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[2019] ZAGPPHC 41
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Setlaboswane Agricultural Cooperative Limited v Temong Management CC and Another (78461/2017) [2019] ZAGPPHC 41 (22 February 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 78461/2017
22/2/2019
In
the matter between:
SETLABOSWANE
AGRICULTURAL
COOPERATIVE
LIMITED
Plaintiff/Respondent
And
TEMONG
MANAGEMENT
CC
1
ST
Defendant
MEMBER
OF THE EXECUTIVE COUNCIL
2
ND
Defendant/Excipient
OF
LIMPOPO DEPARTMENT OF AGRICULTURE
AND
RURAL DEVELOPMENT
JUDGMENT
MOSOPA
AJ
1. This is an
exception taken against the Plaintiff's amended particulars
of claim
dated 04 April 2018 on the basis that such particulars of claim lacks
the necessary averments to sustain a cause of action,
by the Second
Defendant.
2. This matter
initially served before me on the 08
th
of October 2018,
when I realized that the Second Defendant's heads of argument were
not in the court file. The Second Defendant
was at that stage
represented by Mr Modisa who then produced a stamped heads of
argument as a proof that same was served and filed.
I then stood the
matter down to the 11th of October 2018 for argument.
3. On the 11
th
of October 2018 the Second Defendant now represented by Mr Manala at
the commencement proceedings raised an application from the
bar that
the matter be transferred to the Limpopo Division, Polokwane, as the
chosen address for the purpose of the agreement is
in the Limpopo
Province. Secondly, that the Second Defendant is the Member of the
Executive Council of Limpopo Province and finally,
that the matter
pertains to a group of farmers who are all based in Limpopo Province.
I ruled against such matter on the 11th of
October 2018 with full
reasons and allowed the parties to argue the application for
exception.
LEGAL
PRINCIPLE
4. Rule
23 (1) of the Uniform Rules of court provides as follows,
"23 (1) Where any pleadings is vague, embarrassing
or lacks averments which are necessary to sustain an action or
defence,
as the case may be, the opposing party ma y , within the
period allowed for filing any subsequent pleading, deliver an
exception
thereto and may set it down for hearing in terms of
paragraph (f) of sub rule (5) of rule 6. Provided further that
the party
excepting shall within ten days from the date on which a
reply to such notice is received or from the date on which such reply
is due, deliver his exception.
5. An exception
is a legal objection to the opponents' pleading. If complaints
of a
defect inherent in the pleading; admitting for the moment that all
allegation in a summons or plea are true.it asserts that
even with
such admissions the pleading does not disclose either a cause of
action or a defence.as the case may be, it follows that
where an
exception is taken the court must look at the pleading excepted as it
stands.no facts outside those stated in the pleading
can be brought
into issue- except in the case of inconsistency and no reference may
be made to any other document (see Erasmus;
Superior Court Practice,
Second Edition, Van Loggerenberg, Vol 2,0 1- 293,0 1 294).
6. Rule 18(4) of
the Uniform Rules of court provides;
"Every pleading shall contain a clear and concise
statement of the material facts upon which a pleader refer 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".
7. Rule 20 (2)
of the Uniform Rules deserves mention and provides;
"The declaration shall set forth the nature of the
claim, the conclusion of law which the Plaintiff shall be entitled to
deduce
from the facts stated here in, and a prayer for the relief
claimed".
8. In
Mckenzie v Farmers' Co-operative Meat Industries Ltd
1922 AD 16
at23,
the following definition of "cause of action" was adopted
by the Appellant Division,
"every fact which it would be necessary for the
Plaintiff to prove, if traversed , in order to support his right to
judgment
of the court. It does not comprise every piece of evidence
which is necessary to prove each fact, but every fact which is
necessary
to be proved".
9. In Vermeulen
v Goosen Valley Investments (Pty) Ltd
2001 (3) SA 986
at 997 Marais
JA stated "it is trite law that an exception that a cause of
action is not disclosed by a pleading cannot succeed
unless it is
shown that ex facie, the allegations made by a plaintiff and any
document upon which his or her cause of action may
be based, the
claim is (not may be) bad in law".
