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[2019] ZAGPPHC 44
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Brondev Developments (Pty) Ltd and Another v City Of Tshwane Metropolitan Municipality (74422/16) [2019] ZAGPPHC 44 (22 February 2019)
IN THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 74422/16
22/2/2019
In
the matter between:
BRONDEV
DEVELOPMENTS (PTY) LTD
1
st
PLAINTIFF
QUADROTUND
(PTY) LTD
2
nd
PLAINTIFF
And
CITY
OF TSHWANE METROPOLITAN
DEFENDANT
MUNICIPALITY
JUDGMENT
A
E ANDREWS, AJ:
[1]
In this matter the plaintiffs (excipients) except to the defendant's
(respondent's)
special plea and plea on the basis that both are vague
and embarrassing.
[2]
The background to the matter is that plaintiffs were established with
the sole purpose
of developing o townships and eventually did so,
establishing the two townships known as Bronberg Extension E3 and
Bronberg Extensions
2 respectively. (Referred to in the particulars
of claim as Brondev Extension 6 and Brondev Extensions 2)
[3]
The plaintiffs issued summons claiming
the rendering ·of full accounts by the defendant regarding the
calculation of amounts
to be reimbursed to them arising from external
services installed by them for the townships Bronberg Extensions 2
and 6. Also claimed
was debatement of the accounts within 45 days
after the date of the order and the reimbursement of the plaintiffs
of the calculated
amounts within 60 days of the debatement of the
accounts.
[4]
The defendant filed a special plea and
also a plea. The plaintiff has excepted to both.
The
special plea
[5]
The special plea states that the
plaintiffs' claim is unenforceable on the following grounds:
a.
The
plaintiffs! do not have an account with the defendant;
b.
Even·
if they id there is no fiduciary duty on the defendant to deliver the
statement of account to the plaintiffs;
c.
The
defendant is not contractually bound to provide the plaintiffs with
the statement of account nor to debate such statement thereof;
and
d.
There is no statutory duty obliging the
defendant to deliver and debate the statement of account.
[6]
In addition the special plea states that
the particulars of claim do not inform the defendant of the all ed
agreement and there
is no causal link between the relief sought and
the allegation of the conclusion of an agreement. There is also no
claim of a breach
of the alleged agreement. There is no record of the
plaintiffs having an account with the defendant or attempting to open
an account.
There is also no clarity as to what kind of account the
plaintiffs wish to be provided with.
[7]
The special plea therefore denies the
factual and legal basis of the claim as well as claiming that the
particulars of claim lack
allegations to sustain a cause of action.
[8]
The plaintiffs excepted to both the
special plea and plea on the basis that said pleadings are vague and
embarrassing. As stated
in plaintiffs' first cause of
complaint, they cannot ascertain whether the defendant
In its special plea wishes to raise an exception on the basis that
the particulars of claim lack averments to sustain a cause of action,
or whether it wishes to raise a denial of the factual averments
therein which if prove at the trial would result in the plaintiffs
case being successful. In the premises it was argued that the
special
plea is vague and embarrassing. Plaintiffs argued that a true special
plea requires a replication and it is usually dealt
with at trial.
The lack of clarity in the defendants special plea has resulted in
the plaintiffs facing a quandary as they do not
know whether to
proceed and file a replication or to follow the procedures set out in
rule 23.
[9]
Secondly,
the plaintiffs raised a complaint that neither an exception nor a
denial of allegations
can be raised in a special plea. In the
premises it was argued that the special plea is irregular.
[10] The defendant failed to
remove the complaints canvassed in the plaintiffs' exception and did
not fil heads
of argument until the court appearance.
[11]
At the hearing M Pretorius, for the
plaintiffs, argued that they are prejudiced as it is impossible for e
plaintiffs to react and
meet the defendant's case. An exception is
argued on t e pleadings whereas a special plea may require the
leading of evidence.
[12]
Mr Vorster, for the defendant argued
that the plaintiff's particulars did not set out the basis upon which
they would be entitled
to debate the account and therefore such
pleadings lack allegations to sustain a cause of action. Reference
was made to the judgment
in
ABSA Bank
Bpk v Janse Van Rensburg,
2002(3) SA
701 (SCA) where the court made it clear that, in order to obtain an
order to debate an account, the person seeking such
an order must
establish that a fiduciary relationship existed between that person
and the other party, or that there was a contractual
agreement been
them that this would occur, or that a statutory provision created
such an obligation.
Ex facie
the
pleadings - an a, more especially, the deceased's own particulars of
claim - none of these requirements was met.
[13]
Mr Vorster argue that the defendant was
entitled to raise this issue by way of an exception or at trial b way
of a special plea.
Reference was made to the case of
Moila
v City of Tshwane Metropolitan Municipality
(249/2016
[2017] L.ASCA 15 (March 2017) where the municipality in effect, took
a point
in limine
to
the effect that on the facts as pleaded, the plaintiff had no right,
in law to debate the account. In this case it was held that
the
municipality's point of law relates to the facts, as pleaded. In his
particulars of claim, the deceased did not set out the
basis upon
which he would have been entitled to debate the account.
