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[2021] ZAKZPHC 26
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Zondi and Another v Sandile Dlomo Family Trust and Others (7153/2020P) [2021] ZAKZPHC 26 (12 May 2021)
IN THE HIGH
COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Not Reportable
Case No: 7153/2020P
In the matter
between:
SBONELO
MAXICAN ZONDI
FIRST PLAINTIFF/ RESPONDENT
SBONELO MAXICAN ZONDI N.O. SECOND
PLAINTIFF/ RESPONDENT
And
SANDILE
DLOMO FAMILY TRUST FIRST DEFENDANT/EXCIPIENT
SANIDLE
DLOMO
SECOND DEFENDANT/EXCIPIENT
PAULINE
BUSISIWE MSIBI
THIRD DEFENDANT
RUTH
MAVUNDLA
FOURTH DEFENDANT
REGISTRAR
OF DEEDS,
PIETERMARITZBURG
FIFTH DEFENDANT
ORDER
The
defendants’ exception is dismissed with costs.
JUDGMENT
Mathenjwa AJ
Introduction
[1]
The respondents, who are the plaintiffs in the main action (the first
and second plaintiff will collectively
be referred to as ‘the
plaintiff’ in this judgment), instituted an action against the
first to fifth defendants in
the main action, in which they seek a
declaration that the sale and transfer of the property, known as Erf
895, Gamalakhe A (‘the
house’), by the third defendant to
the first defendant is unlawful and is set aside, or alternatively,
that the first and
second defendants, who are the excipients in this
matter, be ordered to compensate the plaintiff an amount of R269
039.06.
[2]
In his particulars of claim, the plaintiff alleges that his late
mother, Ms Muntuza Zondi, concluded
a written agreement with the
fourth defendant for the purchase of the house. She allegedly paid
the fourth defendant an amount
of R12 000 as purchase price for the
house. However, the plaintiff’s mother passed away before the
house was transferred
into her name.
[3]
After the plaintiff was appointed as the executer of his late
mother’s estate, he discovered that
the fourth defendant, who
had sold the house to his mother, had purchased the house from Mr
Jabulani Petros Msibi (‘Mr Msibi’)
and the third
defendant. However, the house was never transferred to the fourth
defendant. It is still registered in the name of
Mr Msibi and the
third defendant.
[4]
Subsequently, the plaintiff concluded a written agreement of sale
with Mr Msibi and the third defendant,
in terms of which the parties
agreed that the house would be transferred from Mr Msibi and the
third defendant to the plaintiff.
The agreement was titled ‘agreement
of sale entered into by and between Jabulani Petros Msibi and Pauline
Busisiwe Msibi
[third defendant] and Sbonelo Maxican Zondi [first
plaintiff]’. The agreement was annexed to the particulars of
claim as
annexure ‘SMZ2’. Mr Msibi however passed away
prior to transfer of the house to the plaintiff.
[5]
The plaintiff alleged that the house was later fraudulently, and as a
result of misrepresentation, transferred
to the first defendant.
[6]
In response to the plaintiff’s summons, the first and second
defendants entered an appearance
to defend, and later took an
exception to the plaintiff’s particulars of claim.
Grounds of
exception
[7]
I now turn to the defendants’ grounds of exception, which are:
(a)
The plaintiff alleges that his late mother and the fourth defendant
concluded a written agreement for
the sale of the house in terms of
which the plaintiff’s mother paid a purchase price of R12 000
to the fourth defendant.
However, the plaintiff failed to annex the
written agreement to the particulars of claim, contrary to the
provisions of Uniform
rule 18(6) which provides:
‘
A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral, and when, where and by whom
it was
concluded, and if the contract is written a true copy thereof or of
the part relied on in the pleading shall be annexed
to the pleading.
’
(b)
At paragraph 11 of the particulars of claim, the plaintiff alleges
that it discovered that the fourth
defendant purchased the house from
Mr Msibi and the third defendant, but the house was never transferred
and registered into the
name of the fourth defendant. This sale
agreement or details regarding such sale were also not attached to
the particulars of claim.
[8]
Based on these reasons, the excipients alleged that the plaintiff’s
particulars of claim do not
comply with Uniform rule 18(6) and
therefore lack the necessary averments to sustain a cause of action.
[9]
It appears from the particulars of claim that the house has been sold
in terms of three different contracts
to three different persons. The
first agreement relates to the sale of the house by the fourth
defendant to the plaintiff’s
late mother. The second agreement
of sale relates to transfer of the house from the third defendant to
the first defendant, and
the third agreement relates to sale of the
house by the third defendant to the plaintiff. Only the third
agreement was annexed
to the plaintiff’s particulars of claim.
