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[2019] ZAFSHC 152
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Devostep (Pty) Ltd v Kramer and Others (5724/2017) [2019] ZAFSHC 152 (12 September 2019)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5724/2017
In
the matter between:
DEVOSTEP
(PTY)
LTD
Plaintiff
And
JOHANNES ANDREAS
KRAMER
1
st
Defendant
PETRUS JOHANNES
JOUBERT
2
nd
Defendant
JAQUES
NORTJE
3
rd
Defendant
JACOBUS LODEWYK
WEIHMANN
4
th
Defendant
HEARD
ON:
30
AUGUST 2019
JUDGMENT
BY:
VOGES,
AJ
DELIVERED ON:
12
SEPTEMBER 2019
[1]
For ease of reference I will refer to the parties as they are
referred to in the main action.
[2]
The four Defendants (excipients) raised two exceptions, dated 6 March
2019 and 22 May 2019 to the Plaintiff’s particulars
of claim on
the basis that the summons and appendices are vague and embarrassing
and do not disclose a cause of action.
[3]
By the nature of exception proceedings the correctness of the facts
averred in the pleading must be assumed. Refer
Theunissen
v Transvaalse Lewendehawe Koöp Bpk
1988 (2) SA 493
(AA) at 498D.
[4]
The excipient must satisfy the court that even with such an
assumption, the pleading is vague and embarrassing and does not
disclose a cause of action.
[5]
The following appears from the plaintiff’s particulars of
claim:
1. The Plaintiff and the
four defendants concluded a written agreement of sale on 21 January
2015.
2. The Plaintiff
purchased the property described as The Farm Joy No 1401, District
Bloemfontein for the sum of R9 000 000.00
3. At the time of the
conclusion of the agreement of sale the Defendants were aware that
the Plaintiff purchased the property with
the intention of developing
the property and erecting not less than 75 residential units on it
for re-sale at a profit.
4. The purchase price was
payable by way of an initial deposit of R500 000.00 with the balance
payable in instalments against registration
of transfer pursuant to
the sale of the first fifty (50) units developed on the property.
5. The plaintiff was
obliged to pay occupational interest at the rate of R25 000.00 per
month from 1 April 2014 to date of payment
of the full purchase
price, such occupational interest to diminish pro rata.
6. The agreement was
subject to certain conditions relating to the development of the
property.
7. The plaintiff paid the
deposit of R500 000.00 within the period provided and commenced
payment of occupational interest, as provided.
8. On 12 May 2015 the
defendants, represented by the second Defendant, in writing:
(a) Falsely represented
that the plaintiff no longer desired to proceed with the purchase of
the property;
(b) Falsely represented
that the Plaintiff requested cancellation of the agreement of sale;
and
(c) Informed the
Plaintiff that they regarded the agreement of sale as cancelled.
9. The above constituted
repudiation by the Defendants of the agreement, which repudiation was
confirmed by the Defendants selling
the property to a third party.
10. The Plaintiff “had
no option but to accept the repudiation and the agreement has
accordingly been cancelled/unlawfully
terminated”
[6]
As a result of the Defendants conduct the Plaintiff had been unable
to develop the aforesaid property and claims the following:
(a)
Repayment of the deposit in the sum of R500 000.00
(b)
Repayment of all occupational interest paid by the Plaintiff
(c)
Reimbursement of costs putatively incurred in the sum of R850 000.00
(d)
Damages (loss of intended profits) in the sum of R15 165 064.00
(e)
Interest on the aforesaid amounts,
a
tempore morae
(f)
Costs of suit
[7]
During argument in this matter the Defendants did not persist with
the objections raised in paragraphs 1 to 3 of the (first)
exception.
[8]
In the remainder of their notice of exception of 6 March 2019 the
Defendants set out the cause of their complaint as follows:
4. Clause 5.1 of Annexure
“A” moreover records: “… die koper sal
in besit en okkupasie van die eiendom
geplaas word op datum van
registrasie van transport vry van enige huurkontrak, vanaf welke
datum dit op die algehele risiko, wins
of verlies van die koper sal
wees.
5. This clause thus
prefigures that the Plaintiff would obtain occupation of the property
on the date of registration. The Plaintiff
does not allege otherwise
when and indeed if it had taken occupation of the property.
6. Clause 6.1 however
indicates that the occupational interest would be paid from 1 April
2014 – the contract having been
signed on 21 January 2015.
7. The Particular of
Claim does not deal with this dichotomy in any way, and the Plaintiff
certainly does not plead upon what basis
he then: (1) became
liable to pay occupational interest: and (2) why this was
necessary given the provisions of clause
5.1 and the fact that the
property had – according to the Plaintiff – never been
transferred.
8. Para 19 of the
Particulars of Claim alleges that due to the Defendants’
conduct the Plaintiff has suffered damages in the
amount of R15 165
064 calculated as per appendix C.
9. Appendix C however
does not sufficiently and clearly set out how indeed the Plaintiff’s
calculation is done, or on what
basis the aggregate of the alleged
damages suffered amounts to R15 165 064.00.
10. The Plaintiff further
alleges that it suffered damages in respect of putative costs in
pursuit of the intended developments
(presumably as indicated in para
17) to the sum total of R850 000.00. These damages are however
not properly set out in compliance
with the provisions of Rule 18.
[9]
In the notice of 22 May 2019 the Defendants, on the basis that the
Plaintiff’s claim does not disclose a
cause of action
,
set out their complaint as follows:
1. The Plaintiff alleges
that the parties had concluded a valid and binding written agreement
for the sale of the property described
in “Annexure “A”
to the particulars of claim;
2. The Merx is immovable
property
3. Annexure “A”
to the Particulars of Claim was however not signed by one of the
Defendants.
