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[2019] ZAGPPHC 282
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Maghilda Investments (Pty) Limited and Others v Centrus (Pty) Ltd and Others (76921/2016) [2019] ZAGPPHC 282 (15 May 2019)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1)
REPORTABLE:
NO
(2)
OF
INTEREST TO OTHER JUDGES: NO
Case Number: 76921/2016
In
the matter between:
MAGHILDA
INVESTMENTS (PTY) LIMITED
First Plaintiff
JONATHAN
BRUCE SANDLER N.O.
Second Plaintiff
GEOFFREY
ALAN WEST N.O.
Third Plaintiff
ANTHONY
DE AGUIAR N.O.
Fourth Plaintiff
and
CENTURUS
(PTY)
LTD
First Excipient/Defendant
NUANCE INVESTMENTS (PTY)
LTD
Second Excipient/Defendant
ADRIAN
RISSIK VAN DER
BYL
Third Excipient/Defendant
HENRY
RICHARD VAN DER BYL
Fourth Excipient/Defendant
MAHENDRA
NAIDU
Fifth Excipient/Defendant
TREVOR
JOSEPH GLASS
Sixth Excipient/Defendant
JACK
STUART PRENTICE
Seventh Excipient/Defendant
ROBERT
JAMES MCMILLAN
Eighth Excipient/Defendant
JUDGMENT:
EXCEPTION
KUBUSHI
J
INTRODUCTION
[1]
The plaintiffs are, in this action, suing the defendants for damages
in a claim based
on fraudulent alternatively negligent non-disclosure
of adverse financial information. The allegation is that the said
non-disclosure
led the plaintiff to conclude various contracts with
the defendants. The contracts were later declared void
ab initio.
[2]
The defendants are defending the action
in two groups comprising of the first to fourth and seventh to eighth
defendants ("the
first defendant group") on the one hand;
and the fifth to sixth defendants ("the second defendant group")
on the
other. The two defendant groups have each excepted to the
plaintiffs' particulars of claim. These are the exceptions before me.
[3]
Both defendant groups have each raised
two exceptions. The second defendant group's exceptions are each
based on two grounds. There
are, therefore, six grounds of the
exceptions to be determined in this matter. The second defendant
groups' second exception was
preceded by a notice in terms of uniform
rule 23 (1).
[4]
In summary, the exceptions are the
following:
4.1
The
first defendant group took exception to the plaintiffs' particulars
of claim on the basis that it lacks essential averments
to sustain a
cause of action. There are two exceptions raised by the first
defendant group in this regard, namely, that -
4.1.1
the alleged non-disclosures are not
casually linked to the non conclusion of an agreement between
the plaintiffs and RCR Property
Development and Construction SA (Pty)
Ltd (“RCR”) and the plaintiffs' alleged loss of profits.
4.1.2
the particulars of claim do not disclose
a basis for holding that the alleged non-disclosures could have been
wrongful.
4.2
The second defendant group took
exception to the plaintiffs' particulars of claim read with the
plaintiffs' replication to the plea.
There are two exceptions in this
regard:
4.2.1
The first exception is that the
particulars of claim read with the plaintiffs' replication lacks
essential averments to sustain
a cause of action in that
4.2.1.1
the
particulars of claim do not disclose a basis for the conclusion that
there was a legal duty on each of the defendants, and in
particular
the fifth and sixth defendants, to disclose the adverse financial
information.
4.2.1.2
there is no allegation in the
plaintiffs' particulars of claim that the ministerial consent in
terms of the Subdivision of Agricultural
Land Act
[1]
("SALA") would have been obtained before the conclusion of
the agreements with RCR,
alternatively
allegations showing that the RCR
agreements would not have required such ministerial consent.
4.2.2
The second exception is that the
plaintiffs' particulars of claim read with the plaintiffs'
replication are vague and embarrassing
in that
4.2.2.1
the
damages as pleaded in the plaintiffs' pleadings do not disclose a
cause of action
alternatively
the
damages as pleaded are contradictory and vague and embarrassing in
that the damages calculated on this basis are contractual
damages.
4.2.2.2
the
plaintiffs in paragraph 27 of the particulars of claim relies on the
contractual relationship between the plaintiffs and Centurus
and
Nuance which was declared null and void. The pleadings are
accordingly contradictory and vague and embarrassing.
