstances the second ground of
exception is upheld.
THE
THIRD GROUND OF EXCEPTION
[53]
The third ground of exception raised by the
Plaintiff is that the Defendants allege that the rental area was
reduced as from 1 March
2017, but that the Defendants allege that the
First Defendant was overcharged as from 1 January 2012.
[54]
The complaint is that the Defendants have
not set out any basis or grounds upon which the claim for
overcharging relates to the
period from January 2012 to 1 March 2017,
despite which the Defendants claim a reduction in rental for the
entire period as from
January 2012 to 31 October 2019.
[55]
The various allegations contained in
paragraphs 16.6 to 17.3, of the Claim in Reconvention insofar as
there are references to 1
January 2012 and 1 January 2017, are
confusing, and it is certainly not clear on what basis the Defendants
claim the amount of
R1 174 260.89.
[56]
The allegations are vague and embarrassing,
and certainly prejudicial to the Plaintiff in that it is not possible
to understand
what case the Plaintiff is required to meet, or to
plead to such allegations.
[57]
In the circumstances, the third exception
is upheld.
THE
FOURTH GROUND OF EXCEPTION
[58]
The fourth ground of exception relates to
the various differing amounts set out in paragraph 16 of the Claim in
Reconvention.
[59]
The Defendants refer to various different
amounts in paragraph 16 of the Claim in Reconvention, which amounts
appear to relate to
the same cause of action, but there is no
explanation as to how the various amounts are calculated, or why
various amounts are
raised in different paragraphs in respect of what
appears to be the same claim.
[60]
The allegations made by the Defendants in
such regard are clearly vague and embarrassing, and prejudicial to
the Plaintiff, in that
the Plaintiff does not know what case it has
to meet and is unable to plead to the various contradictory amounts
claimed.
[61]
In the circumstances the fourth exception
is upheld.
THE
FIFTH GROUND OF EXCEPTION
[62]
The fifth ground of exception raised
relates to an alleged agreement between the Defendants and “
Fred
Rothman
” in terms of which it was
agreed that there was an overcharge or miscalculation of rent
amounting to R748 848.43, whilst
the Defendants also allege in
paragraph 16.8 of the Claim in Reconvention that the total
indebtedness of the Plaintiff to the Defendants
was R2 746 710.76.
[63]
The Plaintiff complains that the Defendants
do not allege whether the second amount was agreed upon or how such
amount has been
calculated.
[64]
The Plaintiff also complains that it is not
clear who Rothman represented, on what authority he may have acted,
what the nature
of the agreement was, and whether the Defendants rely
upon the agreement for its claim or some other cause or basis.
[65]
The Defendants have alleged that:
“
On
or about 15 August 2018 in a meeting with the Plaintiff’s Agent
Fred Rothman, the parties agreed to refund … “
[66]
In the circumstances it is clear that the
Defendants contend that Fred Rothman was the representative of the
Plaintiff, and was
acting as the agent of the Plaintiff.
[67]
The remaining allegations contained in
paragraphs 16.6 to 16.9 of the Claim in Reconvention are however
confusing and clearly vague
and embarrassing. It is not possible to
determine how the amounts referred to arose, what amounts are being
claimed, or on what
basis the amounts are being claimed.
[68]
The allegations made by the Defendant are
clearly vague and embarrassing and prejudicial to the Plaintiff, in
that the Plaintiff
does not understand the case it has to meet, and
cannot plead to such allegations.
[69]
In the circumstances the fifth exception is
upheld.
THE
SIXTH GROUND OF EXCEPTION
[70]
The sixth ground of exception raised
relates to the allegations in paragraph 16.6 of the Claim in
Reconvention to the effect that
the Plaintiff agreed to refund an
amount of R748 848.43 to the First Defendant. The complaint is
that the Defendants thereafter
allege that the Plaintiff refunded an
amount of R970 754.00, but that the Defendants allege in
paragraph 16.8 of the Claim
in Reconvention that the total debt
amounted to R2 746 710.76 without indicating how such
amount was calculated.
[71]
The Plaintiff points out that the
Defendants rely upon calculations in the annexures to the Claim in
Reconvention, but that the
calculations in the annexures are
calculated as from 2014, and not from either the year 2012 or 2017 as
alleged in the Claim in
Reconvention.
[72]
The Plaintiff complains that the Plaintiff
is unable to ascertain as to what period the reduction of rental
relates to, how the
amount is calculated, or how the agreement came
about.
