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[2021] ZAMPMBHC 37
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Bendrew Trading v Sihle Property Developers and Plant Hire (1857/2020) [2021] ZAMPMBHC 37 (13 August 2021)
IN
THE HIGH COURT OF SOUTH AFRICA,
MPUMALANGA
DIVISION, MBOMBELA
(MAIN
SEAT)
Case
No: 1857/2020
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
13 August 2021
In
the matter between:
BENDREW
TRADING
Plaintiff
and
SIHLE
PROPERTY DEVELOPERS AND PLANT HIRE
Defendant
JUDGMENT
BRAUCKMANN
AJ
[1]
In this matter the Defendant filed
four exceptions against the Plaintiff’s amended Particulars of
Claim.
THE
EXCEPTIONS:
[2]
The exceptions can be summarized as
follows:
First ground of
exception:
[2.1]
Rule 18 of the Uniform Rules of Court (“the
Rules”) states:
“
A
party who in his pleading relies on a contract shall state whether
the contract is written or oral and when, where and by whom
it was
concluded. …”
[2.2]
Further in terms of Rule 18(4) of the
Rules:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence
or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto.”
[2.3]
The Defendant states that the Plaintiff
failed to plead any particularity regarding the alleged oral
agreement. So it is stated
that the Defendant has to guess, infer or
assume what the material terms of the alleged oral agreement are.
[2.4]
The first exception is a general exception.
Second ground of
exception:
[2.5]
The Defendant pleads that not sufficient
particulars are provided to it to plead as in terms of paragraph 5 of
the Particulars of
Claim it was stated:
“
It
was a material term of the agreement that the Plaintiff would pay the
aforesaid amount of money in favour of the Defendant’s
service
provider known as Trumod, and whose particulars are to the Plaintiff
unknown.”
[2.6]
Defendant states that it should not have to
guess, infer or assume who Trumod is and that the Plaintiff is
obliged to plead sufficient
particulars to enable it to properly
respond to the allegation.
[2.7]
Further, Defendant alleges, the Plaintiff
fails to plead sufficient particulars about the alleged payment made
on behalf and at
the request of it to Trumod.
Third ground of
exception:
[2.8]
In paragraph 6 of the Particulars of Claim
it is stated:
“
Further,
it was a material term of the agreement that the payment of
R2,000,000.00 (two million Rand) made by the Plaintiff in favour
of
Trumod was made on behalf and at the request of the Defendant.”
[2.9]
Further in paragraph 7 that:
“
Another
material term of the agreement was that the Defendant would repay the
amount borrowed from the Plaintiff on or before 30
November 2019.”
[2.10]
In paragraph 8 of the Particulars of
Claim it is stated:
“
Pursuant
to the oral agreement between the parties, the Plaintiff made a
payment of R2,000,000.00 (two million Rand) in favour of
Trumod on 13
August 2019 as per the request of the Defendant. This is depicted in
the notification of payment by First National
Bank, attached hereto
marked as ‘PT1’.”
[2.11]
Defendant states that payment was
made to Trumod, but on the other hand the Plaintiff states that the
amount was borrowed from the
Plaintiff by the Defendant. It states
that it cannot be ascertained from the pleading what the Plaintiff’s
basis of the alleged
claim is and cannot plead accordingly.
Fourth ground of
exception:
[2.12]
Paragraph 9 of the Particulars of
Claim states:
“
According
to the notification of payment, the reference is depicted as
‘SIHLE-002D-1’.
[2.13]
The word “
SIHLE”
is derived from the Defendant’s name known as “Sihle
Property Developers and Plant Hire”.
[2.14]
Further that the Defendant failed to repay
the amount of R2,000,000.00 on 30 November 2019 and therefore
continues to be in breach
of the agreement between the parties.
[2.15]
The Defendant states that the
Plaintiff fails to property illustrate the reference to “
SIHLE”
on the proof of payment is vague.
