Mills Fitchet (Natal) (Pty) Ltd v Mpofana Municipality (3403/2019) [2021] ZAKZPHC 22 (30 April 2021)

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[2021] ZAKZPHC 22
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Mills Fitchet (Natal) (Pty) Ltd v Mpofana Municipality (3403/2019) [2021] ZAKZPHC 22 (30 April 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not
Reportable
Case No:  3403/2019
In
the matter between:
MILLS
FITCHET
(NATAL)
(PTY) LTD
PLAINTIFF/RESPONDENT
and
MPOFANA
MUNICIPALITY             DEFENDANT/EXCIPIENT
ORDER
The
defendant’s exception is dismissed with costs.
JUDGMENT
Mathenjwa
AJ
Introduction
[1]
The plaintiff, who is the defendant in the
claim in reconvention, instituted an action against the defendant,
who is the plaintiff
in the claim in reconvention, in which it claims
payment of a sum of money arising out of breach of contract.
[2]
The defendant pleaded to the plaintiff’s
claim, and raised a counterclaim against the plaintiff, in which it
claims a declaration
that the original contract between the parties
is invalid
ab initio
and seeks repayment of the sum of money paid to the plaintiff in
terms of the contract.
[3]
In paragraph 2 of the counterclaim, the
defendant incorporated the plaintiff’s averments in paragraphs 1–4
of the claim in convention,
as if specifically stated, and further
stated that ‘save for the fact that the annexure “POC1” lacks
the SCM “proposal”
of the plaintiff, which the plaintiff has
claimed is an essential of the contract’. It is noted that
paragraphs 1 and 2 of the
particulars of claim contain the citation
of the parties, paragraph 3 states that the parties entered into a
written contract, and
paragraph 4 states that a copy of the agreement
is annexed thereto and marked annexure ‘POC1’.
[4]
The plaintiff pleaded to the defendant’s
counterclaim. In pleading to paragraph 2 of the counterclaim, the
plaintiff stated that
‘the contents of these paragraphs are noted’.
The defendant took an exception to the plaintiff’s plea on the
ground that the
plaintiff’s plea is vague and embarrassing, in that
it lacks particularity to an extent amounting to vagueness, and the
result
is that the defendant is prejudiced in not being able to
properly plead further thereto.
The
respondent’s grounds of exception
[5]
I now turn to the defendant’s grounds of
exception.
[6]
At paragraph 1 of the plea in reconvention,
the plaintiff simply notes the averment of the defendant that the
contract lacks the SCM
proposal of the plaintiff. The defendant
requires the plaintiff to indicate whether it will produce the said
SCM proposal, or whether
it has abandoned same. The defendant also
requires the SCM proposal in order to plead further, and because the
SCM proposal is an
essential aspect of the contract itself. The
defendant avers that the plaintiff cannot simply ignore the fact that
the SCM proposal
is ‘missing’.
[7]
In paragraph 5 of the plea in reconvention,
the plaintiff denies that the defendant made payments in respect of
each of the plaintiff’s
invoices, without specifying which invoices
were not paid. The plaintiff refers to the particulars of claim in
this regard, but therein
is contained only a payment of an amount of
R37 142.71 for the period of 1 July 2015 to 30 June 2016. The
defendant requires the
plaintiff to indicate which invoice or
invoices were not paid, with specific reference to invoice numbers or
through the production
of copies of those invoices.
[8]
At paragraph 13 of the plea in
reconvention, the plaintiff refers to the non-payment by the
defendant of each tax invoice rendered,
without producing any details
about these tax invoices. The defendant avers that it is unable to
plead further without the invoice
numbers or copies of the invoices
themselves.
[9]
At paragraph 14 of the plea in
reconvention, the plaintiff states that it duly performed its
obligation in terms of the agreement.
However, according to the
defendant, the agreement required that monthly reports be submitted
as proof of work done. The defendant
states that the plaintiff has
failed to refer to these monthly reports, and has not attached these
to its plea. Allegedly, the defendant
cannot plead further because it
does not know which monthly reports the plaintiff is referring to,
and accordingly requires the plaintiff
to list the monthly reports to
which it refers or to append them to the plea.