Before I deal with the exceptions I, first set
out the factual background.
FACTUAL BACKGROUND
[5]
The plaintiffs were, as at 21 November
2007, the owners of certain properties defined in the papers as
lngwenya Properties. The
plaintiffs decided to develop the lngwenya
Properties as a mixed residential/agricultural development ("the
lngwenya Development").
They then invited bids from parties in
the property development industry with a view of concluding
agreements for the purchase
of the lngwenya Properties and
undertaking the lngwenya Development in a joint venture with the
successful bidder.
[6]
Between June and November 2007, the
plaintiffs negotiated with various parties, including the first
defendant ("Centurus")
and the second defendant ("Nuance")
both represented by the third to the eighth defendants ("the
defendants")
and with RCR.
[7]
Pursuant to the aforesaid
negotiation,son 21 November 2007 and on 15 February 2008, the
plaintiffs concluded three agreements with
the defendants, defined in
the papers as the "lngwenya Agreements".
[2]
The agreements were partially implemented, amongst others, in that
immovable property was transferred to Nuance against payment
of an
amount of approximately R50 million. It appears as if some of the
terms of the agreements were never complied with. And,
after lengthy
negotiations between the parties, on 23 June 2009, Nuance informed
the plaintiffs that the agreements were concluded
in contravention of
SALA
[3]
and were thus void
ab initio.
Nuance
demanded repayment of all monies paid to the plaintiffs against
retransfer of the properties transferred to them.
[8]
On 19 February 2012 Nuance instituted
legal proceedings against the plaintiffs in which it claimed a
declarator that the purported
lngwenya Agreements were null and void
from the outset, and that the plaintiffs repay the amounts received
by them against retransfer
of the transferred properties. After
lengthy litigation between the parties the matter ended in the
Supreme Court of Appeal ("the
SCA") where the agreements
were declared null and void
ab initio
with no legal force and effect.
Nuance was ordered to transfer the properties back to the plaintiffs
against return of the amounts
paid. When an attempt was made to
appeal the matter further, the Constitutional Court refused to grant
the plaintiffs leave to
appeal to that court against the SCA's order.
[9]
During the exchange of pleadings between
the parties, in the abovementioned matter, the plaintiffs became
aware of some relevant
facts pertinent to the financial information
of Centurus which was not disclosed to them. On the basis of the non
disclosure
of such information, which according to the plaintiffs was
adverse and ought to have been disclosed, the plaintiffs are now
suing
the defendants for damages; hence the matter before me.
[10]
The decision of the SCA and the
Constitutional Court, in this regard, was premised on the prescripts
of SALA.
[4]
The said provisions prohibited the subdivision of agricultural land
and the sale of a portion of agricultural land without the
prior
written permission of the Minister of Agriculture.
[11] The SCA, in
Stalwo v Wary Holdings (Pty) Ltd and
Another,
[5]
held that due to the provisions of
the Local Government Municipal Structures Act,
[6]
the properties like the lngwenya Properties did not constitute
agricultural land as defined in SALA. Nevertheless, the SCA's
decision
in this matter was reversed by the Constitutional Court in
Wary Holdings (Ply) Ltd and Another v
Stalwo (pty) Ltd,
[7]
where it was held that contracts for the sale or subdivision of
agricultural land were to be regarded as void if Ministerial
permission
had not been obtained prior to the conclusion of such
contracts.
[12]
Importantly, the lngwenya Agreements
were concluded after the decision of the SCA in
Stalwo
but before that decision was
reversed by the Constitutional Court.
THE NATURE OF THE PLAINTIFFS' CLAIM
[13]
In their particulars of claim, the
plaintiffs allege that, before and at the time of the conclusion of
the lngwenya Agreements the
defendants failed to disclose adverse
financial information about Centurus while the defendants owed the
plaintiffs a legal duty
to disclose that information. Such legal duty
is alleged on the basis of the fiduciary relationship said to exist
between the plaintiffs
and Centurus and Nuance; but for such
non-disclosure the plaintiffs would not have concluded the lngwenya
Agreements with Centurus
and Nuance, but rather with someone else,
namely, RCR; in which case the lngwenya Development would have been
successful, yielding
massive profits. The plaintiffs are, as a
result, claiming damages for the loss of such profits against the
defendants.
