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[2021] ZAECELLC 5
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Legent Motors (Pty) Ltd v Oakhurst Insurance Company Ltd (EL33/2020) [2021] ZAECELLC 5 (23 March 2021)
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON
CIRCUIT LOCAL DIVISION)
CASE
NO: EL33/2020
Date
heard: 11/03/2021
Date
delivered: 23/03/2021
In the matter
between
LEGEND
MOTORS
(Pty) Ltd
Plaintiff
and
OAKHURST
INSURANCE COMPANY LTD
Defendant
JUDGMENT
SMITH J:
[1]
The
plaintiff has filed an exception to the defendant’s plea on the
grounds that it is vague and embarrassing and does not
disclose a
defence. It has previously filed two other exceptions to the plea,
and on each of those occasions the defendant has
amended its plea to
address the criticisms. On this occasion, however, the defendant has
decided to batten down the hatches and
defend its plea.
[2]
The
plaintiff contends that the plea, when read in its totality, contains
averments which are confusing, meaningless or contradictory,
and in
some instances do not raise a proper defence to its claim. It
contends, in particular, that the special plea raised by the
defendant in respect of the court’s jurisdiction, is vague and
embarrassing and contradicts other averments contained in
the plea.
In this regard it contends that the objection to the court’s
jurisdiction is based on the acceptance that a binding
contract had
been entered into between the parties, while in other parts of the
plea this averment has been denied.
[3]
The
plaintiff also asserts that the special plea raised in respect of its
locus
standi
does not disclose a defence and contradicts other averments contained
elsewhere in the plea. These averments have not been pleaded
in the
alternative and the plea is accordingly rendered vague and
embarrassing. In this regard also the plaintiff contends that
the
assertion that it lacks
locus
standi
is incompatible with the defendant’s acceptance elsewhere in
the plea that a valid contract of insurance had been concluded
between the parties.
[4]
In
addition, the plaintiff contends that;
(a)
some
allegations in the plea are contradictory to each other and have not
been pleaded in the alternative;
(b)
some
allegations are vague and embarrassing, do not support the contents
of the plea and does not justify the conclusions sought
to be drawn
from them;
(c)
the
defendant seeks to rely on documents annexed to its plea which either
contradict the contents of the plea, or do not support
some of the
assertions contained therein;
(d)
the
defendant alleges that it (the plaintiff) may have been dishonest in
claiming from it in terms of the agreement, but provides
no
particulars on which this averment is based. This criticism
apparently refers to the defendant’s averment that the
plaintiff
did not have an insurable interest in the insured vehicle;
and
(e)
the
special pleas in respect of jurisdiction and
locus
standi
contradict each other in that in the jurisdiction plea the defendant
pleads that it entered into an agreement with Monolite CC,
while in
the
locus
standi
special plea it appears to aver that it did not conclude an agreement
with the plaintiff. These averments are not pleaded in the
alternative and accordingly render the plea vague and embarrassing.
[5]
I
must say at the outset that on my first reading of the defendant’s
plea, I was able to discern its pleaded defences without
any
difficulty whatsoever. In contradistinction, the plaintiff’s
notice of exception made for difficult reading. My attempt
to
summarise the contents of the exception in a coherent and concise
manner above, belies the fact it is unnecessarily prolix and
drafted
in a ponderous style that makes it difficult to discern the grounds
relied upon.
[6]
In
order to demonstrate that the abovementioned criticisms are not
unjustified, it is perhaps necessary for me to put the pleadings
in
their proper context.
[7]
The
plaintiff, who is described in the particulars of claim as Legend
Motors (Pty) Ltd, issued summons against the defendant, a
registered
Financial Service Provider who carries on the business of a
registered insurance company, for damages pursuant to a
contract of
insurance allegedly entered into between the parties in East London
on 5 December 2018. It is perhaps necessary also
to mention that in
the Schedule of Insurance, which is annexed to the particulars of
claim, the insured is stated to be “Legend
Motors t/a Monolite
CC”.