[73]
As set out above, in considering the fifth
ground of exception, the allegations contained in paragraphs 16.6 to
16.8 and the annexures
to the Claim in Reconvention are contradictory
and confusing, and are accordingly vague and embarrassing.
[74]
The allegations made in such paragraphs are
prejudicial to the Plaintiff, in that the Plaintiff does not know
what case it has to
meet and cannot plead thereto.
[75]
In the circumstances the sixth exception is
upheld.
THE
SEVENTH GROUND OF EXCEPTION
[76]
The seventh ground of exception raised by
the Plaintiff relates to the various amounts referred to in
paragraphs 16 and 17, and
the annexures to the Claim in Reconvention,
and points out the differences between the various amounts, the fact
that no proper
basis is set out for the amounts referred to, that no
proper calculation is set out for the amounts referred to, and that
the Plaintiff
is unable to determine what was allegedly overpaid in
that the Defendant has failed to set out exactly what the various
amounts
relate to, how the amounts are calculated and to whom the
amounts were paid.
[77]
The seventh ground of exception is related
to the fifth and sixth grounds of exception.
[78]
The Plaintiff contends that the entire
calculation of the Defendants’ claim in respect to arrear
amounts is premised on incorrect
amounts which render the claim vague
and embarrassing.
[79]
The Defendants have set out various amounts
in paragraphs 16 and 17 and the annexures, which purportedly reflect
the calculation
of the amounts set out in paragraphs 16 and 17.
[80]
The amounts are not only confusing, but are
set out in such a manner that it is not possible to calculate how the
amounts set out
in the paragraphs have been calculated, or the basis
for the claiming of the various contradictory amounts.
[81]
The allegations are vague and embarrassing
and prejudicial, as the Plaintiff cannot plead to such allegations.
[82]
In the circumstances the seventh exception
is upheld.
THE
EIGHTH GROUND OF EXCEPTION
[83]
The eighth ground of exception is similar
to the seventh ground of exception in that it is based on a complaint
relating to the
amounts set out in the Claim in Reconvention, which
amounts cannot be calculated and do not accord with what is set out
in the
annexures.
[84]
The Plaintiff points out that the
calculations, relying even on the Defendants’ version are
incorrect, and would in effect
result in the Defendant not having any
claim, as no amounts are owing on such calculations.
[85]
As already set out above, the amounts and
calculations set out in paragraphs 16 and 17, and the annexures are
confusing, and are
clearly vague and embarrassing.
[86]
In attempting to determine whether the
Plaintiff’s complaint was justified, I have considered the
calculations, but was unable
to understand how the calculations apply
to the claims.
[87]
The Plaintiff is accordingly prejudiced in
that it cannot plead to the allegations, and cannot determine the
precise amount being
claimed, or how such amount has been calculated.
[88]
In the circumstances, the eighth exception
is upheld.
THE
NINTH GROUND OF EXCEPTION
[89]
The ninth ground of exception raised is
that the Defendants’ Claim in Reconvention includes a claim in
respect of the communal
area.
[90]
The Plaintiff alleges that the amount
claimed is not properly formulated or calculated, and that the
agreement that the Defendants
rely on do not provide for the
Defendants to have any use of the communal areas.
[91]
The Plaintiffs accordingly contend that the
Defendants’ Claim in Reconvention in respect of the claim for
repayment relating
to the communal area is vague and embarrassing,
alternatively sets out no cause of action, as it is not possible to
determine what
the amount claimed by the Defendants relates to.
[92]
The allegations in the Claim in
Reconvention in respect of the communal area are certainly confusing,
in that the Defendants allege
that in terms of the Lease Agreement
they were entitled to reasonable use of the communal area, but as the
area utilised by the
First Defendant was a basement area there was no
access to the communal area.
[93]
The Defendants then allege that the
Plaintiff was not entitled to charge and demand an amount totalling
R3 522 791.67
from the First Defendant, without setting out
on what basis the Plaintiff was not entitled to charge and demand
such amount from
the First Defendant, or how such amount has been
calculated.
[94]
The allegations set out in paragraph 17.1,
17.2 and 17.3 are not only confusing, but clearly vague and
embarrassing to the extent
of prejudicing the Plaintiff.
[95]
In the circumstances the ninth exception is
upheld.
