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[2020] ZALMPPHC 49
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Grit Blasting Africa (Pty) Ltd v Tarman Holdings (Pty) Ltd (1551/2019) [2020] ZALMPPHC 49 (7 July 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
Case No: 1551/2019
In
the matter between
GRIT
BLASTING AFRICA (PTY) LTD PLAINTIFF
AND
TARMAN
HOLDINGS (PTY) LTD
DEFENDANT
JUDGMENT
KGANYAGO
J.
[1]
The plaintiff has instituted an action against the defendant claiming
an amount of R1 202 548-63. The
plaintiff’s claim is based on a
written agreement which was entered into between the plaintiff and
the defendant on 29
th
January 2018. The agreement was for
the construction of a road storm water system. The plaintiff avers
that during the cause of
the term of the agreement, the defendant
extended the scope of the work by instructing the plaintiff to do
additional construction
work to the main agreement. In turn the
defendant was pay the plaintiff for such work on delivery of the
invoice.
[2]
According to the plaintiff it has duly fulfilled all its obligations
in terms of the main agreement
and as well as the variation order. As
per the plaintiff’s particulars of claim, the last invoice
which it has submitted
amounted to R1 782 685-23. Out of that amount
of the last invoice, the plaintiff issued a credit note of
R580 136-60 in favour
of the defendant which reduced the
indebtness of the defendant to R1 202 548.63. The plaintiff alleges
that the defendant has failed
alternatively refused to pay this
amount. That resulted in the plaintiff instituting an action against
the defendant.
[3]
The defendant defended the plaintiff’s action. The defendant
has raised an exception in terms
of Rule 23(1) of the Uniform Rules
of Court (the Rules) in terms of which it complains that the
plaintiff’s particulars of
claim are vague and embarrassing and
it cannot plead, alternatively the particulars of claim does not
disclose a cause of action.
The defendant’s exception is based
on two grounds.
[4]
The defendant’s two grounds of complaints upon which the
exception is based read as follows:
“
3.
In terms of paragraph 7 of the plaintiff’s particulars of
claim, the plaintiff avers that the defendant furnished the plaintiff
with written instructions to undertake additional work and in support
of this allegation, the plaintiff attaches an e-mail and
bill of
quantity as annexure “NB7”, to its particulars of claim.
FIRST
GROUND
4.
In light of the plaintiff’s acknowledgment of the terms of the
agreement has failed to set out the terms contained in clause
10 of
the agreement with sufficient particularity in respect of:
4.1 who acted on behalf for the
defendant in giving instructions?
4.2 What the scope of the additional
work was, to be undertaken on behalf of the defendant;
4.3 What the time for the execution of
the additional work was;
4.4 What the agreed costs for the
additional work was
4.5
How and when the variation, adjustment or addition was incorporated
into the agreement.
SECOND
GROUND
5.
In respect of the email attached to the plaintiff’s particulars
of claim as annexure “NB7”, the plaintiff has
failed to
set out with sufficient particularity in the following aspects:
5.1 What scope of the additional work
was, to be undertaken on behalf of the defendant?
5.2 What the time for the execution of
the additional work was;
5.3 What the agreed costs of the
additional work was.”
[5]
The defendant has submitted that it is imperative for a litigant to
plead in such a manner that the
opposing party knows what case it has
to meet. The defendant further submitted that although the plaintiff
relies on a written
contract for the alleged indebtness of the
defendant, there is no single allegation in the particulars of claim
with regards to
the parties’ compliance with the agreement in
respect of the conclusion of a valid variation order. It is the
defendant’s
contention that the lack of particulars as stated
in their exception are not only required in order for it to plead on
the merits,
but are also of material interest in respect of a
possible joining of the Road Agency Limpopo Soc Ltd as a party to
this action.
[6]
The plaintiff has argued that Kobus van Zyl is the one who had sent
the email marked “NB7”
and therefore has acted on behalf
of the defendant. With regard to the scope of work the plaintiff has
submitted that the work
has been clearly set out in the form detailed
bill of quantities. Regarding the time for the execution of the
additional work,
the plaintiff has argued that in paragraph 6.7 of
its particulars of claim it clearly state the time frames of the
contract being
that the work would commence on 29
th
of
January 2018 and would conclude on 10
th
of April 2018.