[8]
The
plaintiff contends that in terms of the aforesaid contract of
insurance the defendant undertook to insure comprehensively the
plaintiff’s motor vehicle, which is described a Volkswagen Golf
V2 2.0 TSI. The insurance cover included the risk of loss
or damage
to the vehicle because of fire.
[9]
It
avers that on the 22
nd
of February 2019, and in East London, the vehicle spontaneously
caught fire, resulting in it being damaged beyond repair. The value
of the vehicle, calculated on the basis provided for in the schedule
to the insurance agreement, was stated to be R647 800.
[10]
After
the plaintiff had duly notified the defendant of the incident and
submitted its claim in accordance with the agreement, the
defendant
repudiated the claim.
[11]
The
plaintiff accordingly seeks an order compelling the defendant to
comply with the terms of the insurance agreement by making
payment
for the full insured value of its vehicle, and ancillary relief.
[12]
The
defendant raised two special pleas, namely that the court does not
jurisdiction to hear the matter and that the plaintiff lacks
the
necessary
locus
standi
to institute the claim.
[13]
In
respect of the jurisdiction plea the plaintiff takes the point that
the defendant is situated in George, Western Cape, and the
underwriting managers, who entered into the agreement with Monolite
CC on behalf of the defendant, is situated in Johannesburg.
It
accordingly pleads that the insurance contract, which was annexed as
Annexure “A” to the particulars of claim, was
not entered
into within the jurisdictional area of this court. It avers
furthermore that the plaintiff also did not lodge its claim
within
the jurisdiction of this court and neither did the defendant’s
repudiation of the claim occur within the court’s
jurisdiction.
It asserts that there is accordingly no valid basis upon which this
court has the necessary jurisdiction to entertain
the action.
[14]
In
respect of the plaintiff’s
locus
standi
,
the defendant avers that the former is cited in the summons as Legend
Motors (Pty) Ltd, with registration number 2017\237140\07,
while in
the Schedule of Insurance, which is Annexure A to the particulars of
claim, the insured is described as “Legend
Motors t/a Monolite
CC”. Monolite CC is a registered close corporation with
registration number 2009\086589\23, with the
only active member being
one Lauren Odendaal.
[15]
The
defendant accordingly asserts that the plaintiff was not the insured
in terms of the insurance agreement and therefore did not
have the
required
locus
standi
to institute and pursue a claim against it based on the terms of
insurance agreement.
[16]
In
its plea-over the defendant furthermore avers that;
(a)
the
insured vehicle is not the plaintiff’s property and it
accordingly does not have an insurable interest as required in
terms
of the general conditions of contract. The defendant, however,
clarifies that this averment is proffered in the event that
the court
finds that the insurance agreement was concluded with the plaintiff,
as opposed to with Monolite CC; and
(b)
in
the event of the court finding that the plaintiff was indeed the
insured party in terms of the agreement, the defendant pleads
that
the plaintiff breached certain conditions of the contract by,
inter
alia
,
overstating the claim.
[17]
It
is trite that in order to succeed with an exception based on the
ground that a pleading does not disclose a defence, the excipient
must persuade the court that on every reasonable interpretation, the
plea does not disclose a defence to the plaintiff’s
claim. In
other words, that no admissible evidence led on the pleadings as they
stand, can establish a defence.
[18]
And
where an exception is taken on the ground that a pleading is vague
and embarrassing, the court must first determine whether
the pleading
lacks particularity to the extent that, on a reasonable
interpretation, the other party would be unable to distil
from it a
clear single meaning. This is, however, not the end of the enquiry.
Once the court finds that the pleading is vague and
embarrassing in
this sense, it must determine whether the excipient has shown that it
will suffer serious prejudice if the offending
allegations are not
removed. (
Francis
v Sharp and Others
2004 (3) SA 230
(CPD), at 240F-G).