THE
TENTH GROUND OF EXCEPTION
[96]
The tenth ground of exception relates to
the Defendants’ claim for repayment of a security deposit
together with interest
thereon.
[97]
The Plaintiff’s complaint relates to
the terms of the Lease Agreement relied on by the Defendants, which
do not make provision
for the deposit amount to be interest bearing,
the calculation of the interest claimed by the Defendants, the
percentage utilised
for calculating the interest, and the failure by
the Defendants to allege that it has complied with all of its
obligations in terms
of the Lease, which would entitle the First
Defendant to the repayment of its security deposit.
[98]
In the Claim in Reconvention the claim for
the security deposit is set out at paragraph 18.
[99]
The Defendants contend that the security
deposit has not been repaid, and that they are entitled not only to
the security deposit,
but also the interest relevant to the security
deposit.
[100]
The Defendants set out various calculations
of the interest that should be paid to the Defendants, and also rely
on the National
Consumer Protection Act.
[101]
The calculations of the amounts of interest
claimed are contradictory and confusing, and there is no explanation
as to the basis
for using the different percentages claimed.
[102]
Whilst the claim for repayment of the
security deposit is clear, the claim for interest is clearly vague
and embarrassing.
[103]
Whilst the Defendants have set out a cause
of action for the claim in respect of the security deposit,
regardless of whether such
claim is correct or not, the allegations
relating to interest are clearly vague and embarrassing, and it is
not possible to separate
those portions of paragraph 18 that set out
a cause of action for the claim for the refundable security deposit,
from the portions
relating to interest, as it would render the
remaining contents of paragraph 18 entirely nonsensical.
[104]
During argument, Defendants’ counsel
conceded that the Defendants did not have a claim for interest.
[105]
The allegations relating to the claim for
interest are clearly vague and embarrassing and prejudicial to the
Plaintiff.
[106]
In the circumstances, the tenth exception
is upheld.
THE
ELEVENTH GROUND OF EXCEPTION
[107]
The eleventh ground of exception relates to
the claims contained in paragraphs 20 to 22 of the Claim in
Reconvention.
[108]
The Plaintiff’s complaint is that the
Consumer Protection Act is not applicable to the Defendants, that it
is not clear whether
a Lease Agreement was in fact concluded between
the Plaintiff and the Defendants, and on what basis the Plaintiff was
not entitled
to give the First Defendant a month’s notice, as
the Plaintiff contends that a month-to-month tenancy was in place as
between
the parties.
[109]
The claims as set out in paragraphs 20 to
22 of the Claim in Reconvention relate to the Defendants’ claim
that a new Lease
Agreement was concluded, but was unlawfully
terminated and was terminated in violation of the Consumer Protection
Act.
[110]
The Defendants allege that a new Lease
Agreement was offered to the Defendants by the Plaintiff, but the
Defendants were not prepared
to accept the terms, and sought to
negotiate different terms of a new Lease Agreement.
[111]
The Defendants plead that the Plaintiff
refused to negotiate in the manner as required by the Defendants, and
allege that the Plaintiff’s
action was “
unlawful,
unfair, unreasonable and unconscionable and violates … the
Consumer Protection Act
”.
[112]
The Defendants also plead that the terms of
the original Lease Agreement were unfair and unjust, and that the
Defendants were not
obliged to abide by the terms of such a Lease
Agreement.
[113]
The Defendants furthermore plead that the
protection afforded by the Consumer Protection Act applied to the
Defendants, and the
Plaintiff’s termination of the Lease
Agreement was wrongful and unlawful.
[114]
The Defendants however also plead that the
original Lease Agreement terminated on 30 November 2017, and do not
suggest that any
new Lease Agreement was concluded, but rather that
the Plaintiff was obliged to accept the terms for a new Lease
Agreement, as
proposed by the Defendants.
[115]
The Defendants have not set out on what
Lease Agreement it relies, and if it is the Lease Agreement that
expired by the effluxion
of time, why the Defendants were entitled to
rely on the terms of such agreement.
[116]
The Defendants have also failed to set out
the allegations which would justify or indicate that they are
entitled to rely on the
provisions of the Consumer Protection Act,
and that they fall within the various definitions of the Consumer
Protection Act.
[117]
The Defendants’ claims as set out at
paragraphs 20 to 22 of the Claim in Reconvention are confusing and
not understood.
