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[2019] ZAGPPHC 9
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GPC International Logistics CC v Mobile Telephone Networks (Pty) Ltd and Another (35432/2018) [2019] ZAGPPHC 9 (1 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE
WHICHEVER IS NOT APPLICABLE
(1)
REPORTABLE:
YES
/NO
(2)
OF INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED - No
DATE:
1 February 2019……..………………………
SIGNATURE:
.…………………………………………………
Case No. 35432/2018
In the matter between:
GPC INTERNATIONAL LOGISTICS CC
PLAINTIFF
And
MOBILE TELEPHONE NETWORKS (PTY) LTD
FIRST DEFENDANT
DSV SOUTH AFRICA (PTY) LTD
SECOND DEFENDANT
JUDGMENT
MILLAR, A J
1.
This
is an application for the upholding of exceptions taken against
the particulars of claim filed by the plaintiff in an
action against
the first and second defendants. For purposes of this judgment I will
refer to the excipients as defendants and
to the plaintiff as the
respondent.
2.
Both
of the defendants delivered notices in terms of rule 23(1) of the
Uniform Rules of Court calling on the plaintiff to remove
the
particular causes of complaint raised by each of them.
3.
No
response was forthcoming from the plaintiff to either of the
defendants, and so both proceeded to deliver their respective
exceptions
to the plaintiff’s particulars of claim.
4.
The
first defendant raised six different grounds upon which its exception
was taken. Essentially the complaint in each was that
the plaintiff
failed to comply with the provisions of Rule 18:
4.1
Rule
18(6) in that the particulars to be pleaded in respect of an oral
contract were not pleaded in paragraph 4 of the particulars
of claim
– the first exception; and
4.2
Rule
18(10) in that there was insufficient particularity pleaded to enable
the assessment of the services rendered and goods supplied
and
following from this the quantum claimed (in paragraph 5.2) –
the second to sixth exceptions.
5.
The
second defendant’s exception is a crisp one and is raised on
the basis that there is no cause of action pleaded against
it.
6.
The
relevant paragraphs of the particulars of claim read as follows:
“
4.
During July 2015 and at Johannesburg, Plaintiff represented by Gary
Paul Murphy and
Defendant represented by Thelma Nthudu verbally
agreed that Plaintiff would render logistical services to First
Defendant for a
period of 3 (Three) years to terminate on 31 July
2018.
5.
The relevant terms and conditions of the Agreement were then as
follows:
5.1
Plaintiff would render services to Defendant on a monthly basis for
the 3 (Three) year period
terminating at the end of July 2018;
5.2
The services would entail the rendering of logistical services
(transport of Cell phones
and other assets), security services, and
supply of vehicles to the First Defendant.
5.3
First Defendant would reimburse the Plaintiff at a fixed rate of R1
772 441.66 …..
excluding VAT per month in respect of security
services (inclusive of Escorts).
5.4
Plaintiff would provide security, radio and tracking devices at a
cost of R32 172.71 …..
excluding VAT per month.
5.5
Plaintiff would provide vehicles at a rental cost of R443 169.68 …..
excluding VAT
per month.”
6.
“
Rule 18(4) of the Uniform
Rules of Court provides that 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, with sufficient
particularity to enable the
opposite party to reply thereto.
It is, of course, a basic principle that particulars of claim
should be so phrased that a defendant may reasonably and fairly be
required to plead thereto. This must be seen against the background
of the further requirement that the object of pleadings is
to enable
each side to come to a trial prepared to meet the case of the other
and not be taken by surprise.
Pleadings must therefore be lucid and logical
and in an intelligible form; the cause of action or defence must
appear clearly from
the factual allegations made”
[1]
7.
In
the present matter the particulars of claim must be looked at as they
stand
[2]
and
“
We
have to look at the matter from the point of view of the party who is
faced with a pleading of this nature. How is he to know
what case he
is called upon to meet?”
[3]
and
“
in
order for an exception to succeed, it must be excipiable on every
interpretation that can reasonably be attached to it. See First
National Bank of Southern Africa Ltd v Perry NO and Others
2001 (3)
SA 960
(SCA) at 965D. Further, that a charitable test is used on
exception, especially in deciding whether a cause of action is
established.
The pleader is also entitled to a benevolent
interpretation. The pleadings must be read as a whole, no paragraph
can be read in
isolation.”
[4]
8.
Paragraph
4 of the particulars of claim refer to an agreement having been
reached with the “defendant” – in the
singular
[5]
but there are two defendants cited in the papers. Paragraph 4
thereafter refers to the contract for the render of services to the
First Defendant.
9.
There
is no reference to the Second Defendant specifically anywhere in
paragraph 4 or for that matter elsewhere in the particulars
of claim
save for its citation in paragraph 2.2 and
in
paragraph 7 where the allegation is made that it paid invoices
submitted to it. Save for these two direct refences there are
no
other references to the second defendant.
10.
