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[2018] ZAGPJHC 519
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Win Twice Properties (Pty) Ltd v Capitulo Entertainment (Pty) Ltd t/a Galaxy World and Others (33426/2017) [2018] ZAGPJHC 519 (7 September 2018)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION,
JOHANNESBURG
CASE NO: 33426/2017
In the matter
between:
WIN
TWICE PROPERTIES (PTY)
LTD
Plaintiff
and
CAPITULO
ENTERTAINMENT (PTY) LTD
t/a
GALAXY
WORLD
First
Defendant
WOLF-DRIETRICH
FRITZ
SEITZ
Second
Defendant
LESLIE
COHEN
Third
Defendant
J U D G M E N T
MAHALELO,
J
:
[1] The defendants brought an
exception against the plaintiff’s particulars of claim on the
basis that same is vague and embarrassing
alternatively lacks
averments which are necessary to sustain a cause of action. The
plaintiff’s claim is for damages for
the breach of a written
lease agreement (“
the lease agreement
”). The
exception consists of four grounds all taken as to vagueness and
embarrassment alternatively, on a failure to disclose
a cause of
action.
THE
LAW
[2] It is a basic principle that
particulars of claim should be so phrased that the defendant may
reasonably and fairly be required
to plead thereto. It is also trite
that the object of pleadings is to enable each side to come to trial
prepared to meet the case
of the other and not to be taken by
surprise. Pleadings must therefore be lucid, logical, in an
intelligible form and the cause
of action must appear clearly from
the factual allegations made.
[3]
A pleading may be vague if it fails to provide the degree of detail
necessary in a particular case properly to inform the other
party of
the case being advanced.
[1]
The typical prejudice which justifies an exception is if allegations
in the particulars of claim are such that the defendant
is unable to
plead properly.
[2]
[3]
In
Inzinger
v Hofmeyr and Others
[3]
it was said that:
“
4. An exception that a
pleading is vague and embarrassing strikes at the formulation of the
cause of action and its legal validity.
It is not directed at a
particular paragraph within a cause of action but at the cause of
action as a whole, which must be demonstrated
to be vague and
embarrassing. As was stated in Jowell v Bramwell-Jones and
Others
1998 (1) SA 83
(W) at 905E-H:
‘
I
must first ask whether the exception goes to the heart of the claim
and, if so, whether it is vague and embarrassing to the extent
that
the defendant does not know the claim he has to meet ...’
Vagueness
amounting to embarrassment and embarrassment in turn resulting in
prejudice must be shown. Vagueness would invariably
be caused by a
defect or incompleteness in the formulation and is therefore not
limited to an absence of the necessary allegations
but also extends
to the way in which it is formulated. An exception will not be
allowed, even if it is vague and embarrassing unless
the excipient
will be seriously prejudiced if compelled to plead against which the
objection lies.
”
[4]
The evaluation of prejudice is a factual enquiry, and is a question
of degree. The decision must necessarily be influenced by
the nature
of the allegations, their content, the nature of the claim and the
relationship between the parties.
[4]
[5] In
Jowell v Bramwell-Jones
the court referred to the following general principles insofar as
exceptions are concerned:
“
(a) minor blemishes are
irrelevant,
(b) pleadings must be read as a
whole, no paragraph can be read in isolation,
(c) a distinction must be drawn
between the facta probanda, or primary factual allegations which
every plaintiff must make, and
the facta probantia, which are the
secondary allegations upon which the plaintiff will rely in support
of his primary factual allegations.
Generally speaking, the latter
are matters for particulars for trial and even then are limited. For
the rest, they are matters
for evidence,
(d) only facts need be pleaded,
conclusions of law need not be pleaded,
(e)
bound up with the last-mentioned consideration is that certain
allegations expressly made may carry with them implied allegations
and the pleading must be so read:
…”
[6]
As to pleadings disclosing no cause of action Griesel J stated in
Frank
v Premier Hangers CC
[5]
that:
“
[11] In order to succeed in
its exception, the plaintiff has the onus to persuade the court that,
upon every interpretation which
the defendant’s plea and
counterclaim can reasonably bear, no defence or cause of action is
disclosed. Failing this, the
exception ought not to be upheld.
”
[7]
In
Vermeulen
v Goose Valley Investments (Pty) Ltd
[6]
Marais JA stated as follows at para [7] page 997:
“
[7] It is trite law that an
exception that a cause of action is not disclosed by a pleading
cannot succeed unless it be 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.
”
FIRST
GROUND OF EXCEPTION
[8] The plaintiff’s cause of
action is based on the alleged breach of a term of the lease
agreement. In paragraph 12
of plaintiff’s particulars of
claim the plaintiff alleges that the first defendant “
failed
to deliver the leased premises to the plaintiff in the same good
order and condition as it existed at the beneficial occupation
date
and failed to reinstate the leased premises on the vacating of the
premises, as set out in Annexure E to the Lease Agreement
and also as
set out in clause 12.2.7 of the Lease
”.
[9]
The defendants ‘contend that the plaintiff failed to set out
any details pertaining to the first defendant’s alleged
breach;
including but not limited to the manner in which the leased premises
had not been restored in the same good order and condition
as existed
at the beneficial occupation date and the manner in which the first
defendant failed to reinstate the leased premises
on vacating
thereof. It is trite that a lessor who claims damages on the
basis of the lessee’s failure to return the
leased premises in
the condition in which it was delivered must show that the leased
property has become damaged during the period
of the lessee’s
tenancy.