[10]
At paragraph 14 of the plea in
reconvention, the plaintiff denies the averment of the defendant,
without indicating what amounts were
paid during that period if the
amount of R2 913 969 is not correct. It is stated that the defendant
cannot plead further without
verifying what payments the plaintiff
admitted to receiving, and the plaintiff is accordingly required to
state exactly what amount
it received in that period as payment for
services rendered.
[11]
In paragraph 18 of the plea in
reconvention, the plaintiff again states that the payments made did
not cover each and every invoice
delivered to the defendant. The
defendant again requires the plaintiff to indicate which invoices
were paid and which were not, or
which were partially paid, and to
attach copies of those invoices to the plea.
[12]
At paragraph 19 of the plea in
reconvention, the plaintiff again simply denies the averment. The
defendant is allegedly unsure whether
this indicates that nothing was
paid by the defendant to the plaintiff in this period. The defendant
requests this information to
be able to verify what was not paid and
the reason for the non-payment. It is also stated that this
information would shorten the
number of issues in dispute at trial.
[13]
At paragraph 20 of the plea in
reconvention, the plaintiff again states that not each and every
invoice was paid. The defendant again
requires the plaintiff to
indicate which invoices were paid and which were not. The defendant
avers that it requires this information
to know how to plead further
and that this will reduce the issues in dispute.
The
law
[14]
Uniform rule 22 entitles a defendant to deliver a claim in
reconvention. Further, the defendant is allowed to incorporate
allegations contained in the plaintiff’s particulars of claim, by
way of reference, into the defendant’s counterclaim. (See DE
Van
Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
(2019 –
Revision Service 8) at D1–313.)
[15]
However, a claim in convention and a claim
in reconvention are two separate actions with distinct sets of
pleadings. In explaining
the distinctiveness of the claim in
convention and the claim in reconvention, Lansdown J in
Fielding
v Sociedade Industrial de Oleos Limitada
1935 NPD 540
at 548 held that:
‘
The
only point of contact between claim and counterclaim in this case is
that both the plaintiff's claim for commission and disbursements,
and
the defendant's counterclaim for damages, arise out of transactions
concluded under and by virtue of the same contract of agency
between
them. The claims are entirely different in their nature, and the
counterclaim is quite misplaced in the plea. The undesirability,
from
the point of view of procedure, of embodying in the plea the
substance of the counterclaim is obvious. The two actions are
separate
and distinct, and each must have its separate set of
pleadings. But if the allegations of the counterclaim are embodied in
the plea,
plaintiff's replication must deal with those allegations,
and thus the issues of the claim in convention would become confused,
in
the same set of pleadings, with those of the reconventional
claim.’
[16]
Accordingly, although the claim in convention and
claim in reconvention may arise from the same contract, these claims
are distinctive
and any deficiency in the claim in convention may not
be cured in the claim in reconvention.
[17]   Uniform rule 18(4) requires every
pleading to
‘
.
. .
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.’
Uniform
rule 18(5) requires a party when denying any ‘. . . allegation of
fact in the previous pleading of the opposite party, he
shall not do
so evasively but shall answer the point of substance’.
[18]
If the pleading is not clear and concise or if the denial of an
allegation of fact in the previous pleading of an opposite
party is
done evasively, the opposite party is entitled to call on the other
party to remedy such irregular step in terms of Uniform
rule 30. If
the pleading is furthermore vague and embarrassing, the opposite
party is entitled to raise an exception.
[19]   An exception is regulated by Uniform
rule 23 of the court. Rule 23(1) entitles an opposing party to
deliver an exception
when ‘. . . any pleading is vague and
embarrassing, or lacks averments which are necessary to sustain an
action or defence, as
the case may be. . .’. Rule 23(1)
(a)
provides that
‘
.
. . where a party intends to take an exception that a pleading is
vague and embarrassing such party shall, by notice, within 10
days of
receipt of the pleading, afford the party delivering the pleading, an
opportunity to remove the cause of complaint within
15 days of such
notice. . .’.
[20]
As stated by Ponnan JA in
Picbel Groep
Voorsorgfonds (In Liquidation) v Somerville,
and related matters
2013 (5) SA 496
(SCA) para 7, in exception proceedings, the excipient
has a duty to persuade the court that the pleading is excipiable, and
it follows
that the defendant has the duty to persuade the court that
the pleadings are vague and embarrassing to an extend that the
defendant
is prejudiced.