4. The deed of alienation
does not comply with the provisions of
Section 2(1)
of the
Alienation
of Land Act, 68 of 1981
and is void.
[10]
The Defendants, as excipients, have to show that the pleading is
excipiable on every interpretation that can reasonably be
attached to
it:
Theunissen en Andere v Transvaalse Lewendehawe Koöp
Bpk,
supra at 500E-F.
[11]
A charitable test is used on exception in deciding whether a
cause
of action
is established and the pleader is entitled to a
benevolent interpretation. The test is less charitable
where
vagueness and embarrassment
is the basis of an exception
(
First National Bank of Southern Africa Ltd v Perry NO
and others
2001 (3) SA 960
(SCA) at 972I.
[12]
Defendants’ first exception is not directed at the entire cause
of action being vague and embarrassing. The complaint
is mainly
against the claim of R850 000.00 for putative damages.
[13]
According to Erasmus, Superior Court Practice D1-295 an exception
cannot be taken to a declaration or particulars of claim
on the
ground that it does not support one of several claims arising out of
one cause of action.
[14]
Rule 23
(1) prescribes:
“
Where
any pleading is vague and embarrassing or lacks averments which are
necessary to sustain an action or defence, as the case
may be, the
opposing party may, 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 that where a party intends to take an exception that a
pleading is vague and embarrassing he shall within the period
allowed
as aforesaid by notice afford his opponent an opportunity of removing
the cause of complaint within 15 days: Provided
further that
the party excepting shall within 10 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”.
See
:
First National Bank of Southern Africa Ltd v Perry NO
and others
, supra at 972J – 973A.
[15]
There is no indication that the exception of 6 March 2019 was
preceded by a notice affording the Plaintiff the opportunity
of
removing the cause of their complaint. Accordingly I am of the
opinion that the exception taken against the relief sought
on the
basis of being vague and embarrassing was ill-taken. This is
however of little consequence in light of what follows
infra.
[16]
As to the second exception - that the Plaintiff’s claim does
not establish a
cause of action
- the Defendants rely on the
fact that the original deed of sale was only signed by three of the
four defendants (co-owners).
It was therefore null and void and
no rights could have been derived from it. As the Plaintiff did not
claim for relief in terms
of
Section 28
of the Alienation of Land
act, 68 of 1981it was argued that the Particulars of Claim should be
struck out, alternatively that leave
should be granted to amend in
order for the Plaintiff to claim in terms of
section 28.
[17]
The Plaintiff contended that
Section 28
is not applicable in that the
Plaintiff is not seeking transfer of the property but damages.
[18]
Section 2
(1) of Act 68 of 1981 provides as follows:
“
No
alienation of land after the commencement of this section shall,
subject to the provisions of section 28, be of any force or
effect
unless it is contained in a deed of alienation signed by the parties
thereto or by their agents acting on their written
authority”.
[19]
Section 28 reads:
“
Subject
to the provisions of subsection (2), any person who has performed
partially or in full in terms of an alienation of land
which is of no
force or effect in terms of section 2(1), or a contract which has
been declared void in terms of the provisions
of section 14(1)(c), or
has been cancelled under this Act, is entitled to recover from the
other party that which he has performed
under the alienation or
contract, and –
(a)
The
alienee may in addition recover from the alienator –
(i)
Interest
at the prescribed rate on any payment that he made in terms of the
deed of alienation or contract from the date of the
payment to the
date of recovery;
(ii)
A
reasonable compensation for-
(aa) necessary
expenditure he has incurred, with or without the authority of the
owner or alienator of the land, in regard to the
preservation the
land or any improvement thereon; or
(bb) any improvement
which enhances the market value of the land and was effected by him
on the land with the express or implied
consent of the said owner or
alienator
The
above right of the alienee to claim repayment is subject to the
rights of the alienator in terms of section 28(1)(b) to recover
reasonable compensation for the occupation, use for enjoyment the
alienee may have had and compensation for any damage caused to
the
land by the alienee.
[20]
At the onset of this hearing the original deed of sale was available
and it was no longer contested that only three of the
co-owners have
signed the agreement.
[21]
It is clear that the agreement between the Plaintiff and the
Defendants was obliged to comply with the provisions of
section 2(1)
of the
Alienation of Land Act. The
signature of all the parties
thereto is a prerequisite for the agreement to be of any force or
effect. See:
Goldex 16 (Pty)Ltd v Dene Capper NO
and 2 others
, unreported SCA Case No 543/2018 delivered
on 4 September 2019.
[22]
As the Plaintiff’s particulars of claim are not based on
section 28(1)
, Act 68 of 1981 it does not disclose a cause of
action. The second exception of the Defendants goes to the root
of the claim
and must accordingly be upheld. When an exception
to a pleading is upheld the unsuccessful pleader is ordinarily given
the
opportunity to amend the pleading. See
Ocean Echo
Properties 327 CC and another v Old Mutual Life Assurance Company
(South Africa) Ltd
2018 (3) SA 405
(SCA) at par [8].
[23]
In deciding on the appropriate cost order, it must be borne in mind
that the Defendants were only partially successful in this
application. The second exception, that succeeded, was the more
substantial one. I am therefore of the opinion that
costs
should be awarded to the Defendants.
[24]
The following orders are made:
1. The
first exception of the Defendants is dismissed.
2. The
second exception is upheld.
3. The Plaintiff is
granted leave to amend his particulars of claim within 21 days from
date of this order.
4. The plaintiff must pay
the defendants’ costs.
____________
M.
VOGES, AJ
On
behalf of Plaintiff: Adv. S. Grobler (SC)
Instructed
by: Kramer Weihmann & Joubert
Bloemfontein
On
behalf of
Defendants
:
Adv. A. J Troskie (SC)
Instructed
by: Stander Venter & Green
Bloemfontein