[7]
In my view paragraph 12 of the plaintiff’s particulars of claim
contains a breach relied upon by the plaintiff. Therefore,
the
breach/es must be pleaded with clarity and it should not be for the
defendant to analyse the annexures to the particulars of
claim to
identify the factual basis for the conclusions pleaded in paragraph
12. The defendants are embarrassed as they cannot
ascertain the facts
relied upon, from the pleading. The defendants are accordingly
prejudiced in pleading thereto. I thus
find that the allegations
pleaded in paragraph 12 of plaintiff’s particulars of claim are
vague and embarrassing to the extent
referred to herein.
SECOND
GROUND OF EXCEPTION
[10] The second ground of exception
reads as follows:
“
2.1 The plaintiff avers in
paragraph 13 that it elected to have the first defendant remove the
ceiling which the defendant failed
to do.
2.2 The plaintiff does not identify
which defendant failed to remove the ceiling.
2.3 The plaintiff does not specify
when it elected to have the first defendant remove the ceiling.
2.4 The plaintiff does not specify
how it elected to have the first defendant remove the ceiling.
2.5 The plaintiff does not specify
where it elected to have the first defendant remove the ceiling.
2.6 The plaintiff does not specify
whether this election was oral or in writing, when it elected to have
the first defendant remove
the ceiling.
2.7 If this election was in
writing, the plaintiff failed to attach a copy of such writing making
the aforesaid election.
2.8 The plaintiff makes reference
to this election in paragraph 13 of its particulars of claim in
circumstances where annexure D
makes reference to the obligation on
the part of the plaintiff to discuss and confirm any issues
pertaining to the ceilings.
2.9
In the circumstances the election relied upon by the plaintiff is not
borne out by the necessary clause in the agreement which
requires
discussion and confirmation.
”
[11] There is merit in this
exception. It is no defence to say that the lack of
particularity will be cured by requesting
further particulars for
purposes of trial. A defendant is obliged to admit, deny or
confess and avoid the averments made
by the plaintiff in its
particulars of claim. The plaintiff has supplied insufficient
particulars so that paragraph 13 is vague
and embarrassing and
prejudice the defendants in so far as they will be unable to plead.
THIRD
GROUND OF EXCEPTION
[12] The plaintiff in paragraph 14 of
its particulars of claim makes reference to “
occupation
date
”. The first defendant contends that its
obligation in terms of clause 12.2.7 of the Lease Agreement is to
restore the
leased premises to the plaintiff in the same good order
and condition as they were at the beneficial occupation date and not
simply
the occupation date. There is no merit in this
exception. Reading the pleading as a whole it becomes clear that what
is alleged
in paragraph 14 is that the first defendant failed to
restore the leased premises in the same good order and condition as
they
were at the beneficial occupation date. The plaintiff will
have to lead evidence at the trial to clarify the correct terms
of
the Lease Agreement. This ground of exception is accordingly
dismissed.
FOURTH
GROUND OF EXCEPTION
[13] The plaintiff in paragraph 15
avers that it suffered damages in the sum of R374 591.65 in that
it had to restore and reinstate
the premises to the same good order
and condition as existed at the occupation date. The plaintiff
sets out the manner in
which the amount is calculated. In
clause 12.2.7 of the Lease Agreement, the first defendant’s
obligation is to make
payment of the reasonable costs of restoring
the leased premises to the same condition in which they were at
beneficial occupation
date. The first defendant contends that the
plaintiff failed to aver that the damages claimed constitute
reasonable costs of restoring
the leased premises. Further that in
the absence of allegations by the plaintiff linking the breach to the
loss with sufficient
particularity, the plaintiff has failed to plead
a viable cause of action.
[14] This ground of exception is
linked to the first ground in that the plaintiff failed to plead with
sufficient particularity
the breach relied upon. In my view the
plaintiff has also failed to link the alleged breach to the alleged
loss or damages
suffered. I find the pleading to be vague and
embarrassing to the extent of causing prejudice on the defendants. As
to the
reasonable costs, the plaintiff has pleaded the actual costs
of damages it allegedly suffered. The reasonableness of the damages
claimed is a matter for evidence to be led at trial.
ORDER
[15] In the result:
15.1 The exception is upheld in
respect of paragraphs 12, 13 and 15 of the plaintiff’s
particulars of claim and those paragraphs
are hereby struck out.
15.2 The plaintiff is granted leave to
amend its particulars of claim within 15 days of this order, if so
advised.
15.3 The plaintiff is to pay the costs
of the exception.
________________________________________
M B MAHALELO
JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION,
JOHANNESBURG
APPEARANCES:
For Excipient/Defendant: Adv MacManus
For Respondent/Plaintiff: Adv A D
Schluep
Date heard on: 15 June 2018
Judgment delivered: 07September 2018
[1]
Lockhat
v Minister of Interior
1960 (3) SA 765 (D).
[2]
Lockhat
supra
.
[3]
(7575/2010)
[2010] ZAGPJHC 104 (4 November 2010) at paras 4 and 5.
[4]
ABSA
Bank Ltd v Boksburg Transitional Local Council
1997 (2) SA 415 (W).
[5]
2008
(3) SA 594 (C).
[6]
2001
(3) SA 986 (SCA).
[7]
Nel
v Dobie
1966 (3) SA 352
(N).