THE DISCUSSION
[14]
There are actually two matters before court, namely, an application
to amend the particulars
of claim and condonation for the late filing
of the replication against the first defendant group's pleas and
exceptions filed
by both defendant groups. The matters have been
enrolled for hearing on the special allocation. I deal hereunder with
the two matters
in turn.
Application to Amend the Particulars of Claim
and Condonation
[15]
I was informed at the commencement of the hearing that on 3 August
2018, the plaintiffs gave
notice of intention to amend their
particulars of claim and also filed replications to the pleas
delivered by both defendant groups.
The amendments were objected to.
The first defendant group filed a notice in terms of uniform rule 30
(2)
(b)
on the basis that the replication insofar as the first
defendant group was concerned was out of time. There was no objection
from
the second defendant group to the plaintiffs' replication to
their respective pleas.
[16]
The objections necessitated the
application to amend and condonation. In the application to amend,
the plaintiffs sought leave to
amend their particulars of claim in
the respect set out in paragraphs 1 and 2 of the notice of intention
to amend. In the application
for condonation leave to file the
plaintiffs' replication to the first defendant group's pleas was
sought.
[17]
Consequently, before me, plaintiffs'
counsel moved for the relief sought for leave to amend their
particulars of claim as set out
in paragraphs 1 and 2 of the notice
of intention to amend dated 8 August 2018. The plaintiffs also
tendered payment of costs occasioned
by the amendment on an unopposed
scale as well as costs of objection to paragraph 3 of the notice of
intention to amend which costs
are inclusive of costs of two counsel.
Counsel also moved for leave to file the replication against the
first defendant group,
out of time. As both applications were not
opposed by either of the defendant groups, I granted the relief
sought
by
the
plaintiffs.
The Exceptions
[18]
I shall deal hereunder with the
exceptions by the defendant groups in turn.
Exception by the First Defendant Group
[19]
The first defendant group's submission in respect of its first
exception is that the non-disclosures
alleged by the plaintiffs are
not casually linked to the non conclusion of an agreement
between the plaintiffs and RCR and
the plaintiffs' alleged loss of
profits.
[20] It is
contended on behalf of the first defendant group that the lngwenya
Agreements were void
ab initio
as they were concluded in
violation of the provisions of SALA and the illegal provisions were
not severable from the rest. As such,
so it is argued, none of the
parties to the agreements were bound to any other in terms thereof.
The plaintiffs were at all times
still free to enter into any
agreement with RCR.
[21] It is not in
dispute that the plaintiffs' claim is based on the
actio legis
Aquilae ,
for damages allegedly suffered due to the defendants'
failure to disclose adverse information about the financial position
of Centurus,
prior to or at the time of conclusion of the lngwenya
Agreements. The plaintiffs' case, in respect of the casual course of
events,
is that it was the conclusion of the lngwenya Agreements with
the first two defendants that caused the non-conclusion of the
agreements
with RCR and the damages.
[22] I am in
agreement with the argument by the first defendant group that the
reliance by the plaintiffs
on the argument of factual and legal
chronology of events in support of their argument that they could not
have concluded the agreements
with RCR is misplaced. The plaintiffs
want to rely first, on the fact that the agreements were concluded
after the SCA judgment
in
Stalwo,
before that judgment was
reversed by the Constitutional Court, and argue that the agreements
were valid by then. The SCA in
Stalwo,
as it can be
remembered, allowed for the sale and subdivision of agricultural land
without the prior written consent of the Minister
of Agriculture and
that decision was overturned by the Constitutional Court.
[23]
The Constitutional Court in reversing
the decision of the SCA was not restating the law. The law was and
has always been that the
proviso added to the definition of
"agriculturlal and" in section 1 of SALA was that
ministerial consent was an absolute
pre-requisite for validity.
[24]
An agreement that is void
ab
initio
or void from the outset is
unenforceable from the moment it is created.
[25]
The proviso in section 1 of SALA came
into effect on 31 October 1995 and the agreements were concluded in
September 2007 and February
2008 when the proviso was already in
operation. The fact that the SCA in
Stalwo
misinterpreted the provisions of
SALA did not in any way change the law as it stood then. It follows
that the agreements were at
all times void and without legal
consequence. I hold, as such, that it could not have been the
conclusion of the lngwenya Agreements
per
se
that stood in the way of another
deal and/or the deal that the plaintiffs could have concluded with
RCR. The exception must, therefore,
fail.