[19]
In
my view, it is clear on a proper reading of the defendant’s
plea that it denies that an agreement was concluded with the
plaintiff and pleads certain further defences in the event that the
court find that the agreement had in fact been entered into
between
the parties.
[20]
The
objection to the court’s jurisdiction raised by way of special
plea, is based on concise averments which are clearly set
out in the
plea. These relate in particular to where the plaintiff, the
underwriting managers, and the defendant are situated;
where the
agreement was concluded; where the claim was lodged; and the
repudiation occurred.
[21]
In
my view these averments were set out concisely and unambiguously and
on a reasonable construction thereof, there can be little
doubt as to
the grounds on which the court’s jurisdiction is challenged.
[22]
The
same goes for the plea in respect of the plaintiff’s
locus
standi
.
That special plea also sets out in a crisp and unequivocal manner
that the defendant avers that Monolite CC, and not the plaintiff,
is
the insured in terms of the agreement. In amplification of this
assertion defendant makes reference to Annexure “A”
to
the particulars of claim which, at least in its view, bears out this
inference.
[23]
In
my view the
facta
probanda
pleaded in support of this special plea do not contradict any of the
further averments contained in the plea. Any possible doubt
in this
regard has been avoided by the defendant’s unambiguous
qualification that the other defences are raised only in the
event of
the court finding that the plaintiff is indeed the owner of the
vehicle and thus the insured. The factual grounds for
the assertions
contained in this special plea are also unambiguous and brook no
other interpretation.
[24]
The
averment that the plaintiff had no insurable interest in the vehicle
was also clearly stated to be on the ground that it was
not the owner
of the vehicle, that it thus did not suffer any losses and
consequently has no claim in terms of the insurance contract.
On a
proper reading of this averment as well, the plaintiff contends that
the defendant has no insurable interest in the vehicle
based on its
denial that the plaintiff was the owner of the vehicle.
[25]
Mr
Kotzé
,
who appeared for the defendant, has also correctly argued that it
appears that the perceived ambiguity and vagueness of which
the
plaintiff complains, are based on its own insupportable inferences.
Furthermore, they appear to be predicated on the erroneous
assumption
that where the assertions contained in the plea are at odds with its
own averments contained in the particulars of claim
or supporting
documents, the plea is therefore rendered vague and embarrassing.
[26]
It
must have been abundantly clear from the aforementioned that there is
no basis whatsoever for the contention that the plea does
not
disclose a defence. I am also of the view that the argument that the
averments contained in the plea are so contradictory or
vague that
the plaintiff is left guessing as to the true meaning thereof or the
defences on which the plaintiff rely, is also untenable.
As I have
mentioned above, the defendant has set out various defences in
concise, clear and unambiguous terms, which if proved
at a trial in
due course, will constitute proper defences to the plaintiff’s
claim. In the result the exception falls to
be dismissed.
[27]
Insofar
as the question of costs is concerned, Mr
Kotzé
has submitted that this is an appropriate case where the court should
order punitive costs, namely on the attorney and client scale.
This
assertion was based on the fact that the plaintiff had on two
previous occasions raised exceptions to the defendant’s
plea
and has presumably abused the court processes. I am, however, of the
view that there are no grounds for such a punitive costs
order. The
plaintiff was entitled to file exceptions to the pleas, and it was up
to the defendant to decide whether or not to oppose
them. The fact
that those exceptions were not opposed, compels the inference that
they had some merit. Costs must accordingly be
awarded on the usual
scale.
[28]
In
the result the following order issues:
(a)
The
plaintiff’s notice of exception is hereby dismissed, with
costs.
_________________________
J.E. SMITH
JUDGE OF THE
HIGH COURT
Appearing on behalf of the
Plaintiff:
Adv. B.C. Tarr
Instructed
by:
Butlers Attorneys
15 Roslin Road
Stirling
East London
Appearing on behalf of the
Defendant:
Adv. C.D.Kotzé
Instructed by:
Drake Flemmer & Orsmond
Quenera Park
Beacon Bay
East
London