[2.16]
It is lastly alleged that the Plaintiff
failed to illustrate on which basis the Defendant should repay the
money which the Plaintiff
paid to Trumod on the Defendant’s
behalf and at its request.
THE
LAW IN BRIEF
[3]
Before I turn to deal with the
specific grounds, I wish to deal briefly with the law on exceptions.
[4]
Where a pleading is vague and
embarrassing, or lacks averments which are necessary to sustain an
action or a defence, as the case
may be, the opposing party may
within the period allowed for the filing of a subsequent pleading,
deliver an exception and may
apply to the Registrar to set it down
for argument.
[5]
The excipient must allow the
counter-party the periods as set out in Rule 23 of the Rules to
remove the excipient’s cause
for complaint, failing which the
excipient may then file its exception within the period allowed
therefor and apply to have it
set down for hearing.
[6]
An
exception is a legal objection to the opponent’s pleading and a
defect inherent in the pleading. For the purposes of an
exception one
must admit for the moment that all the allegations in the Particulars
of Claim are true.
[1]
[7]
The Court must look at the pleading
excepted to as it stands. No facts outside the pleading can be
brought to issue except in the
case of inconsistency.
[8]
The
object of an exception is to dispose of the case or a portion thereof
in an expeditious manner or to protect a party against
an
embarrassment which is so serious as to merit the costs even of an
exception.
[2]
[9]
An
exception should be dealt with sensibly and
not
in an over-technical
manner.
[3]
[10]
The
exception that the pleading is vague and embarrassing
cannot
be directed at a particular paragraph
within a cause of action. It goes to the whole cause of action which
must be demonstrated to be vague and embarrassing.
[4]
In such an event the exception will not be allowed unless the
excipient will be seriously prejudiced if the offending allegations
were not expunged.
[5]
[11]
The
ultimate test as to whether or not the exception should be held is
whether the excipient will be prejudiced.
[6]
[12]
The
onus is on the excipient to show both vagueness amounting to the
embarrassment and the embarrassment amounting to prejudice.
[7]
[13]
The
Court would not decide the validity of an agreement relied upon and
whether a contract is void for vagueness by way of exception.
[8]
[14]
The
object of an exception is not to embarrass the opponent. It is to
settle a case (or part of it) in an inexpensive and easy fashion,
or
to protect the excipient against an embarrassment that is so serious
that it merits the costs of an exception.
[9]
[15]
Where
the wording of a Particulars of Claim is ungrammatical and ambiguous,
the
uncertainty attaching to the pleader’s intention cannot avail
the excipient unless he shows that on either construction
of the
ambiguous claim it is excipiable
.
[10]
[16]
A
Particulars of Claim that is so inherently contradictory and
accordingly vague and embarrassing, and a contradiction between the
Particulars of Claim as well as the annexures, will result in a
pleading to be vague and embarrassing and should be set aside.
[11]
[17]
The purpose of an exception is to
determine whether a pleading is vague and embarrassing and to save
the costs as if it is found
that the pleading is vague and
embarrassing like is alleged
in casu,
it would put an end to the case unless an amendment is effected if
the other party is allowed to do so.
[18]
Whether
a matter is decided on exception, excipients must show that the
pleading is excipiable on every interpretation which could
reasonably
be attached to it, the Plaintiff is confined to the facts alleged in
the Particulars of Claim.
[12]
[19]
A
party that pleads must do so with sufficient clarity and
particularity. The material facts upon which he/she relies for the
conclusion
of law upon which it relies, it wishes the Court to draw
from those facts, must appear clearly from it. Such a party should
therefore
not plead a conclusion of law without pleading the material
facts giving rise to it.
[13]
[20]
As
stated by Adv. Prinsloo, on behalf of the excipient, the object of
pleadings are to define the issues as to enable the other
party to
know what case it has to meet.
[14]
[21]
The Court should also not be
over-technical. In this regard it was stated that:
“
A
Court should be able, where necessary, to cut to the chase and to be
practical about these matters. Resolution of matters on
technicalities only serves to delay the resolution of matters much to
the unnecessary escalation of dispensing justice.”