[26]
The second exception by the first
defendant group is that the plaintiffs' particulars of claim do not
disclose a basis for holding
that the alleged non disclosures
could have been wrongful.
[27]
Both defendant groups raise this
exception and I shall deal with it simultaneously. The defendants'
contention is that since the
plaintiffs' claim is for pure economic
loss in respect of omission, for an omission to be wrongful it must
be based on a legal
duty. As such, the argument is that the
plaintiffs ought to have alleged in their particulars of claim facts
to justify the conclusion
that the defendants had a legal duty to
disclose the adverse financial information. The submission is further
that the facts stated
by the plaintiffs in support of the legal duty
contended for do not justify the conclusion that the defendants were
under a legal
duty to prevent the plaintiffs from suffering economic
loss.
[28] Relying on
the judgment in
Minister of Finance
and Others v Gore N.O,
[8]
the plaintiffs' counsel argued that it is not necessary in the case
of a deliberate non disclosure, like in this instance,
to prove
wrongfulness, because fraudulent conduct is
prima
facie
wrongful. But, in
Orban
v Stead
[9]
the court held as follows:
"Fraud in relation to contract consists of
a pre-contractual representation of false fact ... Silence can also
amount to a
representation. A fraudulent non disclosure takes
place when a person is under a duty to disclose to another and fails
to
do so."
[29]
Similarly, in relation to negligent
non-disclosure, the full bench in
Mccann
v Goodall Group Operations (Pty) Ltd
[10]
concluded that:
"Silence or inaction as such cannot
constitute a misrepresentation of any kind unless there is a duty to
speak or act . . ."
[30]
From my understanding of the above
precepts it means that there can be no misrepresentation (fraudulent
conduct} the plaintiffs
seeks to rely on unless there is a duty to
disclose. It follows that in order to found a cause of action there
must be an allegation
in the particulars of claim that there was a
duty to disclose. The particulars of claim must also indicate all
facts which justify
the conclusion that the defendants had a duty to
disclose.
[31]
It follows, therefore, that in order to
succeed in the circumstances of this claim the plaintiffs must allege
a legal duty, that
is, a legal duty to disclose.
[32] In regard to
whether the submission is further that the facts stated by the
plaintiffs in support
of the legal duty contended for do not justify
the conclusion that the defendants were under a legal duty to prevent
the plaintiffs
from suffering economic loss, it is my view that the
facts pleaded are sufficient.
[33] It is trite
that an omission is wrongful only if there is a legal duty on the
defendant to prevent
the plaintiff from suffering pure economic loss.
The existence of the legal duty depends on a legal conclusion to that
effect being
made by the court. It is, thus, necessary for the
plaintiff to allege material facts which, if proved, will justify
such a legal
conclusion.
[34] It is not in
dispute that the plaintiffs' claim is based on an omission, that is,
failure to
disclose the adverse financial information. It is also not
disputed that to prove wrongfulness where there is an omission there
must have been a legal duty on the defendants, in this instance, the
legal duty to disclose. The parties are also in agreement
that the
plaintiffs ought to have pleaded facts which, if proved, will justify
such a legal conclusion. The plaintiffs have pleaded
such facts in
paragraph 30 of the amended particulars of claim but it is the
defendants' argument that such facts as pleaded by
the plaintiffs do
not justify the conclusion that the defendants had a duty to
disclose. The question, therefore, is whether the
facts pleaded by
the plaintiffs in paragraph 30 of the amended particulars of claim
justify the conclusion that the defendants
had a duty to disclose the
adverse financial information of Centurus.
[35] The court in
South African Hang and Paragliding
Association and Another v Bewick
[11]
held that
"Since wrongfulness is not presumed in the
case of an omission, a plaintiff who claims on this basis must plead
and prove facts
relied upon to support that essential allegation."
It was also held in
AB
Ventures Ltd v Siemens Ltd
[12]
that when the plaintiff claims fora
loss resulting from an omission or for pure economic loss, the
defendant’s legal duty
towards the plaintiff must be defined
and the breach alleged in the particulars of claim.
