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[2019] ZANCHC 28
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Kemp v Business Partners Ltd (232/2018) [2019] ZANCHC 28 (28 June 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE HIGH COURT, KIMBERLEY)
CASE
NO.: 232/2018
Date
heard: 02-11-2018
Date
delivered: 28-06-2019
In
the matter between:
Petrus Johannes
Kemp
Plaintiff
And
Business
Partners Ltd
Defendant
CORAM:
WILLIAMS J:
JUDGMENT
WILLIAMS
J:
1.
The
plaintiff, Mr Petrus Johannes Kemp, has instituted an action against
the defendant, Business Partners Ltd, wherein he claims
for the
setting aside of the judgment under case no 985/2008 to the amount of
R315 011.14 and certain orders in respect of costs.
2.
The
defendant had obtained judgment in the amount of R890 229.63
against the plaintiff in the action under case no 985/2008
on 19 June
2017. An application for leave to appeal against this judgement
was refused by the trial court (Coetzee AJ) on
8 September 2017.
An application to the Supreme Court of Appeal for leave to appeal was
similarly refused on 8 November 2017.
3.
The
plaintiff contends
in
casu
that the defendant’s legal representatives had failed to
disclose to the trial court, in circumstances where there was a
legal
duty upon them to do so, that the certificates of balance which were
provided by the defendant and received in evidence at
the trial, were
incorrect and did not reflect the correct amounts owed to the
defendant. The plaintiff alleges that the defendant
furthermore
failed to disclose this fact during argument in the application for
leave to appeal neither did it do so in its opposing
papers in the
application to the Supreme Court of Appeal.
4.
The
plaintiff in its particulars of claim alleges that the certificates
of balance included amounts in respect of legal fees of
the
defendant’s attorneys which were erroneously debited to the
account and the concomitant additional interest relating
to the
erroneous debits.
5.
The
defendant filed its plea to the particulars of claim on 17 April 2018
whereafter the plaintiff noted an exception to the plea
on the basis
that it is vague and embarrassing and lacks the necessary averments
to sustain a defence against the plaintiff’s
claim.
6.
The
first exception
taken
is to paragraphs 3 to 9 of the plea and it is couched as follows:
“
1.1
Plaintiff contends that Defendant’s Plea does not comply with
the requirements of Rule 18(4) and 18(5) of
the Uniform Rules of
Court in so far as the Defendant denies all the allegations contained
in the Particulars of Claim, which is
not admitted in the Plea,
without identifying and dealing with each and every allegation
succinctly, as required by the said rule.
1.2
It is impossible to ascertain from the Defendant’s allegations
which facts are in fact disputed, since
the Plea is couched in the
form of an Answering Affidavit.
1.3
The Defendant pleads evidence, but fails and or neglects to answer
the points of substance, which makes the
Plea vague and embarrassing
and further makes it impossible for the Plaintiff to reply thereto.”
7.
In
order to contextualise this ground of exception and the others
following, it is necessary to comment on the manner or style with
which the plea was drafted. The plea does not follow the
customary form which has been the practice for very many years and
hopefully will be for very many years to come. This particular
plea does not, as is the norm, address the allegations in
the
particulars of claim under headings such as “
Ad
paras 1to 4 thereof”
and then proceed to either admit, deny or confess and avoid the
allegations made in those paragraphs of the particulars of claim
referred to. Instead the plea in most part consists of a
narration of the defendant’s version of events, with reference
in bold type to the paragraphs in the particulars of claim the
narrative has reference to.
8.
This
type of pleading can be confusing in that it does not deal
specifically and consecutively with the allegations contained in
each
paragraph of the particulars of claim as is the norm, resulting in a
somewhat time consuming undertaking to determine exactly
what has
been placed in issue.
9.
Mr
Tredoux, who appeared for the defendant and is also the author of the
plea, explains this as a new way of pleading which he has
adopted
after reading Rose W: Pleadings without Tears, 7
th
edition. The contention is that there is no Rule which requires
a plea to be framed in the style we have become accustomed
to, as
long as the plea answers the point of substance, admits or denies or
confesses and avoids all the material facts and clearly
and concisely
state all material facts upon which the defendant relies. While
the above proposition cannot be faulted, the
plea under discussion
certainly does not tick all the boxes. It is certainly not to
the point and concise.