[21]   The meaning of the phrase vague and
embarrassment was explained in
Leathern v Tredoux
(1911) 32
NPD 346
at 348, where Dowe Wilson JP held that:
‘
The
object, of course, of all pleadings is that a succinct statement of
the grounds upon which a claim is made or resisted shall be
set forth
shortly and concisely; and where a statement is vague, it is either
meaningless, or capable of more than one meaning. It
is embarrassing
in that it cannot be gathered from it what ground is relied on, and
therefore it is also something which is insufficient
in law to
support in whole or in part the action or defence; accordingly, I
think that it is not a good objection to an exception
that it is
taken on the ground that the averment complained of is vague and
embarrassing.’
[22]
It is not required that a plea should not disclose a defence at all
before an exception can be taken, but an exception
can be taken even
when the plea discloses a defence, but the plea is vague as to the
nature and scope of the defence. (See
General
Commercial and Industrial Finance Corp Ltd v Pretoria Portland Cement
Co Ltd
1944 AD 444
at 455). The
defendant should have a clear exposition of the plaintiff’s claim
to enable it to plead adequately to the plaintiff’s
claim. (See
Venter and others NNO v Barritt Venter and others NNO v
Wolfsberg Arch Investments 2 (Pty) Ltd
2008
(4) SA 639
(C) para 15.)
Application of the law to the facts
[23]
Mr Moodley, appearing for the defendant, categorised the defendant’s
grounds of exception into two groups. The
first group is based on the
lack of the SCM documents being attached to the plaintiff’s
particulars of claim. The second group
of grounds of exception is the
lack of particularity in the plaintiff’s plea to the defendant’s
counterclaim.
[24]
I now deal with the grounds of exception under the two groups as
categorised by Mr Moodley.
The lack of SCM documents
[25]
The plaintiff in its particulars of claim referred to a written
contract which was attached as annexure ‘POC1’.
However, there
was no reference to the SCM proposal in the plaintiff’s particulars
of claim. In its plea to the plaintiff’s particulars
of claim, the
defendant admitted the averments that the written agreement is
attached as annexure ‘POC1’, but further stated
that ‘save for
the fact that the annexure POC1 lacks the SCM “proposal” of the
plaintiff, which the latter refers to in section
E of the contract
and which the parties had determined was integral to the contract’.
However, save for mentioning that the SCM
proposal was not attached
to the agreement, the defendant did not pursue the issue of the SCM
proposal in the claim in convention.
[26]
In paragraph 2 of the defendant’s counterclaim, it incorporated the
plaintiff’s averments dealing with the citation
of parties and the
nature of the contract which is contained in paragraphs 1–4 of the
particulars of claim. The plaintiff pleaded
to this paragraph by
simply ‘noting’ these averments.
[27]   The first issue for determination is
whether the averment that annexure ‘POC1’, which lacks the SCM
proposal,
constitutes a pleading. Pleadings are defined as
‘
.
. . “the written statements of the parties served by each party in
turn upon the other which must set out in summary form the
material
facts on which each party relies in support of his claim or defence,
as the case may be”.’
(See
DE Van Loggerenberg and E Bertelsmann
Erasmus:
Superior Court Practice
(2020 Revision
Service 15) at D1–228
.
)
[28]
As it was stated in
Minister of
Agriculture and Land Affairs and another v De Klerk and others
2014
(1) SA 212
(SCA) para 39, the object of pleadings is ‘. . . to
delineate the issues to enable the other party to know what case has
to be
met’. For this reason, Uniform rule 18(4) requires every
pleading to contain a clear statement of the material facts upon
which
the pleader relies for his claim, with sufficient particularly
to enable the opposite party to reply thereto.
[29]
In my view, the mere averment in the claim in reconvention that
‘POC1’ lacks the SCM proposal, is not a clear
statement of
material fact. The averment does not invite any admission or denial
from the plaintiff, hence the plaintiff noted that
‘POC1’ in its
claim in convention lacks the SCM proposal.
[30]
The defendant had the opportunity to deal with the lack of the SCM
proposal in its plea to the plaintiff’s particulars
of claim in
convention, but failed to do so. Therefore, the defendant cannot cure
the defect in its plea in convention, in the counterclaim.
[31]
Though the plaintiff’s claim in convention and the defendant’s
claim in reconvention arise from the transaction
concluded by virtue
of the same contract between the parties, the two claims remain two
separate actions with distinct sets of pleadings.