[36] The facts
pleaded in paragraph 30 of the amended particulars of claim are: that
the defendant's
knew of the adverse information and intentionally
omitted to disclose it to the plaintiffs; that the defendants were
either aware
of the adverse information or were negligent in not
being aware of the adverse financial information; there was a
fiduciary relationship
between the first and second plaintiffs on the
one hand and Centurus and Nuance on the other; and that the
information was only
accessible to defendants and, thus, within the
defendants' knowledge.
[37] It is common
cause that the plaintiffs amended their particulars of claim in an
attempt to cure
their failure not to plead facts that justify the
conclusion that the defendants had a duty to disclose the adverse
information.
The facts are pertinently set out in paragraph 30 of the
particulars of claim as amended. The defendants have, on the other
hand,
raised various grounds in argument why such facts do not
justify the conclusion why the defendants have a legal duty to
disclose
the adverse information. The question that would follow is
whether the facts provided in the amended particulars of claim cures
the complaint by the defendants.
[38] At this
stage of the proceedings I am expected to look at the defect inherent
in the particulars
of claim only. The particulars of claim,
especially paragraph 30 thereof, must be considered in isolation and
be accepted, for
purposes of the exception, that all the facts
mentioned by the plaintiffs as justifying the conclusion that the
defendants had
a legal duty to disclose the adverse information, are
correct and true. The facts as stated cannot for purposes of the
exception
be gainsaid.
[39] On the other
hand the grounds raised by the defendants in support of their
rejection of the facts
of the plaintiffs appear to me speculative in
nature, particularly as the proceedings are still at the exception
stage. The grounds
are to me, matters of evidence which can only be
considered after all the evidence have been led at trial.
[13]
The exception should in this regard not succeed.
Exception by the Second Defendant Group
[40] The first ground of the second
defendant group's first exception that the particulars of claim read
with the plaintiffs'
replication lacks essential averments to sustain
a cause of action in that the particulars of claim do not disclose a
basis for
the conclusion that there was a legal duty on each of the
defendants, and in particular the fifth and sixth defendants, to
disclose
the adverse financial information, was determined in
paragraphs [27] to [39] of this judgment.
[41] The second
ground is that the plaintiffs do not plead sufficient facts in their
particulars of
claim to justify the conclusion that they would have
entered into valid agreements with RCR. The contention is that in
order to
constitute a valid claim the plaintiffs ought to have
alleged in the plaintiffs' particulars of claim that the ministerial
consent
in terms of the SALA
[14]
would have been obtained before the conclusion of the agreements with
RCR,
alternatively
made
allegations showing that the RCR agreements would not have required
such ministerial consent.
[42] I am in
agreement with the second defendant group's proposition that the
terms of the postulated
agreements with RCR are an important part of
the plaintiffs' claim without which a link cannot be made to the
alleged wrongful
conduct to the plaintiffs' damages. The provisions
of sections 3 and 4 of SALA places an
onus
on the owner, the
plaintiffs in this instance, to obtain ministerial consent, prior to
entering into an agreement in the terms contained
in the lngwenya
Agreements. Therefore, if the terms of the agreements with RCR would
have been similar to the terms of the lngwenya
Agreements, prior
consent would have been required failing which the agreements would
have been void
ab initio.
Similarly, if the postulated
agreements' terms would have been materially different from the
lngwenya Agreements such terms should
also have been pleaded.
[43] The submission by
the plaintiffs that the terms will be disclosed during the discovery
process or when
evidence is led is not sustainable. The ministerial
consent is a pre-requisite for the conclusion of a valid agreement
for the
purposes of SALA. The permission should be obtained prior to
the conclusion of the agreement and cannot be obtained later. Failure
to make allegations of this nature is fatal to a pleading.
[44] The second
exception that the plaintiffs' particulars of claim read with the
plaintiffs' replication
are vague and embarrassing is firstly, on the
ground that the damages pleaded by the plaintiffs are based on a
comparison between
the position they would have been in had the
lngwenya Agreements been performed and their actual position; when in
fact the claim
should have been a calculation of the difference
between the plaintiffs' current position they would have been in had
they contracted
with a third party, RCR, in order to found a claim
based on delict.
[45]
The contention is that the manner in
which the calculations of damages are set out in the particulars of
claim appears to be based
on contractual damages. The plaintiffs in
their replication deny that their damages are founded in contract
whereas that is what
they appear to be contending for in their
particulars of claim. This, according to the defendants renders the
particulars of claim
contradictory and vague and embarrassing.