10.
Furthermore
the plea contains a number of irrelevant facts – which do not
appear to be material to any disclosed cause of
action and of which
the plea to paragraph 3 of the particulars of claim is a prime
example.
11.
Paragraphs
3 of the particulars of claim reads as follows:
“
The Defendant
instituted action under case number 985/2008 in the above Honourable
Court of the amount of R502 374, 56 (FIVE
HUNDRED AND TWO
THOUSAND THREE HUNDRED AND SEVENTY FOUR RAND FIFTY SIX CENT) and
ancillary relief, as surety, for Africa Unlimited
Safaris CC (the
first Defendant) which was liquidated during 2009.”
The plea to the above is
the following:
“
4.
4.1 On or about 2 May 2006 and at or near Cape Town
the Defendant and the close corporation
entered into a written
agreement of loan with each other.
4.2
In concluding the aforesaid agreement the Defendant was represented
by Pieter Barend Botha and/or Isaac Bernil
Strauss, while the
Plaintiff was represented by the Late Elizabeth Kemp.
4.3
A copy of the said Loan Agreement is attached to this Plea marked
“PLEA.1”.
4.4
In terms of the said Loan Agreement the Defendant undertook to lend
and advance the sum of R500 100.00 to
the close corporation, and the
latter undertook to repay the loan amount by way of 57 monthly
instalments of R11, 181 each, as
from 1 September 2016 along with
certain royalties calculated at 3.5% plus VAT, in arrears, calculated
on the actual or budgeted
monthly turnover was net of VAT or the
amount agreed to in annexure A2 to the standard conditions.
5
5.1 The Defendant duly discharged all of its
obligations under the Loan
Agreement and the close corporation became
liable to make payment to the Defendant of the monthly instalments
due in terms of the
Loan Agreement, and also the royalties which it
had agreed to pay.
5.2
The close corporation did not discharge its obligations which it owed
the Defendant punctually or at all and
it indeed breached the terms
of the Loan Agreement As at 25 June 2008 the close
corporation was substantially in arrears
in respect of both its
instalments on the Loan Agreement and the Royalty repayments.
5.3
As a consequence the Defendant instituted the action referred to in
paragraph 3
of the Particular of Claim in which it sued the
close corporation.
5.4
The Defendant also sued the late Elizabeth Kemp and the Plaintiff as
sureties for the obligations of the close
corporation.
5.5
Subject to the aforegoing the allegations contained in
paragraph 3
of the Particulars of Claim are admitted.
6.
6.1 All of the Defendants in the said action
entered appearances to defend.
6.2
The close corporation, however, has been liquidated; and
6.3
The late Elizabeth Kemp passed away.
6.4
In the result the trial proceeded against the Plaintiff only.”
12.
I do not
intend to overburden this judgment with a regurgitation of the entire
plea, suffice to say that the plaintiff has reason
to complain that
the plea does not comply with the requirements of Rules 18(4) and
18(5) which state the following:
“
18(4)
Every pleading shall contain a clear and concise statement of the
material
facts upon which the pleader relies 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.
18(5)
When in any pleading a party denies an allegation of fact in the
previous
pleading of the opposite party, he shall not do so
evasively, but shall answer the point of substance.”
13.
That being
said, non-compliance with the provisions of Rule 18 is deemed to be
an irregular step and is dealt with in accordance
with Rule 30,
unless such non-compliance also renders the pleading vague and
embarrassing, which would then entitle the aggrieved
party to the
choice of bringing an application under Rule 30 or raise an exception
in terms of Rule 23(1). Having chosen
the latter option, the
onus
is on the plaintiff as excipient to show vagueness amounting to
embarrassment and embarrassment amounting to prejudice. (See
Lockhat
and Others v Minister of the Interior
1960(3)
765 (DCLD) at 777 and authorities referred to therein). In
Leathern
v Tredoux
1911
NPD 346
, at 348, it was said that where a statement is vague, it is
either meaningless or capable of more than one meaning. It is
embarrassing in that it cannot be gathered from it what ground is
relied on and therefore it is also something which is insufficient
in
law to support in whole or in part the action or defence.
14.