The first and second agreements were not annexed to the plaintiff’s
particulars
of claim.
[10]
The issues for determination are, firstly, whether the omission by
the plaintiff to annex the first and second
agreements to the
particulars of claim amounts to a failure to comply with Uniform rule
18(6). Secondly, whether such omission
renders the particulars of
claim excipiable on the grounds of lacking the averments necessary to
sustain a cause of action.
[11]
Ms Shaqani, for the excipients, argued that the failure by the
plaintiff to annex the first and second agreements
to the particulars
of claim amounts to a failure to comply with Uniform rule 18(6). This
should be the case, she argued, because
the claim of the plaintiff is
based on the existence of the first agreement between the plaintiff’s
late mother and the fourth
defendant. She further referred to
section
2(1)
of the
Alienation of Land Act 68 of 1981
which prohibits the
alienation of land if it is not contained in a deed of alienation
signed by the parties thereto. However, Ms
Shaqani did not indicate
how the second agreement relates to the plaintiff’s cause of
action.
[12]
Mr Lukhele, appearing for the plaintiff, argued that, firstly, the
mere fact that an agreement is not annexed to
the pleadings does not
necessarily amount to a failure to comply with Uniform
rule 18(6).
Secondly, even where the omission to annex an agreement to the
pleadings would amount to a failure to comply with Uniform
rule
18(6)
, it does not necessarily follow that such omission would render
the pleading excipiable in terms of Uniform
rule 23
on the ground
that it lacks averments necessary to sustain the cause of action.
The
applicable legal framework
[13]
Uniform
Rule 18(6)
does not require that all agreements mentioned in
the pleading should be annexed, but only that contract which is
relied upon.
[14]
Uniform
rule 18(12)
provides that:
‘
If
a party fails to comply with any of the provisions of this rule, such
pleading shall be deemed to be an irregular step and the
opposite
party shall be entitled to act in accordance with
rule 30.
’
Uniform
rule
30
in turn entitles a party to a cause in which an irregular step has
been taken by another party, to apply to court to set it aside.
[15]
It was held in
Sasol Industries
(Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a L
H Marthinusen
1992 (4) SA 466
(W) at 469H
that if a pleading both fails to comply with Uniform
rule 18
, and is
vague and embarrassing, the opposite party has a choice to raise an
exception in terms of Uniform
rule 23.
Uniform
rule 23(1)
provides
that
:
‘
Where
any pleading is vague and embarrassing, or lacks averments which are
necessary to sustain an action or defence, as the case
may be, the
opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception thereto. . .’.
[16]
Therefore, a party faced with a pleading which does not only fail to
comply with Uniform
rule 18(6)
, but also lacks the averments to
sustain a cause of action, has a choice to give the other party a
notice to remedy the irregularity
in terms of Uniform
rule 30
or to
take an exception to the pleading in terms of Uniform
rule 23.
[17]
The omission to annex an agreement to the pleading would only offend
Uniform
rule 18(6)
if the party relied on such agreement. In
explaining the meaning of the phrase ‘relying on a contract’,
Swain J in
Moosa and others NNO v Hassam and others NNO
2010
(2) SA 410
(KZP) para 17 held that:
‘. . . A party
clearly “relies upon a contract” when he uses it as a
“link in the chain of his cause of
action”.’
[18]
An excipient who alleges that a pleading does not disclose a cause of
action, must establish that ‘. . .
in all its possible meanings
no cause of action is disclosed’. (See
Amalgamated Footwear
& Leather Industries v Jordan & Co Ltd
1948 (2) SA 891
(C) at 893). Elaborating on the duty of the excipient to satisfy the
court that the pleading does not disclose a cause of action,
Erasmus
J in
Francis v Sharp and others
2004 (3) SA 230
(C) at 237D
cited with approval the statement of Benjamin J in
Colonial
Industries Ltd v Provincial Insurance Co Ltd
1920 CPD 627
at 630
where it was held that:
‘. . .
save
in the instance where an exception is taken for the purpose of
raising a substantive question of law which may have the effect
of
settling the dispute between the parties, an excipient should make
out a very clear, strong case before he should be allowed
to
succeed
.’
[19]
When determining whether the pleadings disclose a cause of action,
the pleadings should be read as a whole, and
paragraphs should not be
read in isolation. (See
Jowell v Bramwell-Jones and others
1998 (1) SA 836
(W) at 902J). Harms JA in
Telematrix (Pty) Ltd t/a
Matrix Vehicle Tracking v Advertising Standards Authority SA
2006
(1) SA 461
(SCA) para 3 warned against an over technical approach
when considering exceptions and pointed out that ‘exceptions
should
be dealt with sensibly’. The need to approach exceptions
sensibly is necessitated by the effect which the upholding of an
exception to a pleading has. The effect of an exception based on the
ground that the pleadings do not disclose a cause of action
was
explained by Grosskopf JA in
Trope and others v South African
Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 270F-G where it was held
that:
‘Where an exception
is granted on the ground that a plaintiff's particulars of claim fail
to disclose a cause of action, the
order is fatal to the claim
as
pleaded
and therefore final in its effect.’