[46]
It is said that a litigant who sues on
contract sues to have his bargain or its equivalent in money or in
money and kind. The litigant
who sues on delict sues to recover the
loss which she/he has sustained because of the wrongful conduct of
another, in other words
that the amount by which his patrimony has
been diminished by such conduct should be restored to her/him.
[15]
[47]
The classical formulation of contractual
damages is to place the plaintiff in the position it would have been
in had the contract
been performed properly.
[16]
The delictual measure of damages on the other hand, allows the
plaintiff to recover from the defendant the amount by which its
patrimony was diminished as a result of the defendant's conduct.
[17]
[48]
It is not in dispute that the
plaintiffs’' claim for damages is based in delict. It is also
not in dispute that the method
of calculation used by the plaintiffs
is the comparative method of compensation according to the difference
between the actual
position that pertains and the position they would
have been in but for the defendants' conduct. According to the
plaintiffs' claim,
but for the conduct of the defendants they would
have concluded the agreements with RCR. Since the agreements
concluded with the
defendants having been declared void
ab
initio,
the position they are
contending for should be where they would have been had they entered
into the agreements with RCR. It is,
therefore, my opinion that in
order to found their claim in delict, the plaintiffs should have
claimed the difference between their
current position and the
position they would have been in had they contracted with RCR and not
the position they would have been
had the lngwenya Agreements been
performed. Having not done so, their particulars of claim are vague
and embarrassing and as such
do not disclose a cause of action.
[49]
The case of
Transnet
Limited v Sechaba Photoscan (Pty) Ltd
[18]
on which the plaintiffs want to rely in support of their argument
that they are entitled to claim for loss of profit does not assist
them because it is distinguishable from the present matter. What
differentiates the two cases is that in this instance the plaintiffs'
claim is premised on the failure of the defendants to disclose the
adverse information which resulted in them concluding the agreements
with what I can term the wrong party. The allegation is further that
but for such non-disclosure the plaintiffs would have entered
into
the agreements with the correct parties and as such the lngwenya
Project would have been successful. Whereas in
Sechaba
Photoscan
there was no third party
involved.
[50]
Secondly, the particulars of claim read
with the plaintiffs' replication are said to be vague and
embarrassing due to the fact that
the plaintiffs, in paragraph 27 of
the particulars of claim, allege that at all material times the
contractual relationship between
the plaintiffs and Centurus and
Nuance was governed by an implied duty of good faith which arose from
a contract that was declared
null and void. The contention, as such,
is that the pleadings are accordingly contradictory and vague and
embarrassing.
[51]
Having made a finding that the
contractual relationship between the parties was void from inception,
I have to find also that there
could not have been an implied duty of
good faith between the parties arising from such a contract. The
plaintiffs' reliance on
the contract in an attempt to postulate the
implied duty of faith that might have existed between the parties is
therefore, contradictory
and vague and embarrassing.
[52]
The plaintiffs' claim that the second
defendant group do not allege any embarrassment or that they have
already pleaded to the allegations
in paragraph 27 of the particulars
of claim and/or that the particularity of the allegations in
paragraph 27 of the particulars
of claim were provided to the
defendants in the reply to the request for further particulars, does
not assist their course. It
should be remembered that the exception
is brought at the stage when the plaintiffs have replicated to the
defendants pleas.
[53]
It is trite that an exception on the
ground of vagueness and embarrassment strikes at the formulation of
the cause of action. The
plaintiffs' cause of action must be properly
formulated when the particulars of claim and the replication are read
together. It
appears that the allegations in the particulars of claim
when read with the allegations in the replication are contradictory
and
thus render them vague and embarrassing. The embarrassment need
not be specifically alleged, but must be apparent when the two
pleadings are read together.
[54] Prejudice to
a litigant faced with an embarrassing pleading is said to lie
ultimately in an inability
to prepare properly to meet an opponent's
case.
[19]
This does not necessarily mean having to plead to the particulars of
claim as the plaintiffs want to suggest. In this instance,
it is
obvious that the defendants have already pleaded but they will still
have to prepare for trial. With the contradictions occasioned
by the
replication when read with the particulars of claim it is clear that
the defendants would be prejudiced in their preparations
for trial.