Paragraphs
3 to 9 of the plea, although containing superfluous and irrelevant
matter are neither vague nor embarrassing in the sense
enunciated in
the case law. While the form of the plea may make a comparative
assessment with the particulars of claim cumbersome,
the paragraphs
under discussion refer specifically thereto that it is in answer to
the particulars of claim’s paragraphs
3 to 8 and answers all
points of substance contained therein. That being said,
paragraphs 7 to 9 of the plea sets out a history
of the previous
trial proceedings relevant to the defence raised and as such negates
a finding of it being vague and embarrassing.
(See
Du
Toit v Du Toit 1958(2) SA 354 (D).)
It
should also be guarded against assessing certain paragraphs of a
pleading in isolation without having regard to the complete
pleading,
from which the stance/defence of the defendant may be more fully
comprehended.
15.
In
my view nothing in these paragraphs prejudices the plaintiff to the
extent that he cannot reply thereto. One should also
not lose
from sight that this is an exception to a plea. The plaintiff
will only need to deliver a replication if he wishes
to plead fresh
facts in answer to the defendant’s plea.
16.
This
ground of exception in my view should accordingly fail.
17.
The
second ground of exception
relates
to paragraph 10 of the plea.
18.
Besides
the embellishment with which the allegations in paragraphs 9 and 10
of the particulars of claim are responded to and with
which I have
already dealt with in the preceding ground of exception, the
complaints with regard to paragraph 10 of the plea
are that it
contains contradictory allegations, one of which can be interpreted
to the effect that the defendant admits that its
legal
representatives were aware of the discrepancies in the certificates
and admits not having disclosed it to the court
a
quo
.
Therefore, the argument goes, the plea does not disclose a defence
against the plaintiff’s claim and should be struck
out.
19.
Paragraphs
9 and 10 of the particulars of claim state the following:
“
9.
At all material times and specifically on the date of trial, being
the 25
th
of October 2016 and the 26
th
of October 2016, the legal representatives of the Defendant were
aware that the certificates handed up on the first day of trial
by
the Defendant, were incorrect and did not reflect the correct amounts
allegedly due to the Defendant.
10.
The Defendant’s legal representatives, as officers of the
court, had a legal duty to disclose to the
court that the
certificates relied upon by the Defendant did not reflect the correct
amounts allegedly due and owing to the Defendant.”
20.
In response
hereto paragraph 10 of the plea reads as follows:
“
10.
10.1 It is admitted that the Certificates of Indebtedness,
which had been delivered 10 calendar day prior
to the trial were put
in evidence on 25 October 2016. To this extent the averments
contained in
paragraph
9
are admitted; the remaining allegations are denied.
10.2 In
amplification of the said denial die Defendant pleads that:
10.2.1
The Statement of Account which was attached to the certificates
clearly indicated
the manner in which the outstanding balance was
made up; and that
10.2.2
The first time the Defendant’s legal representatives became
aware of the
issue pertaining to the legal fees was when it was
raised by the Counsel for the Plaintiff.
10.2.3
The Plaintiff’s counsel specifically raised these alleged
irregularities
during the course of the trial and in so doing
expressly challenged the propriety of including the legal fees in the
outstanding
balance and contended that this was impermissible –
which was expressly raised with the Defendant’s witness.
10.2.4
The Plaintiff made submissions relating to the alleged irregular
inclusion of the
legal fees (1) at the trial; and (2) at the
subsequent application of Leave to Appeal; and the (3) the
application to the SCA for
Leave to Appeal;
10.2.5
Subject to the aforegoing the allegations contained in
paragraphs
9 & 10
are admitted.”
21.
The
complaints are (i) that it is unclear which allegations in paragraph
9 and 10 of the particulars of claim are admitted in view
of the
contradictory allegations in paragraph 10.1 and 10.2.5; and (ii) the
defendant’s denial in paragraph 10.1 that its
legal
representatives were aware at the trial that the certificates were
incorrect is contradicted by the apparent admission in
paragraph
10.2.2, that the defendant’s legal representations became aware
of the issue pertaining to the inclusion of legal
fees in the
statement reflecting the outstanding balance at the trial.
22.
With
regard to the alleged contradiction in paragraphs 10.1 and 10.2.2, it
is clear in my view that there is no contradiction.