[20]
There has been a difference of opinion between the various divisions
of the High Court on the effect of the failure
by a party to annex a
written contract relied upon to the pleadings. In
Moosa and others
NNO v Hassam and others NNO
2010 (2) SA 410
(KZP) para 18, Swain
J held that:
‘. . .
In
order for the respondents' cause of action to be properly pleaded, it
is necessary for the written agreement relied upon to be
annexed to
the particulars of claim. In the absence of the written agreement the
basis of the respondents' cause of action does
not appear
ex
facie
the pleadings.’
[21]
Rogers J in
Absa Bank Ltd v Zalvest Twenty (Pty) Ltd and another
2014 (2) SA 119
(WCC) disagreed with the principle laid down in
Moosa
supra
, that in the absence of the written agreement the cause of
action does not appear
ex facie
to the pleadings. At para 21,
Rogers J held that:
‘. . . I also, with
respect, disagree with the learned judge's proposition that '(i)n the
absence of the written agreement
the basis of the [plaintiffs'] cause
of action does not appear ex facie the pleadings' (para 18). If a
plaintiff pleads the conclusion
of a written contract and the terms
relevant to his cause of action, the cause of action will appear ex
facie the particulars of
claim. . .’.
Application
of the law to the facts
[22]
When considering the plaintiff’s particulars of claim as a
whole, it appears that the first contract pertaining
to the sale of
the house situated at Erf 895, Gamalakhe A, between the fourth
defendant and the plaintiff’s late mother resulted
in the
conclusion of the third contract for the sale of the house between
the plaintiff and the third defendant, who was the holder
of the
title deed of the house. It further appears that the second agreement
pertaining to the alleged fraudulent transfer of the
house from the
third defendant to the first defendant resulted in the plaintiff
instituting the main action for declaring the sale
and transfer of
the house from the third defendant to the first defendant to be
unlawful and to be set aside.
[23]
The third contract is for the sale and transfer of the house by the
third defendant, who was then the holder of
the deed in respect of
the house, to the plaintiff. The contract provides that the amount of
R12 000, which is the purchase price
for the property, was paid
directly to the sellers. The third contract does not refer to the
first contract nor to the sale of
the house between the plaintiff’s
late mother and the fourth defendant. The third contract is duly
signed by the plaintiff
and the third defendant, who was the holder
of the title deed in respect of the house before it was transferred
to the first defendant.
[24]
Ms Shaqani for the excipients argued that the first and second
contracts are linked to the plaintiff’s cause
of action,
therefore, by failing to annex those contracts to the pleadings, the
plaintiff’s particulars of claim lack the
averments necessary
to sustain a cause of action. Accordingly, it is argued, the
plaintiff’s particulars of claim should
be set aside. In
support of this proposition, she relied on the principle in
Moosa
supra
, that in the absence of the written agreement relied upon,
the cause of action does not appear
ex facie
in the pleadings.
[25]
I agree with Ms Shaqani that all three agreements relating to the
sale of the house are linked to the plaintiff’s
cause of
action. Furthermore, I accept that the reasoning of Swain J in
Moosa
supra
, a single judge of this division, is more persuasive to
this court than that of a single judge from another division.
[26]
However, I am of the view that
Moosa supra
is distinguishable
from this case. In
Moosa
, the applicant had served a notice
upon the plaintiff in terms of Uniform
rule 30(2)
(b)
complaining of the plaintiff’s failure to attach the written
agreement relied upon. The plaintiff had pleaded in its particulars
of claim that it was not in possession of a signed copy of the
agreement. After the plaintiff had failed to remedy the alleged
irregular step, the applicant sought an order setting aside the
plaintiff’s particulars of claim as an irregular proceeding
in
terms of Uniform
rule 30.
It was not in contention that the plaintiff
relied upon that contract which was not attached to pleadings in
Moosa
.
[27]
In the present case, the plaintiff pleaded three different agreements
pertaining to the sale of the house in his
particulars of claim. Only
one of these agreements which is allegedly relied upon by the
plaintiff was attached to the particulars
of claim. The excipients
did not invoke Uniform
rule 30
, calling upon the plaintiff to remedy
the alleged irregularity relating to its failure to annex the written
agreements in respect
of the first and second agreements.