The exception is, thus, well taken and should be upheld.
CONCLUSION
[55]
The defendants are substantially
successful and are entitled to the relief they seek except in respect
of the first defendant group's
second exception and the first ground
of the second defendant group's first exception.
[56]
In their heads of argument the first
defendant group prays for an order in the following terms:
56.1
That the exception be held with costs;
56.2
That the plaintiffs' Amended Particulars
of Claim be struck down;
56.3
That the plaintiffs be afforded a period
of twenty (20) days within which to further amend their Amended
Particulars of Claim, failing
which the first defendant group may
approach the court for an order dismissing the action with costs.
[57]
The second defendant group, on the other
hand, in their heads of argument, pray for an order that the
exceptions be upheld with
costs, including costs occasioned by the
employment of two counsel (where so employed).
[58]
I am of the view that the plaintiffs
should be afforded an opportunity to amend their particulars of
claim.
ORDER
[59]
Consequently, I make the following
order:
1.
Leave
to amend the plaintiffs' particulars of claim as set out in prayer 1
and 2 of the notice of intention to amend dated 3 August
2018, is
granted.
2.
The
plaintiffs are ordered, jointly and severally, to pay the costs
occasioned by the amendment on an unopposed scale as well as
costs of
objection to paragraph 3 of the notice of intention to amend.
3.
The
costs mentioned in paragraph 2 of this order shall be inclusive of
costs of two counsel.
4.
The
first exception of the first, second, third, fourth, seventh and
eighth defendants is upheld and the second exception is refused.
5.
The
exceptions by the fifth and sixth defendants are upheld and the first
ground of the first exception is refused.
6.
The
plaintiffs are granted leave to amend their particulars of claim
within twenty (20) days of this order.
7.
The
plaintiffs are ordered, jointly and severally, to pay the costs
occasioned by the exceptions, to the defendants. Such costs
to
include costs occasioned by the employment of two counsel (where so
employed).
E.M. KUBUSHI
JUDGE OF THE HIGH COURT
Appearance:
Plaintiffs' Counsel
:
Adv Azhar Bham, SC
Plaintiffs'
Attorneys
: Knowles Husain Lindsay Inc
c/o
Friedland Hart Solomon & Nicolson
First
Defendant Group's Counsel
:
Adv L. D. Maritz, SC
Adv
L Uys
First
Defendant Group's Attorneys
:
Savage Jooste and Adams Attorney
Second Defendant Group's Counsel
: Adv Stephen Vivian, SC
Second Defendant Group's Attorneys
:
Horak Incorporated Attorneys
Date of
hearing
: 19 November 2018
Date of
judgment
: 15 May 2019
[1]
Act 70 of 1970.
[2]
The detail of the Agreements and their terms are set out in the
plaintiff s particulars of claim. The three Agreements are the
Sale
Agreement concluded on 21 November 2007; the Development Agreement
concluded on 21 November 2007 and the lngwenya Lease
Agreement
concluded on 15 February 2008.
[3]
Act 70 of 1970 .
[4]
Section s 3 (a) and 3 (e) (i) thereof.
[5]
2008 (1) SA 654 (SCA).
[6]
Act 117 of 1998.
[7]
2009 (1) SA 337 (CC).
[8]
2007 (1) SA 111
(SCA) pars 81 to 90.
[9]
1978 (2) SA 713
(W) at 717E -G .
[10]
1995 (2) SA 718
(C) at 7260.
[11]
2015 (3) SA 449
(SCA) para 6.
[12]
2011(4) SA 61 4 (SCA).
[13]
See Cape Empowerment Trust v Fisher Hoffman Slthole 2013 (5) SA 183
(SCA).
[14]
Act 70 of 1970.
[15]
See LAWSA Vol 7 Erasmus and Gaunlett para 65 and Visser and
Potgieter Law of Damages 3r d ed at 428
[16]
See Holmdene Brickworks v Roberts Construction
1977 (3) SA 670
(A)
at 687C.
[17]
See Christie's Law of Contract in South Africa, 7th ed pages 344 to
348.
[18]
2005 (1) SA 299 (SCA).
[19]
See Standard bank of SA Limited v Hunkydory Inv. 194 (Pty) Limited
(No.1)
2010 (1) SA 627
(C) para 9 & 10 .