[118]
The allegations set out in such paragraphs
are accordingly vague and embarrassing, and the Plaintiff cannot
plead to such allegations.
[119]
In the circumstances the eleventh ground of
exception is upheld.
THE
TWELFTH GROUND OF EXCEPTION
[120]
The twelfth ground of exception raised is
that the Defendants’ claim, which relies on the Consumer
Protection Act is based
on the allegations that the Plaintiff was
obliged to contract with the First Defendant on the terms as
specified by the First Defendant,
and the Plaintiff’s failure
to do so was in breach of the Consumer Protection Act, as the First
Defendant could determine
what terms were reasonable.
[121]
The Plaintiff contends that the Consumer
Protection Act cannot be interpreted in such a manner, and the
Consumer Protection Act
cannot be applicable where agreement is not
reached and there is no basis or grounds upon which the Plaintiff is
obliged to enter
into an agreement on terms it is not agreeable to.
[122]
The allegations relating to an obligation
on the part of the Plaintiff to contract with the First Defendant, on
the basis that the
Defendants had already lodged a complaint with the
National Consumer Commission lacks all of the necessary averments for
a proper
cause of action.
[123]
The provisions of the Consumer Protection
Act clearly do not oblige a party to conclude an agreement with
another party, on grounds
that are acceptable only to one party.
[124]
In the circumstances the allegations made
relating to an obligation to conclude a further Lease Agreement are
clearly vague and
embarrassing, and no cause of action is disclosed
in such regard.
[125]
In the circumstances, the Plaintiff cannot
plead to the allegations, and is clearly prejudiced.
[126]
In the circumstances the twelfth exception
is upheld.
THE
THIRTEENTH GROUND OF EXCEPTION
[127]
The thirteenth ground of exception also
relates to the claim for unlawful termination of the Lease Agreement.
[128]
The Plaintiff complains that the Defendants
allege that the Lease Agreement terminated on 30 November 2017, that
it was not renewed,
that the tenancy arrangement accordingly ran on a
month-to-month basis, and that the parties were unable to agree upon
terms, that
the Defendants allege that they were not obliged to
comply with the Lease Agreement which already terminated by the
effluxion of
time, but that the Plaintiff’s termination of the
Lease on 1 October 2019 by giving one month’s notice was
unreasonable
and therefore invalid.
[129]
The Plaintiff complains that the Defendants
have not set out a cause of action to prohibit the Plaintiff from
terminating the agreement
or to claim that the termination of the
agreement is invalid.
[130]
Whilst I could find no allegation in the
Claim in Reconvention to the effect that the Defendants conceded that
the rental arrangement
was a monthly tenancy, the Defendants have not
set out any cause of action entitling the Defendants to contend that
the termination
of the Lease Agreement was prohibited or unlawful.
[131]
The allegations relating to the invalidity
of the termination of the agreement are accordingly vague and
embarrassing, and the Plaintiff
is unable to plead meaningfully to
such allegations.
[132]
In the circumstances the thirteenth
exception is upheld.
THE
FOURTEENTH GROUND OF EXCEPTION
[133]
The basis for the fourteenth ground of
exception is that the Consumer Protection Act, as relied on by the
Defendants, does not provide
for the remedies as sought by the
Defendants, and that the Defendants have not set out any cause of
action justifying on what basis
the Defendants are entitled to
consequential losses.
[134]
The Defendants’ third claim, which
relates to consequential damages, is set out at paragraphs 23 to 27
of the Claim in Reconvention.
[135]
The Defendants essentially allege that as a
result of the violation of the provisions of the Consumer Protection
Act by the Plaintiff,
the conduct of the Plaintiff in demoting the
Lease Agreement to a month-to-month tenancy, and the termination of
the Lease Agreement
in circumstances where the Plaintiff is
financially indebted to the Defendants, entitles the Defendants to
claim consequential
damages for the suspension, and relocation costs
of its business.
[136]
Whilst Section 52(3) of the Consumer
Protection Act empowers a Court to make any appropriate order, the
Defendants have not set
out a cause of action for any consequential
damages based either on the Consumer Protection Act, or the common
law.
[137]
In the circumstances, the claim for
consequential damages does not set out a valid cause of action, and
is also vague and embarrassing,
amounting to prejudice to the
Plaintiff.
[138]
In the circumstances the fourteenth
exception is upheld.