[14]
In the present case, it was further
argued that (notwithstanding the inelegant special plea), the
plaintiffs can in fact ascertain
from it what the appropriate course.
Of action would be. They can amend their particulars of claim to
address the complaint of
the failure to disclose a cause of action
and they can prepare for trial on the merits.
[15]
In response Mr Pretorius argued that
defendant was in effect arguing an exception without having
followed the rules for' exceptions.
[16]
For the exception to be upheld, the onus
is on the excipient to show both vagueness amounting to embarrassment
and embarrassment
amounting to prejudice. (Erasmus S
uperior
Court Practice
2ed at 01- 300
service 4).
[17]
If the contested pleading is capable of
being rectified by way of an amendment by the plaintiff, then no real
prejudice has been
suffered by it. The defendant has made out a case
that the embarrassment caused by the pleading could have been
addressed by the
plaintiffs through an amendment to their particulars
of claim and therefore the complaint regarding the special plea is
not sufficient
to found a successful exception.
[18]
The exception relating to the special
plea is therefore dismissed.
Defendant's
plea
[19]
The plaintiff excepted to the defendants
plea on the basis that it is contradictory therefore vague and
embarrassing.
[20]
Defendant's plea to paragraphs 1O and 11
of the plaintiff's particulars of claim is a denial of any agreement
entered into by it,
or its erstwhile predecessors, with the
plaintiffs. These paragraphs of the particulars of claim deal with
agreements in terms
of section 117 and 121 of the Town Planning and
Townships Ordinance 15 of 1986 (the Ordinance) pertaining to Bronberg
Extension
6 and Bronberg Extenstion 2, developments mentioned in
paragraphs 4 to 8 of the particulars of claim.
[21]
Section 117 relates to the
classification of engineering services by agreement between the local
authority and an the owner of the
land who is not a local authority
(referred to as the applicant). Section 121 deals with the agreement
for the applicant to pay
a contribution for external services
provided by the local authority. The plea denies that this agreement
took place.
[22]
Defendants plea to paragraphs 13 and 14
of the particulars of claim is it is "not aware of any agreement
entered into by its
erstwhile predecessor and the plaintiffs."
This suggests that the said agreements might exist, the defendant is
just not aware
of them.
[23]
The particulars of claim in paragraph 13
describe further arrangements relating to amongst others, "the
issues regarding to
which the first plaintiff and defendant had to
come to an agreement in terms of the stipulations of section 117 and
121 of the
ordinance referred to in paragraph8 above." These
arrangements are therefore averred by plaintiff to be part of or an
extension
of the initial agreement described in paragraphs 10 and 11.
It follows that if the arrangements described in paragraph 13 and 14
took place, the agreement described in paragraphs 10 and 11 must
exist.
[24]
Paragraph 13 and 14 describe
arrangements for the plaintiffs to provide the external services
where the local authority concerned
was the Kungwini Local
Municipality. In the order of this court under case number 4234/2005
dated 13 September 2007, reference
is made to the first plaintiff
having provided external services to Bronberg Extension 6.
[25]
The defendant’s denial of the
existence of the agreement referred to in paragraph 10 and 11 must
imply that no further agreements
or arrangements such as are
described in pararaphs 13 and 14 could have existed either.
[26] The
defendant's averment that it has no knowledge of the subsequent
developments is inconsistent
with the earlier denial and is
contradictory thereto. It suggests that such further agreements could
exist, the defendant just
does not know about them.
[27]
The plaintiff comp ins in parc3graph 11
of the exception to the plea that:
"if it is the defendant's, case that the
parties never entered into an agreement it would be allowed during
the trial to adduce
evidence to that effect. However if it is the
defendant's case that does not have knowledge of any agreement it
would not be allowed
at the trial to adduce evidence that the parties
never entered into an agreement. In other words, in the last scenario
the defendant
will not be allowed to contradict any evidence adduced
by the plaintiffs of the existence of the alleged agreement. It is
therefore
essential for the plaintiffs to know what the defendants
case is in this regard"
[28]
This argument by the plaintiff has
merit. The contradictory averments made by defendant are not pleaded
in the alternative and result
in the plaintiff not knowing what case
the defendant is advancing and hence not being m a position to meet
the defendants case.
The plea is contradictory in a material respect
and is therefore embarrassing, with such embarrassment striking at
the root of
the defence pleaded and causing the plaintiff to be
prejudiced. The exception to the plea is therefore upheld.
[29]
I make the following order
e.
The
exception to the special plea is dismissed with costs;
f.
The
exception to the plea is upheld with costs;
g.
The
defendant is granted leave to amend its plea within twenty one (21)
days of date of delivery of this judgment.
A E ANDREWS
ACTING JUDGE OF THE HIGH
COURT GAUTENGDIVISION, PRETORIA
DATE
HEARD
4
th
FEBRUARY 2019
DATE DELIVERED
22
nd
FEBRUARY 2019
For
the Plaintiff
ADV PRETORIUS
Instructed
by
DAWIE BEYERS ATIORNEYS INC
PRETORIA
For
the Defendant
ADV VORSTER
Instructed
by
MALEBYE MALEHO ATTORNEYS
PRETORIA