[15]
First
ground of exception:
[22]
The first ground of exception as
referred to earlier in this judgment actually relates to and includes
the other exceptions.
[23]
For the purposes of this judgment, I
will deal with each and every exception.
[24]
The first ground is that the
Plaintiff has failed to plead any particularity regarding the alleged
oral agreement, specifically
that it failed to plead the material
terms of the oral agreement.
[25]
Paragraph 4 of the Particulars of
Claim refers to the oral agreement that was concluded. The balance of
the Particulars of Claim
sets out the material terms of the
agreement. Paragraph 5 of the Particulars of Claim reads:
“
It
was a material term of the agreement that …”
[26]
Paragraph 6 of the particulars
of claim reads:
“
Further,
it was a material term of the agreement that …”
[27]
Paragraph 7 of the Particulars of
Claim reads:
“
Another
material term of the agreement was ….”
[28]
It is therefore not correct, as will
be dealt with later on. The first ground of exception is therefore
not based on any good reason
or law and is hereby dismissed.
Second
ground of exception:
[29]
The Defendant relies on Rule 18(4)
of the Rules to the effect that every pleading shall contain a clear
and concise statement of
the material facts relied upon by the
pleader.
[30]
It then complains about paragraph 5
of the Particulars of Claim which states that it was a material term
of the agreement that the
Plaintiff would pay [R2,000,000.00]
in
favour of the Defendant’s service provider
known as Trumod and whose further
particulars are to the Plaintiff unknown.
[31]
The Plaintiff clearly states that
Trumod, the Defendant’s (excipient’s) service provider,
would be paid the amount of
R2,000,000.0 by Plaintiff on behalf of
the Defendant. The Defendant therefore do not have to guess, infer or
assume who Trumod
is.
[32]
I am of the view that the Plaintiff
provided sufficient particulars in the Particulars of Claim of who
Trumod is. Trumod is simply
the Defendant’s service provider
whom the Plaintiff paid an amount of R2,000,000.00 to
on
behalf of and at the request
of the
Defendant.
[33]
I fail to see how the Defendant can
allege that sufficient particularity was not provided as to who
Trumod is.
The Defendant asked the
Plaintiff
to pay the amount of
R2,000,000.00 to Trumod.
[34]
If Defendant does not know who
Trumod is, it should plead accordingly.
[35]
Furthermore, the Defendant did not
indicate how it would be prejudiced at all if the Plaintiff’s
Particulars of Claim is not
allowed to stand as it is.
[36]
This ground of exception cannot be
upheld.
Third
ground of exception:
[37]
Defendant complains that:
“
It
cannot be ascertained from the pleading what
the Plaintiff basis its alleged claim on and has therefore failed to
plead with significant
particularity for the Defendant to properly
respond thereto.”
[38]
I do not agree with the Defendant.
Sufficient particularity is provided to the Defendant in paragraphs
6, 7 and 8 of its Particulars
of Claim. In paragraph 6 of the
Particulars of Claim it is stated that it was a material term of the
agreement that the amount
of R2,000,000.00 was to be paid by the
Plaintiff to Trumod on behalf and at the request of the Defendant.
Earlier in the Particulars
of Claim Trumod is identified as the
Defendant’s service provider.
[39]
In paragraph 7 of the Particulars of
Claim the Plaintiff goes further and states that the amount thus paid
over to Trumod and referred
to in paragraph 6 of the Particulars of
Claim as repayable to the Plaintiff by the Defendant on or before 13
November 2019. Should
the amount not be paid before the date, the
Defendant would be
in mora
and therefore the Plaintiff would be entitled to issue Summons.
[40]
The Plaintiff goes further in
paragraph 8 of the agreement by stating that at further request of
the Defendant it paid the amount
of R2,000,000.00 to Trumod. It goes
further by attaching a proof of payment from First National Bank to
Trumod.