Paragraph
10.2.2 of the plea does not admit to incorrectness of the
certificates, only to the issue or dispute thereof being raised
by
the plaintiff at the trial. As stated herein before, the plea
should be read as a whole and if that was done it would
have been
noted that the defendant, in paragraph 8 of the plea, specifically
states that the loan agreement permitted the defendant
to claim
payment of the fees on an attorney and own client basis (Read also
with paragraph 10.2.1 of the plea).
23.
It
is in this light also that paragraphs 10.1 and 10.2.5 should be
read. The argument that the plea does not disclose a defence
can thus not succeed. This ground of exception has no merit.
24.
The
third ground of exception
relates
to paragraph 11 of the plea, which is the defendant’s answer to
the allegations in paragraph 11 of the particulars
of claim.
25.
Paragraph
11 of the particulars of claim alleges that the defendant’s
legal representatives failed, refused or neglected to
disclose to the
court at the trial that the certificates relied upon to prove the
defendant’s quantum were incorrect in that
it included the
legal fees of the defendants’ attorneys of record, which were
erroneously debited to the account and/or included
additional
interest on amounts erroneously debited to the account. In its
plea the defendant responded by admitting that
its legal
representatives did not raise the issues pleaded in paragraph 11 of
the particulars of claim but that these issues were
expressly raised
by the plaintiff and submissions in this regard were made to the
trial court.
26.
The
complaint relating to paragraph 11 is that having admitted that the
defendant did not disclose to the court that the certificates
were
incorrect and should it be found that the defendant was aware of this
fact and had a duty to disclose such, then the defendant’s
plea
does not disclose a defence against the plaintiff’s claim.
This is clearly not a
proper ground of exception. The plea should on the face of it
not disclose a defence and the exception
cannot be premised on what
the court may or may not ultimately find. This ground of
exception must therefore fail.
27.
The
fourth exception
is
taken against paragraphs 12 and 13 of the plea which are in response
to paragraphs 12, 13 and 14 of the particulars of claim.
Paragraphs 12 and 13 of
the particulars of claim merely state the dates upon which the
applications for leave to appeal to the court
a quo
and the
Supreme Court of Appeal were heard/filed and refused. Paragraph
14 alleges that the defendant failed to disclose
to either of the
above-mentioned courts in the respective applications that the
certificates relied upon by the defendant were
incorrect.
28.
In
answer hereto the defendant admits in the offending paragraphs of the
plea that the applications referred to were heard/filed
and dismissed
on the dates alleged. The defendant pleads further that the
plaintiff had raised the issue of the computation
of the outstanding
balance as per the certificates of balance pertinent and expressly in
both applications and denies specifically
that the SCA was unaware of
the fact that the certificates were alleged to be incorrect.
29.
The
exception is taken on the basis that the plea is vague and
embarrassing in that the defendant pleads evidence but fails to admit
or deny the allegation that it failed to disclose the issue of the
alleged incorrect certificates.
30.
The
argument by the plaintiff in this regard again loses sight of the
plea as a whole and the stance by the defendant that the certificates
were not incorrect. The defendant, by not admitting or denying
its failure to disclose the dispute relating to the certificates,
is
deemed to have admitted the allegations of non-disclosure in terms of
Rule 22(3) – which is in accordance with what the
defendant has
pleaded from the outset. There can be nothing vague and
embarrassing about this. The evidence complained
about i.e. the
information which the plaintiff had placed before the courts at the
hearing of the respective applications, serves
to provide
justification for the admission of non-disclosure and is an example
of confessing and avoiding, which is permissible.
This ground
of exception also has no merit.
31.
The
fifth exception
relates
to paragraph 14 of the plea which deals with paragraph 15 of the
particulars of claim. Paragraph 15 of the particulars
of claim
reads as follows:
“
15.
However, on
15
September 2017
and only after the Plaintiff filed his Application for Leave to
Appeal to the Supreme Court of Appeal, the Defendant’s attorney
submitted a reconciliation of the account reflecting the amounts
erroneously debited to the principal debtor’s account, in
the
amount of at least
R315,
011.14 (THREE HUNDRED AND FIFTEEN THOUSAND AND ELEVEN RAND FOURTEEN
CENT
).
A copy of the reconciliation is attached hereto, marked as annexure
“
PJK3”.
”
32.
The
defendant in paragraph 14 of the plea, admits that it provided the
plaintiff with annexure “PJK3” and pleads that
the
document was provided in good faith for the purposes of settlement
negotiations and marked “
without
prejudice”.