Thus, the exception
based on this ground should be dismissed.
Lack of particularity in the plaintiff’s plea to
the counterclaim
[32]   I now turn to the second group of
grounds of exception. These grounds relate to lack of particularity:
(a)     In paragraph 4 of its
exception, the defendant requires the plaintiff to indicate which
invoices were
not paid or to produce those invoices.
(b)     In paragraph 5, the
defendant requires the plaintiff to produce those invoices in respect
of which it
is alleged that the defendant has not made payment.
(c)     In paragraph 6, the
defendant refers to paragraph 14 of the plaintiff’s plea in
reconvention, where
the plaintiff pleaded that it duly performed its
obligations in terms of the agreement. The defendant submits that
since the agreement
required that monthly reports be submitted as
proof of work done, the plaintiff is required to refer to or attach
these reports.
(d)     In paragraph 7, the
defendant refers to paragraph 14 of the plaintiff’s plea in which
the plaintiff
pleaded that the defendant breached the terms of the
agreement by failing to effect payment to the plaintiff in respect of
each tax
invoice rendered. The respondent requires the plaintiff to
state exactly what amount it received in that period as payment for
services
rendered.
(e)     In paragraph 8, the
defendant further requires the plaintiff to include copies of those
invoices in respect
of which the defendant did not make payment.
(f)      In paragraph 9, the
defendant refers to paragraph 19 of the plaintiff’s plea in which
the plaintiff
denied the allegation in paragraph 16 of the claim in
reconvention that, on 3 August 2018, the defendant made payment to
the plaintiff
in the amount of R109 250. The defendant requires
information whether the denial indicated that nothing was paid by the
defendant
to the plaintiff in this period.
(g)
In paragraph 10, the defendant refers to paragraph 20 of the
plaintiff’s plea in which the plaintiff
admitted payment by the
defendant in the amount of R211 718.46 on 23 March 2018, but alleged
that this payment did not cover each
and every tax invoice rendered
by the plaintiff during this period. The defendant requires the
plaintiff to indicate which invoices
were paid and which were not
paid.
[33]
In summing up this group of grounds of exception, it is apparent that
in paragraphs 4, 5, 8 and 10, the defendant
requires the plaintiff to
produce invoices to support its defence. In paragraph 6, the
defendant requires the plaintiff to produce
monthly reports as proof
for work done by the plaintiff, in paragraph 7 it requires
information on specific amounts received in that
month, and in
paragraph 9 it requires clarity whether the denial by the plaintiff
means that the defendant did not make payment at
all.
[34]
It is not contended that the contested paragraphs in the plaintiff’s
plea do not disclose a defence at all, but
it is contended that these
paragraphs are vague and embarrassing. It appears to me that the
requested information is not necessary
for the defendant to plead
further to the plaintiff’s plea in reconvention. The facts stated
by the plaintiff in its plea in reconvention
are clear and set forth
the grounds upon which the defendant’s claim is resisted. If the
defendant needs further clarity or particularity,
it is entitled to
request this information after the close of pleadings in terms of
Uniform rule 21(2) or may require the plaintiff
to declare these
documents in terms of Uniform rule 35.
[35]
The issue of the ‘monthly reports as proof that work was done’,
was introduced by the defendant for the first
time in paragraph 6 of
its exception. It was never pleaded in the defendant’s counterclaim
nor in the plaintiff’s plea to the
claim in reconvention. It is
strange that the defendant wanted the plaintiff to produce monthly
reports that were not in the parties’
pleadings and even excepted
to the plaintiff’s plea for failing to list those monthly reports
which were not pleaded in the pleadings.
Conclusion
[36]   The defendant has a duty to persuade
the court that the plaintiff’s plea is vague and embarrassing. The
defendant
has not shown that the plaintiff’s plea is vague,
confusing or meaningless or that the plea is lacking in
particularity, and therefore
vague to such an extent that the
defendant is embarrassed and prejudiced thereby.
Order
[37]   Accordingly, the defendant’s
exception is dismissed with costs.
MATHENJWA
AJ
DATE OF HEARING     :
13 April 2021
DATE OF JUDGMENT  :
30 April 2021
FOR
THE APPLICANT :         W J
Pietersen
Instructed by Mason Incorporated
FOR
THE RESPONDENT:      S Moodley
Instructed by Lalparsad Inc
c/o Carlos Miranda Attorney