It
is not clear from the manner in which the agreement has been pleaded
in paragraphs 4 and 5 (in referring to the “defendant”
in
the singular in paragraphs 4 and 5.1 and referring specifically to
the first defendant in paragraphs 5.2 and 5.3 and referring
to
neither of the defendants in paragraphs 5.4 and 5.5), who the
agreement was entered into with and what the terms were with the
party or parties concerned
[6]
.
For these reasons the exception taken by the second defendant must be
upheld.
11.
The
first defendant did not raise as a ground of exception that the
particulars of claim disclosed no cause of action. If it had,
I would
have upheld it. During argument it was contended that as the second
defendant had delivered its exception first, the first
defendant need
not have raised the same exception. The argument was that once the
particulars of claim are found to be excipiable
then the consequences
that flow from this inure to the benefit of both parties.
12.
While
this is so, it must be borne in mind that each party has taken its
own exception. Each is separate and distinct (in this case)
and it is
only a matter of convenience that both were heard at the same time.
If one of the parties had withdrawn its exception
or the plaintiff
had withdrawn the action against that party, it would not have been
open to the other to rely on grounds of exception
not raised by it.
13.
I
now deal with the exceptions raised by the first defendant. The first
exception is that because the particulars of claim did not
specify
the specific date or place when and where the contract was entered
into, the particulars of claim are vague and embarrassing.
I do not
agree – as appears from paragraph 4, the contract was stated to
have been entered into “
During
July 2015 and at Johannesburg
”.
Sufficient particularity has been furnished to plead to this
allegation. Insofar as the first defendant is entitled to
further
particulars in regard to these allegations, it does not detract from
the fact that it is able to plead. For this reason,
I would not
uphold the first ground of exception.
14.
The
second to sixth grounds of exception are raised in respect of what is
claimed from the first defendant and the quantum of the
claim. The
plaintiff pleaded a claim for “
logistical
services
”,
referring to this in paragraphs 3 and 4. In paragraph 5.2 it is
pleaded as “
logistical
services (transport of Cell phones and other assets)
”.
It also referred to “
services
”
in paragraph 6 and to a “
service
agreement
”
in paragraph 8. The plaintiff also pleads and relies on a written
termination of the “
service
agreement
”
expressed in an annexure to the particulars of claim to be in respect
of “
vehicle
rental services
”
15.
It
is against this background that the particulars of claim are said to
be vague and embarrassing, the plaintiff having pleaded
in in
paragraph 5.2 that the “
services
”
it would provide were for logistical services, security services and
the supply of vehicles. It also pleads separately,
claims for
“
security
services (inclusive of escorts)
”,
“
security,
radio and tracking devices
”
and “
vehicles
at a rental cost
”.
All of these claims are expressed as lump sums. None of the
amounts claimed are expressed to be estimates and have
been
calculated to a specific amount.
[7]
The plaintiff having pleaded insufficient information for the first
defendant to plead, the second to sixth exceptions must be
upheld.
16.
In
the circumstances it is ordered:
12.1
The
exception of the first defendant is upheld with costs.
12.2
The
exception of the second defendant is upheld with costs.
12.3
The
plaintiff is granted leave to deliver amended particulars of claim
within 15 days.
A MILLAR
ACTING JUDGE OF THE HIGH COURT
GAUTENG
DIVISION, PRETORIA
HEARD
ON:
31
JANUARY 2019
JUDGMENT
DELIVERED ON:
1
FEBRUARY 2019
COUNSEL
FOR THE PLAINTIFF
ADV. M
SNYMAN
INSTRUCTED
BY:
BRANDON
MULLER
ATTORNEYS
REFERENCE:
MR VAN DER
HOVEN
COUNSEL
FOR THE FIRST DEFENDANT:
ADV. TK MANYAGE
INSTRUCTED
BY:
MASHIANE
MOODLEY MONAMA
REFERENCE:
MR MAPHAKELA
COUNSEL
FOR THE SECOND DEFENDANT:
ADV DL WILLIAMS
INSTRUCTED
BY:
WRIGHT ROSE INNES INC
REFERENCE:
MS R CARRINGTON
[1]
Trope
v South African Reserve Bank and Another
1992 (3) SA 208
(T) at
210G-H
[2]
Dilworth
v Reichard [2002] 4 All SA 677 (W)
[3]
General
Commercial and Industrial Finance Cor, Ltd v Pretoria Portland
Cement Co., Ltd
1944 AD 444
at 454
[4]
Nel
and Others NNO v McArthur and Others
2003 (4) SA 142
(T) at 149E-G
[5]
“
Separate,
individual, single” and “Of or pertaining to an
individual
”
Shorter Oxford English Dictionary, Oxford University Press, Fifth
Edition 2002 at page 2846
[6]
Nel
supra at 146H-147A; Jowell v Bramwell-Jones & Others
1998 (1) SA
836
(W) at 899G; see also Francis v Sharp 2004 (3) SA 230 (C)
[7]
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 467D – “
A
bald allegation by a plaintiff as to the quantum of his damages does
not amount to compliance with Rule 18(10), particularly
where he
does not allege that the damages claimed are an estimate and where
it furthermore appears they were calculated to an
exact amount.”