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[2019] ZAGPPHC 22
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Molefe and Another v Schmidt (27376/2017) [2019] ZAGPPHC 22 (7 February 2019)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE
(2)
NOT OF
INTEREST TO OTHER JUDGES
(3)
REVISED
Case
Number: 27376/2017
7/2/2019
Keith
Ackerman
First Plaintiff/First Respondent
Marone
Ackerman
Second Plaintiff/Second Respondent
and
Gideon
Jacobus Schmidt
Defendant/Excipient
JUDGMENT
MOLEFE
J
[1]
The defendant (excipient) in this
application, excepts to the averments in the plaintiffs'
(respondent's) particulars of claim on
the basis that same is vague
and embarrassing, alternatively on the basis that it lacks averments
which are necessary to sustain
a cause of action. The plaintiffs
oppose the exception.
[2]
On 19 April 2017, the plaintiffs
instituted an action against the defendant for payment in the sum of
R276 781.82, being the value
added tax (VAT) amount paid to the
defendant. The plaintiff's claim is based on the defendant’s
undue enrichment at the expense
of the plaintiffs when affecting
certain building works for the plaintiffs. The plaintiffs allege that
the defendant is not a registered
VAT vendor and was not entitled to
charge VAT, and was therefore unduly enriched.
[3]
On 5 October 2017, the defendant
delivered a notice of intention to raise an exception and for the
plaintiffs to remove a cause
of the complaint in terms of rule 23
[1]
,
in terms of which he averred that the particulars of claim is vague
and embarrassing, alternatively that it lacks averments necessary
to
sustain a cause of action. The plaintiffs did not amend the
particulars of claim and a notice of exception was subsequently
delivered to the plaintiffs on 8 November 2017, which exception is
before me.
First Ground of Exception
[4]
In paragraph 4 of the particulars of
claim, the plaintiffs pleaded that during or about February 2015 to
November 2015, they personally
concluded a partly written, partly
oral agreement with the defendant ("the Elarduspark agreement").
The written portion
of this agreement consists of a large number of
e-mail, correspondence between the parties and the plaintiffs rely on
some fifteen
(15) emails as the alleged written component of the
Elarduspark agreement.
[5]
Defendant's counsel
[2]
submits that the emails on face value, contains information in
relation to matters unrelated to the contractual terms and/or
contractual
amendments which must be specifically pleaded. It was
further submitted that even though the plaintiffs aver that the
Elarduspark
agreement concluded with the defendant was partly oral,
they failed to plead and/or specify any of the oral terms of the
agreement,
and when the alleged oral components of the agreement were
concluded.
Second ground of exception
[6]
In paragraph 6 of the particulars of
claim, the plaintiffs plead that during or about February 2015 to
November 2015, they personally
concluded a partly written, partly
oral agreement with the defendant ("the Lonehill agreement").
The written portion
of this agreement consists of a large number of
email correspondence between the parties, and the plaintiffs purports
to rely on
forty-three (43) emails as the written component of the
Lonehill agreement.
[7]
Defendant's counsel submits that it is
essential for the plaintiffs to have pleaded the various items relied
upon instead of merely
referring the defendant to numerous emails
exchanged between the parties, some of the emails not even related to
the contract.
It was further submitted that even though the
plaintiffs aver that the Lonehill agreement was partly oral they
failed to plead
and/or specify any of the alleged oral terms and when
the alleged oral components of the agreement were concluded.
Third
Ground of Exception
[8]
The cause of action is purportedly based
on various payments which were made to the defendant, in relation to
the two agreements
as pleaded. In paragraph 12 of the particulars of
claim, the plaintiffs plead that
"
pursuant to the Elarduspark agreement and the Lonehill agreement, the
plaintiffs effected the following payments to the defendant
during
the period 3 March 2015 to 24 October 2015.
.
." Payments allegedly made to the defendant is pleaded, without
distinguishing which payments were made in relation to which
of the
two agreements.
[9]
Counsel for the defendant argues that
this renders it difficult to ascertain if the payments relate to the
agreement/s at all, or
if the amounts were paid for another
causa
which is unrelated to the two
agreements pleaded.
[10]
Before dealing with the exception,
regard should be had to the provisions of rule 18 (4)
[3]
:
"Every pleading shall contain
a
clear and concise statement
of
the material facts upon which the
pleader relies for his claim.
. .
with sufficient particularity to
enable the opposite party to reply thereto".