[41]
If the Defendant denies that any
payment was made on its behalf to Trumod, it could simply deny it.
[42]
In the argument and in Heads of
Argument on behalf of the Defendant I also cannot establish what
prejudice the Defendant would suffer
at all.
[43]
The terms of the agreement are
provided to the Defendant in clear terms. There is no reason why the
Defendant cannot plead thereto.
This ground for exception cannot be
upheld.
Fourth
ground of exception:
[44]
As stated, when I dealt with the
third ground of exception, this ground of exception is also without
any merit.
[45]
The Plaintiff states explicitly in
paragraph 9 that “
the word SIHLE
derived from the Defendant’s name known as Sihle Property
Developers and Plant Hire”
. The
Plaintiff connects the payment of the R 2 000 000.00 to
Trumod on behalf of the Defendant by inserting the Defendant’s
name, Sihle Property Developers and Plant Hire, in the notice of
payment.
[46]
It simply illustrates that the
Defendant requested the Plaintiff to pay R2,000,000.00 to Trumod,
which amount would be repayable
by 30 November 2019 as it was a loan
to the Defendant.
[47]
It is difficult for me to establish
how the Defendant could not plead to the allegations contained in
these paragraphs.
[48]
The exception is also without merit.
[49]
ORDER
The
exceptions are dismissed and the Defendant is ordered to pay the
costs.
DATED
AT MIDDELBURG, MPUMALANGA ON THIS 13
TH
DAY OF AUGUST 2021.
H.F.
BRAUCKMANN
ACTING
JUDGE OF THE HIGH COURT
REPRESENTATIVE
FOR THE APPELLANT: Adv J PRINSLOO
INSTRUCTED
BY: WDT ATTORNEYS elsie@wdtatt.co.za
REPRESENTATIVE
FOR THE RESPONDENT: MR N MKHOMBE
INSTRUCTED
BY: NOMASWAZI SHABANGU ATTORNEYS Ndumiso Mkhombe ndumiso@nsalaw.co.za
DATE
OF HEARING: 12 AUGUST 2021
DATE
OF JUDGMENT: 13 AUGUST 2021
[1]
See
Brooks
v. Minister of Safety and Security,
2008(2)
SA 397 (C) at 402 I.
[2]
Francis
v. Short,
2004(3)
SA 230 (C) at page 237 C to F.
[3]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking & Advertising Standards
Authority SA,
2006(1)
SA 461 (SCA) at 465 H.
[4]
Joell
v. Bramwell-Jones,
1998(1)
SA 836 (W) at page 899 G.
[5]
Levitan
v. Newhaven Holiday Enterprises CC,
1991(2)
SA 297 (C) at 298 A; and
Gallagher
Group Ltd. v. IO Tech Manufacturing (Pty) Ltd,
2014(2) SA 157 (GNP) at 166 G to H.
[6]
Trope
v. South African Reserve Bank,
supra,
at page 211 B.
[7]
Calendar-Easby
v. Grahamstown Municipality,
supra,
at 813 A.
[8]
Francis
v. Sharp,
2004(3)
SA 230 (C) at 240 F to G.
[9]
Gillyfrost
54 (Pty) Ltd v. Nelson Mandela Bay Metropolitan Municipality,
[2015]
4 All SA 58
(ECP)
[10]
Calendar-Eeasby
v. Grahamstown Municipality,
1981(2)
SA 810 (E).
[11]
Drope
& Others v. South African Reserve Bank,
1993(2)
All SA 278 (A).
[12]
First
National Bank of South Africa v. Perry N.O. & Others,
2001(3)
All SA 331 (A).
[13]
Radebe
& Others v. Eastern Transvaal Development Board,
1988(2)
SA 785 (A) at 792 J to 793 G.
[14]
FPS
Ltd v. Trident Construction (Pty) Ltd,
1989(3)
SA 537 (A) at 541 J.
[15]
Madlala
v. City of Johannesburg & Another,
(23236/2017)
[2019] ZAGPJHC 80 (8 February 2019).