DELIBERATION
[139]
Defendants’ counsel urged me not to
uphold the Exception, and argued (as also set out in the Defendants’
Heads of Argument)
that proper causes of action have been set out in
respect of all three claims raised by the Defendants.
[140]
Defendants’ counsel also argued that
because the Plaintiff was able to “
plead
”
to the allegations in the Claim in Reconvention, as set out in the
Notice of Exception, illustrates that the Defendants
have set out
proper causes of action.
[141]
Defendants’ counsel also submitted
that the Court should adopt a holistic approach when considering the
Exception and must
read the pleadings as a whole in order to
determine whether the pleadings are capable of sustaining the
necessary causes of action.
[142]
Defendants’ counsel also pointed out
that the Court must consider whether there is a possibility that
evidence might be deduced
by the Defendants at the trial which would
resolve any uncertainties and disputed facts.
[143]
In regard to the difficulties raised by the
Plaintiff in calculating the enrichment amounts claimed, it was
submitted by the Defendants’
counsel that it was not necessary
to specify the precise amounts claimed, as the Defendants are
entitled to a fair and reasonable
value. It was submitted that all a
party needs to do in the pleadings is claim that amounts are due to
it, and then lead evidence
at the trial to show what a fair and
reasonable “value” would be.
[144]
It was accordingly submitted on behalf of
the Defendants that the Exception should accordingly be dismissed.
[145]
The Plaintiff submitted that the Exception
should be upheld, and that the Claim in Reconvention should be
struck-out.
[146]
I considered all of the arguments and
submissions of both the Plaintiff’s counsel and the Defendants’
counsel in determining
the various exceptions raised.
[147]
As already set out above, in dealing with
the various exceptions, I have indeed adopted a holistic approach,
and have considered
the pleadings as a whole, in finding that the
grounds of exception are valid, and should be upheld.
[148]
In the circumstances, I make the following
order:
[148.1]
The Exception is upheld;
[148.2]
The Defendants’ amended Claim in Reconvention is set aside;
[148.3]
The Defendants are granted leave to file an amended Claim in
Reconvention,
within 30 days from the date of this Order;
[148.4]
The Defendants are to pay the costs of the Exception.
G
NEL
[Acting
Judge of the High Court,
Gauteng
Local Division,
Johannesburg]
Date
of Judgment:
24
August 2021
APPEARANCES
For
the Excipient:
Adv. J G Dobie
Instructed
by:
Reaan Swanepoel Attorneys
For
the Respondents:
Adv M T Goodman
Instructed
by
Adv M T Goodman is practising as an advocate with a Trust Account
[1]
Marney
v Watson & Another
1978
(4) SA 140
(C) at 144F-G.
[2]
Viljoen
v Federated Trust Limited
1971
(1) SA 750
(O) at 754F-G.
[3]
Durbach
v Fairway Hotel (Pty) Ltd
1949
(3) SA 1081
(SR) at 1082;
Minister
of Agriculture and Land Affairs & Another v De Klerk &
Others
2014 (1) SA 212
(SCA) at para [39].
[4]
Wetback
Contracts (Pty) Ltd v Top Fix Scaffolding (Pty) Ltd
[2021]
JOL49384 (GP) at para [7].
[5]
Minister
of Safety and Security v Slabbert
[2010]
2 All SA 471
(SCA) at para [11].
[6]
Evans
v Shield Insurance Company Ltd
1980
(2) SA 814
(A) at 838D-F.
[7]
Baliso
v Firstrand Bank Limited t/a Wesbank
2017
(1) SA 292
(CC) at 303D-E.
[8]
Trope
v SARS & Another
1992 (3) SA 208
(T) at 216G-H;
KOTH
Property Consultants CC v Lepele-Nkupi Local Municipality
2006 (2) SA 25
(T) at para [18.];
Jowell
v Brümmel Jones
1998 (1) SA 836
(W) at 899.
[9]
Wetback
Contracts (Pty) Ltd, supra,
at
para [8].
[10]
Levitan
v Newhaven Holiday Enterprises CC
1991
(2) SA 297
(C) at 298A-D;
Francis
v Sharp & Others
[2003]
2 All SA 201
(C) at 202.
[11]
Gallagher
Group Limited & Another v IO Tech Manufacturing (Pty) Ltd &
Others
[
2014
(2) SA 157
(GNP) at paras [54] and [55].
[12]
Wilson
v SAR & H
1981
(3) SA 1016
(C) at 1018A.