[28]
Although all three agreements are linked to the cause of action,
there is only one cause of action that arises
from the alleged
fraudulent transfer of the house from the third defendant to the
first defendant while there is an existing contract
for the sale and
transfer of the house by the third defendant to the plaintiff. The
plaintiff has annexed this contract which it
relied upon in its
pleading.
[29]
In my view, a party cannot rely upon a contract if such contract is
not linked to the chain of his cause of action.
However, in instances
where there are two or more agreements pleaded in the pleadings, a
party may not necessarily rely upon all
those contracts, but may rely
and use one of those contracts as a link in the chain of cause of
action.
[30]
In the present case, the first and second contracts provide
background information leading to the conclusion of
the third
contract. It is the breach of the third contract that resulted in the
plaintiff launching the main action. Therefore,
I accept the version
of the plaintiff that it relied upon the third contract which is
attached to the pleadings. Thus the omission
to annex the first and
second contracts does not offend the provisions of Uniform
rule
18(6).
[31]
The excipients did not allege any other basis upon which the
plaintiff’s particulars of claim could lack
averments necessary
to sustain a cause of action, other than the lack of the first and
second contracts as annexures to the particulars
of claim. As I have
found that the omission to annex the first and second contracts to
the particulars of claim does not offend
Uniform
rule 18(6)
, it
follows that the exception, which is solely based on the
non-compliance with
rule 18(6)
, should fail.
[32]
In the event that my finding is wrong that the omission to annex the
first and second contracts to the particulars
of claim in this case
does not constitute failure to comply with rule Uniform 18(6), I will
further determine whether such failure
to comply would render the
plaintiff’s particulars of claim excipiable on the grounds that
it lacks averments necessary to
sustain the cause of action.
[33]
The plaintiff avers in his particulars of claim that in the first
contract, his late mother concluded a written
agreement with the
fourth defendant for the sale of the house. The plaintiff’s
mother passed away before the house was transferred
to her. The
fourth defendant, who sold the house to the plaintiff’s mother,
had purchased the house from the third defendant,
but the house was
still registered in the name of the third defendant at the time when
it was sold to the plaintiff’s late
mother.
[34]
In the third contract, the plaintiff and the third defendant
concluded a contract for the sale and transfer of
the house from the
third defendant to the plaintiff. In the second agreement between the
third defendant and the first defendant,
the house was allegedly
transferred to the first defendant while the third agreement of sale
and transfer of the house by the third
defendant to the plaintiff was
still in existence.
[35]
When considering the particulars of claim as a whole, I am satisfied
that it does not lack averments necessary
to sustain the cause of
action. In case the excipients believed that the omission by the
plaintiff to annex the first and second
contracts to his particulars
of claim constituted non-compliance with Uniform
rule 18(6)
, they had
an option to call upon the plaintiff to remedy such irregularity in
terms of Uniform
rule 30
, alternatively the excipients could have
served a notice to the plaintiff to produce those contracts for their
inspection in terms
of Uniform
rule 35(12).
[36]
The excipients have a duty to satisfy the court that the pleadings
are excipiable. See
Picbel Groep Voorsorgfonds (in liquidation) v
Somerville, and related matters
2013 (5) SA 496
(SCA) para 7. The
excipients have failed to make out a clear case that the plaintiff’s
particulars of claim are excipiable.
[37]
I now turn to the issue of costs. Mr Lukhele for the plaintiff argued
that the court should award costs
de bonis propriis
based on
the alleged persistence of the defendants’ attorney with
dilatory tactics or smart points. It is noted that, although
the
defendants refer to their application to strike out, there was no
such application on the papers.
[38]
I accept that in their prayer, the defendants proposed that:
(a)
the exception be upheld with costs, and
(b)
the particulars of plaintiff’s claim be struck out.
[39]
Although the prayer for the particulars of claim to be struck out may
not be appropriate, it is quite clear from
the pleadings that the
exception was based on Uniform
rule 23(1)
not
rule 23(2)
, which
provides for striking out of scandalous, vexation, or irrelevant
averments in the pleading. I cannot find any special circumstances
which justify an order of
de bonis propriis
.
Order
[40]
Having made the finding that the excipients have failed to satisfy
the court that the plaintiff’s particulars
of claim are
excipiable, I make the following order:
The
defendants’ exception is dismissed with costs.
MATHENJWA AJ
DATE OF
HEARING :
20 April 2021
DATE OF
JUDGMENT : 12 May 2021
FOR THE
PLAINTIFF:
B Lukhele
Instructed by Diale Mogashoa Attorneys
Locally represented by J Leslie & Co
FOR THE
DEFENDANT: T Qashani
Instructed by Stowell & Co