’
The defendant further denies that the amounts were erroneously
debited and avers that the amount of R315 011,
14 is clearly
reflected in the document as amounts paid by or on behalf of the
principal debtor. Furthermore it is pleaded
that the amount set
out in annexure “PJK3” only reflects part of the
plaintiff’s indebtedness to the defendant.
33.
The
plaintiff complains that this paragraph in the plea is vague and
embarrassing in that it does not contain facts and that the
allegations are argumentative and contain evidence which is
inadmissible.
34.
When
one looks at the attached annexure however, it is clear that the
amount of R315.011.14 comprises credits to the account and
not debits
as alleged by the plaintiff. The plea in this regard can
therefore not be said to be argumentative or evidence
but is an
obvious fact which the defendant is allowed to plead.
This ground of exception
can therefore not stand.
35.
The
sixth and final exception
is
taken to paragraphs 16 and 17 of the plea which respond to paragraphs
18 and 19 of the particulars of claim. The complaints
are that
paragraph 16 is vague and embarrassing, and does not comply with Rule
18(4) since the allegations are argumentative and
constitute opinion
which is inadmissible. With regard to paragraph 17 the argument
is that paragraphs 17.3.1 to 17.3.4 do
not support defendant’s
conclusion that plaintiff is not entitled to the relief sought
without pleading specific facts to
sustain a defence of
res
iudicata
.
Although Mr Janse Van
Rensburg for the plaintiff had not dealt specifically with this
ground of exception during argument, it has
also not been withdrawn.
I therefore deal with it only briefly.
36.
Paragraphs
18 and 19 of the particulars of claim state the following:
“
18.
The Plaintiff immediately furnished security for the full amount of
the Judgment, pending finalization of this action.
19.
Had it not been for the Defendant and/or its legal representatives
conduct aforesaid and have the correct
facts been disclosed before or
during trial, the Plaintiff would not have proceeded to trial and
incurred the legal costs he had
to incur.”
37.
Paragraphs 16 and 17 of the plea reads as follows:
16.16.1
The Plaintiff pleads that he paid an amount of money into his
attorneys trust account.
16.2 The
Defendant denies that this constitutes the provision of adequate
security for the Defendant’s claims, and it
does not cause the
running of interest to be stopped.
16.3 The
remaining allegations in
paragraph
18
are
denied.
17.17.1
The allegations contained in
Paragraph
19
are denied.
17.2 In
amplification the Defendant refers to the facts and circumstances set
out hereinabove, and pleads that the Plaintiff
has not set out
sufficient averments in order to sustain a viable cause of action.
17.3 In
amplification the Defendant pleads that:
17.3.1
The Plaintiff was at all material times aware of the facts and
circumstances pleaded
in paragraph 11 of the Particulars of Claim,
which were expressly raised with the Trial Court and at the
application for leave
to appeal;
17.3.2
The Plaintiff himself caused the facts and circumstances referred to
in paragraph
11 of the Particulars of Claim to be brought to the
attention of the both the Trial Court and the SCA;
17.3.3
The Plaintiff, the trial Court and the SCA were thus at all material
times aware
of the alleged defects in the certificates;
17.3.4
In the premises the alleged non-disclosure cannot in law be relied
upon for the
purposes of setting aside the judgment of the trial
court or the decisions refusing the Plaintiff permission to appeal
against
said judgment.”
38. The
complaint relating to paragraph 16 does not need any further
discussion and I can merely refer to paragraph
13 herein above.
39.
With regards to paragraph 17 of the plea, I am not too clear about
the exact complaint. The defendant
has not pleaded
res
iudicata,
but rather that the plaintiff on his own version has
not made out a case for the setting aside of the judgment.
Which has
been pleaded throughout and is what paragraph 17
reiterates.
There is no merit in this
ground of exception.
In the premises the
following order is made.
The exceptions raised
by the plaintiff are dismissed with costs.
CC
WILLIAMS
JUDGE
For
Plaintiff:
Adv FG Janse Van Rensburg
Becker Berg & More
Inc
c/o Elliot Maris Wilmans
& Hay
For
Defendant: Adv P
Tredoux
Gillian & Veldhuizen
Inc
Engelsman Magabane Inc