FACTUAL
BACKGROUND
10. The Plaintiffs
particulars of claim avers that the Plaintiff and Defendant on or
about the 17
th
of August 2018 at Setlaboswane entered into
a written memorandum of agreement ("The Partnership Agreement").
11. The material terms of
the Partnership Agreement were inter alia;
a. That the Setlaboswane
Irrigation Scheme consists of 98 farmers to produce potatoes
and
other cash crops, such as maize and wheat;
b. The
objectives of the Plaintiff with the appointment of the First
Defendant was to operate
the Setlaboswane irrigation Scheme in terms
of the partnership agreement were to;
c. Operate the irrigation
scheme, as part of the project of this department, to its optimum
potential capacity, on a profitable commercial basis;
d. Train farmers (who were
members of the Plaintiff) and transfer the required skills
to empower
them to operate the irrigation scheme themselves in the long term
which included training in the areas of finance, quality
control,
marketing, management, operational, technical and business
administration;
e. Ensure that profit
sharing formula arrangement was implemented among the First Defendant
and Plaintiff, during the three year period under the partnership
agreement;
f. Comply with the
implementation of the empowerment of the Department;
g. The Department would
remain involved in the management of the partnership at board
level
to ensure that the objectives of the partnership agreement were
achieved, and;
h. That the partnership will
commence on the 17
th
of August 2008 and endure for a
period of 3 years to expire on 17
th
of August 2011,subject
to any prior termination.
THE
EXCEPTION
12. It
is
trite
that the onus is on the excipient to prove that the Plaintiff's
amended particulars of
claim
are excipiable.
13. Mr Manala
contended on behalf of the excipient that the Plaintiff is relying
on
the partnership agreement which was concluded between the Plaintiff
and the First Defendant and no reference is made to the
excipient.
Furthermore the excipient is not a signatory to the partnership
agreement.
14.
Further
that the memorandum agreement of agreement cannot be construed as
giving rise to the following
14.1
Fiduciary relationship;
14.2
Contractual obligation, and
14.3
Statutory obligation to render the account on the part of the
excipient
15.
As
a result the terms and conditions of the partnership agreement are
not binding and enforceable on the excipient.
16.
It
was contended on behalf of the Plaintiff that the partnership
agreement constitutes a tripartite agreement with the excipient
exercising an oversight function in order to advance the project, as
such the excipient remains in the management of the scheme.
17.
Further
that all issues raised by the excipient cannot be disposed off at
exception proceedings but can be properly be dealt at
trial stage.
18.
I
am alive to the fact that the excipient is not a signatory to the
partnership agreement. However what is important is to look
at the
structure and nature of the partnership agreement. Paragraph 6.9 of
the amended particulars of claim provides as follows
"upon the
establishment of the partnership and to implementation of the
partnership agreement, the partnership would form
an integrated part
of the Department (i.e. excipient)".
19.
From
the above, it is clear that even though the excipient is not a
signatory to the partnership agreement it is given certain
responsibilities in relation to how the scheme is to be implemented
and operated and most importantly on overseeing the whole project.
In
my mind that in itself creates a fiduciary relationship.
20.
The plaintiff pleaded all this in its amended particulars of
claim and that's actual what the exception is all about, the court
need only to look at the particulars of claim when determining the
exception, (see Baliso v Firsrand Bank Limited t/a Wesbank
2017 (1)
SA 292
(CC) at 303 E).
21.
I am in agreement with counsel on behalf of the Plaintiff that
all issues raised by the excipient at this stage are matters that
can
be properly be dealt with at the trial stage. It is for this reason
that this exception cannot succeed.
ORDER
22.
I therefore make the following order;
1. The exception taken
against the Plaintiff's amended particulars of claim is dismissed
with costs.
M.J MOSOPA
ACTING JUDGE OF THE HIGH COURT
PRETORIA
HIGH COURT
APPERANCES
For
Excipient/Second Defendant: Adv Manala
Instructed
by : State Attorney Pretoria
For
the Respondent/Plaintiff: Adv H.P Van Nieuwenhuisen
Instructed
by: Tshabalala Attorneys
Date
of Hearing: 11 October 2018.
Date
of Judgment: 22 February 2019