[11]
The general principles in interpreting
pleadings were stated by Heher J in
Jowell
v Bramwell-Jones and Others
[4]
:
" (a) minor blemishes are
irrelevant;
(b)
pleadings must be read as
a
whole; no paragraph can be read in
isolation;
(c)
a
distinction
must be drawn between facta probanda .
.
.
and facta probantia.
.
.;
(d)
only facts need to be pleaded;
conclusions of law need to be pleaded;
(e)
...
certain
a/legations expressly made may carry with them implied allegations
and the pleading must be so read.
.
. "
[12]
The pleader is required to state its
case in a clear and logic manner so that the cause of action can be
made out of the allegations
stated. The material facts
(facta
probanda)
should be pleaded, as
opposed to facts used to prove
(facta
probantia)
such material facts, that is, the
evidence
[5]
.
The defendant must persuade the court that upon every reasonable
interpretation, the particulars of claim fail to disclose
a
cause of action
[6]
.
The
onus
of
showing that a pleading is excipiable rests on an excipient
[7]
.
[13]
It is clear that the first and second
exceptions are in all respects similar. The only difference is that
the first exception is
aimed at the Elarduspark agreement, whereas
the second exception is aimed at the Lonehill agreement.
[14]
Counsel for the plaintiffs
[8]
submits that the two agreements referred to in the particulars of
claim, are not the integral part of the plaintiffs' cause of
action
against the defendant and that it was only pleaded to illustrate why
payments were made. In my
view
there
is no merit in this submission. A party clearly “
relies
upon a contract”
or part
thereof when he uses it
"as a
link in the chain of his cause of action
[9]
”.
[15]
For the purpose of deciding an
exception, a court must assume the correctness of the factual
averments made in the relevant pleading,
unless they are palpably
untrue or so improbable that they cannot be accepted. An excipient
has the duty to persuade the court
that, upon every interpretation
which the pleading can reasonably bear, no cause of action or
defence is disclosed.
[10]
[16] The third
exception is essentially that the plaintiffs failed to plead
specifically which payments
were made pursuant to which agreement.
Plaintiffs' counsel submits that it is completely irrelevant for
which agreement the payments
were made. I do not agree with this
submission. A plaintiff suing for damages shall set them out in
such a manner as will
enable the defendant reasonably to assess the
quantum thereof
[11]
.
This does not however mean that the plaintiff must ignore the
provision of rule 18(4), which requires every pleading to contain
"a
clear and concise statement of the
material facts upon which the pleader relies for his claim.
.
."
[12]
To annex numerous emails to the particulars of claim, hardly provides
a clear and concise statement.
[17] The grounds of the
defendant's exception in this matter, actually displays that the
plaintiff's cause
of action is vague and embarrassing and that the
defendant is not in a position to answer to the plaintiff's claim. I
am therefore
satisfied that the excipient is entitled to an order
upholding the exception.
[18] In the result, I
make the following order:
1.
The exception is upheld with
costs;
2.
The plaintiffs particulars of
claim is struck out;
3.
The plaintiffs are afforded
a
period of fifteen (15) days from date
of this order within which to amend the particulars of claim.
DS
MOLEFE
JUDGE
OF THE HIGH COURT
APPEARANCES:
Counsel
on behalf of 1
st
& 2
nd
Plaintiff/Respondent
Adv. T Cooper
Instructed
by
Dyason
Incorporated
Counsel
on behalf of Excipient/Defendant
Adv. N Marshall
Instructed
by
Van Schalkwyk Attorneys
Date
of
Hearing
3 December 2018
Date
of
Judgment
7 February 2019
[1]
Uniform Rules of Court
[2]
Advocate N Marshall
[3]
Uniform Rules of Court
[4]
1998 (1) SA 836
(W) at 902 1-J and 903 A-B
[5]
Mckenzie v Farmers Corporative Meat Industries Ltd 1922 AD
[6]
First National Bank of Southern Africa Ltd v Perry NO
2001 (3) SA
960
(SCA) at 965 D
[7]
South African National Parks v Ras 2002 (2)SA 537 at 542 (C)
[8]
Advocate T Cooper
[9]
South African Railways and Harbours v Deal Enterprises (Pty) Ltd
1975 (3)SA (W) at 953 A.
[10]
Per HJ Erasmus in Francis Sharpe
2004 (3) SA 230
(C) at 231 D
[11]
Rule 18(10) of the Uniform Rules of Court
[12]
Doyle v Sentraboer (Co-operative) Ltd
1993 (3) SA 176
at 181 E-F