Regarding agreed costs for additional work, it is the plaintiff’s
contention that the information is included
in the bill of quantities
with regard to how and when the variation, adjustment or addition was
incorporated into the agreement.
The plaintiff further submitted that
it is clear from annexure NB7 that the date and time has been
captured as Thursday, March
22,2018 08:54 PM which instruction
originate from the email sent by Kobus van Zyl.
[7]
Rule 18(4) of the Rules read as follows:
“
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.
[8]
An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action
and not its legal validity (See
Trope
and Others v South African Reserve Bank
[1]
).
A court will not uphold an exception on the ground that it is vague
and embarrassing and set aside the summons unless the exception
goes
to the root of the action. (See
SA
Motor Industry Employers’ Association v SA bank of Athens
[2]
).
[9]
In order to succeed, an excipient has a duty to persuade the court
that upon every interpretation which
the pleading in question can
reasonably bear, no cause of action is disclosed, failing which the
exception ought not to be upheld.
[10]
In
Living Hands v Ditz
[3]
Makgoka
J
as he
was then said:
“
Before
I consider the exceptions, an overview of the applicable general
principles distilled from case law is necessary:
(a)
In considering an exception
that a pleading does not sustain the cause of action, the court will
accept, as true, the allegations
pleaded by the plaintiff to assess
whether they disclose a cause of action.
(b)
The object of an exception is
not to embarrass one’s opponent or to take advantage of a
technical flaw, but to dispose of
the case or a portion therefore in
an expeditious manner, or to protect oneself against an embarrassment
which is so serious as
to merit the costs even of an exception.
(c)
The purpose of an exception is
to raise a substantive question of law which may have the effect at
settling the dispute between
the parties. If the exception is not
taken for that purpose, an excipient should make out a very clear
case before it could be
allowed to succeed.
(d)
An excipient who alleges that a
summons does not disclose, a cause of action must establish that,
upon any construction of the particulars
of claim, no cause of action
is disclosed.
(e)
An over-technical approach
should be avoided because it destroys the usefulness of the exception
procedure, which is to weed out
cases without legal merit.
(f)
Pleadings must be read as a
whole and an exception cannot be taken to a paragraph or a part of a
pleading that is not self-contained.
(g)
Minor blemishes and unradical
embarrassments caused by pleading can and should be cured by further
particulars”.
[11] It is
common cause that the main agreement contained a non-variation clause
providing that no variation, adjustment
or addition to the work will
be binding on the parties unless, done in writing and incorporated
into the main agreement by the
parties. The requirement that the
agreement must be reduced to writing and incorporated into the main
agreement is to prevent disputes
as to whether there was a variation,
adjustment or addition of the work and also to identify the parties
authorised to act in that
regard.
[12] A per
the clause in the main agreement there is no obligation on the
parties to sign the variation, adjustment
or addition to the work.
However, what is required of them, is to do the variation in writing
and agree on the cost and additional
time for execution of the work.
Since signature is not a requirement for the parties, that makes room
for the parties to agree
electronically. In this case the plaintiff
relies on an email dated 22
nd
March 2018 as extending the scope of work and instructing it to do
additional construction work to the main contract. The plaintiff
refers to this alleged extension as a variation order to the main
agreement. The email was from one Kobus van Zyl, who forwarded
it
email address
vdubruyn@yahoo.com
.
The email seems to originate from one Nick Muthivheli who seems to be
an employee of the Road Agency Limpopo.
[13]
The email read as follows:
“
According to the Engineers
Calculations Tarman had to do works for R4.5 Mil and absolute (unity)
R1.9 mil. RAL Account on this project
is sitting at R6.343 mil.
Please note that the priority of works is as follows:
1.
Concrete works (vdrains, wing
walls, headwalls and storm water channels)
2.
Installation of balistrates
3.
Borrow Pits
4.
Road signs and markings
5.
Cleaning of road reserves”.
[14] From the
plaintiff’s particulars of claim, the main contractor was Unity
Construction CC which sub-contracted
the defendant. The defendant in
turn sub-contracted the plaintiff to complete the work which was
supposed to be completed by
the defendant. It is not clear as
to what was the relationship between Kobus van Zyl and
Muthivheli. According to
the plaintiff’s particulars of claim,
when the main contract was entered into, the plaintiff was
represented by Mr
Du Bruyn whilst the defendant was represented by Mr
Slabbert. It is not clear from the plaintiff’s particulars of
claim as
to how Kobus van Zyl features in this matter.
[15] The
plaintiff’s cause of action is based on the variation order and
bills of quantity attached to
it. Paragraph 7 of the plaintiff’s particulars of claim which
deals with the alleged extension
of the scope of work
read as follows:
“
During the course of the
contract term the scope of work was extended by the defendant, in
which the plaintiff was instructed by
the defendant to do additional construction work to the main
contract, generally known as a variation
order to the main agreement,
and that the defendant would pay the plaintiff for such work on
delivery of the invoice. (See annexure
“NB7” being a copy
of the instruction
letter and bills of quantity)”.
[16] The
email from Kobus does not contain the names of the people who acted
for the parties, the additional work agreed
upon, the time for the
execution of additional work, the costs agreed upon for the
additional work and the relationship between
Kobus and the defendant.
There are no supporting facts to show that the variation order
complies with the non-variation
clause in the main
agreement to come to the conclusion that the plaintiff’s
particulars of claim are clear and
concise, and also contain material facts which are sufficient to
enable the defendant to plead.
[17]
In
Novartis SA v Maphil Trading
[4]
Lewis JA said:
“…
But, as I have said
the issue here is not what the parties intended their contract to
mean, but whether they intended to bind themselves
contractually.
That inevitably requires an examination of the factual matrix-all
facts proven that show what their intention was
in respect of
entering into a contract: the contemporaneous documents, their
conduct in negotiating and communicating with each
other, and
importantly, the steps taken to implement the contract”.
[18] In my
view, the plaintiff’s alleged variation order lacks sufficient
information. It does not contain a trail
of emails leading to the
alleged conclusion of the variation order. The emails trail would
have shed more light as to what actually
transpired and also gave
details as to who Kobus was. It is not clear in what capacity was
Kobus forwarding this email to the plaintiff.
[19] The
issue whether the alleged variation order has indeed extended the
term of scope of work and is compliance with
the non-variation clause
in the main agreement is essential to enable the defendant to plead.
These particulars are essential and
should be contained in the
plaintiff’s particulars of claim to enable the defendant to
know what case it has to meet. There
is no allegation in the
plaintiff’s particulars of claim as when the alleged variation
order was concluded, who acted for
the parties, what was the scope of
the additional work to be
undertaken by the plaintiff,
what time for the execution of the work
was, and what the agreed costs for the additional work was. Some
pages of the bill of quantity
are blank and does not contain
sufficient information to enable the defendant to plead. In my view,
these defects will not be cured
by a request for further
particulars for the purpose of trial. In this case
it will be
difficult for the defendant to
determine as to what must be done to meet the plaintiff’s
case.
It is not the duty of the defendant to sift through the plaintiff’s
particulars of claim in order to determine the
plaintiff’s
case. The plaintiff’s particulars of claim must contain a clear
and concise statement of material facts
upon which it relies its
claim on with sufficient particularity which will enable the
defendant to plead. In the case at hand the
material facts of the
alleged variation order
are lacking. The defendant will
be prejudiced if it is expected to
plead to the plaintiff’s particulars of claim in its present
format.
[20]
In the result I make the following order:
20.1
The defendant’s exception is upheld with costs
20.2
The plaintiff if it so wish is given 15 days from date of this order
within which to amend its particulars of claim.
MF
KGANYAGO J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARENCES
FOR THE
DEFENDANT
: MR THOMAS
MINNIE
INSTRUCTED
BY
: THOMAS MINNIE ATTORNEYS
FOR THE
PLAINTIFF
: MR NICKY BOSMAN
INSTRUCTED
BY
: BOSMAN ATTORNEYS
DATE OF
ARGUMENT
: 27
TH
MAY 2020
DATE OF
JUDGMENT
: 7
TH
JULY 2020
[1]
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269I)
[2]
1980 (3) SA 91 (A)
[3]
2013 (2) SA 368
GSJ at 374G-375C
[4]
2016 (1) SA 518
(SCA) at 528C-E