About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2018
>>
[2018] ZAGPJHC 640
|
|
Mahlangu and Another v Millard (55439/2015) [2018] ZAGPJHC 640 (28 September 2018)
Links to summary
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO:
55439/2015
In
the matter between:
HANS
THEMBA MAHLANGU
First
Applicant / First Defendant
ROBERT
MADZONGA
Second
Applicant / Second Defendant
and
BRIAN
PERCIVAL DE THORPE
MILLARD
Respondent
/ Plaintiff
JUDGMENT
WEINER
J:
Background
[1] The plaintiff, (the
respondent in the exception) instituted action against the defendants
(the applicants in the exception),
based upon the repudiation and
breach of a written agreement entered into between the parties.
[2] The plaintiff alleges
that that he sold 50% of his members interest in a close corporation,
Thorpe House CC (the CC) to the
defendants, who failed to pay the
purchase price of R2.5 million.
[3] Plaintiff alleges
that, at all relevant times, it was within the contemplation of the
parties that the purchase price was to
be used, by the plaintiff, to
extinguish a judgment debt of the CC. It was further contemplated,
that if there was a breach by
the defendants, and they did not pay,
the plaintiff, as a member of the close corporation, would suffer
damages, as the property
of the CC would be sold in the execution.
[4] The plaintiff
averred, in the particulars of claim, that as the defendants did not
pay the purchase price, the plaintiff was
unable to utilise such sum
for the payment of the CC’s debt. As a result, the CC’s
property was sold in execution for
50% of its market value.
[5]
The plaintiff claims that the market value of the property was R5
million, but it was sold in execution for R2.5 million.
[6] The plaintiff
accordingly seeks damages on the basis that if the breach did not
occur, the CC would still own a property to
the value of R5 million.
As the holder of 50% of the members’ interest in the close
corporation, the plaintiff would have
had an asset valued at R2.5
million. Therefore he claims damages in the sum of R2.5 million.
The Exception
[7] The defendants
excepted to the plaintiff's particulars of claim. In such exception
they rely on clause 14.1 and 14.1.1 of the
agreement.
Clause 14.1 provides as
follows:
‘
Without
prejudice to any other rights of the purchasers, arising from any of
the provisions of this agreement, the seller indemnifies
the
purchasers against all loss, liability, damages or expense which the
purchasers may suffer as a result of, and which may be
attributed to:
14.1.1
any liability of the corporation, whether actual or contingent,
arising prior to the effective date:’
[8] The defendants filed
a notice in terms of rule 23 of the Uniform Rules of Court relating
to the plaintiff's particulars of claim.
The plaintiff submits that
the notice is irregular and furthermore that there is no merit in the
grounds of exception.
[9] The notice in terms
of rule 23(1) reads as follows:
‘
The
defendants hereby except to the particulars of claim of the plaintiff
in either being vague and embarrassing or failing to disclose
a cause
of action…’
[10] In paragraph 1.7 of
such notice, it is stated that the particulars of claim are vague and
embarrassing, alternatively, do not
establish a cause of action. The
defendants afford the plaintiff a period of 15 days from date of the
notice to remove the cause
of complaint in terms of rule 23(1)
‘failing which the defendant will set the matter down for
hearing’.
[11] Rule 23(1) provides
as follows:
‘
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 subrule (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 ten 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
.’ [Emphasis added]
[12] The plaintiff
contends that the defendants’ notice in terms of rule 23(1) did
not follow the provisions of rule 23(1).
The defendant has followed a
hybrid approach. On the one hand, the defendants state that the
particulars of claim are excipiable
as not disclosing a cause of
action. On the other hand, the notice affords the plaintiff 15 days
to remove the cause of complaint.
Furthermore the notice provided
that the exception will, after 15 days, be set down; whereas rule
23(1) contemplates the filing
of an exception only after a 15 day
period has elapsed.
[13] Rule 23(1) provides
that an exception made on the basis that a pleading is vague and
embarrassing, requires the excipient to
provide his counterpart with
15 days to remove the cause of complaint, before the excipient is
entitled to deliver an exception.
In the present case, the exception
was delivered simultaneously with the notice to remove cause of
complaint.
[14] The notice of
exception also includes the allegation that the particulars of claim
are vague and embarrassing, and, as a consequence,
the defendants
were not entitled to file an exception before the 15 day period
specified in the sub rule had elapsed.
[15] The plaintiff
accordingly submits that the failure to provide the plaintiff with 15
days’ notice to remove the cause
of complaint, before an
exception can be filed, renders the rule 23(1) notice irregular and
invalid.
[16] This appears to be
correct and the exception would have to be dismissed on that ground
alone.
Merits of the
Exception
[17] I am of the view
that the defendants also fail on the ground that the exception is bad
in law. I will accordingly deal with
it on this basis as well.
[18]
The defendants’ exception on the
merits is based on part of clause 14 of the agreement. The
plaintiff contends that
clause 14.1 read with clause 14.1.1 does not
deal with the situation where the plaintiff, as seller, claims
damages from the defendants,
as purchasers, in circumstances where
the defendants have breached the agreement.
[19]
Clause 14.1 specifically provides that the plaintiff/seller
indemnifies the defendants/purchasers against all loss, liability,
damage or expense which the defendants may suffer attributable to the
liability of the corporation, arising prior to the effective
date. In
the present instance, the plaintiff claims damages suffered by it,
not the purchaser.
[20]
This indemnification in clause 14, plaintiff argues, pertains to
damages suffered by the purchasers and attributable to a liability
of
the corporation. In the present case, the plaintiff claims the
damages suffered are attributable to the breach of the agreement
by
the defendants.
The
Legal Position
[21]
In order for a pleading to be deemed vague and embarrassing there are
two stages. Firstly, whether the pleading lacks
particularity
to the extent that it is vague and secondly, whether the vagueness
causes embarrassment of such a nature that the
excipient is
prejudiced.
[22]
In
Vermeulen v Goose Vally Investments (Pty) Ltd
Marais JA
held:
‘
[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
.
….the excipient (respondent) had to show that ….there
is no reason to suppose that any admissible evidence could
conceivably exist which would enable that [the identification]
to be done. In my view, the respondent failed to establish
that such
was the case ….and the exception should have been dismissed on
that ground alone.’
[1]
[Emphasis
added]
[23]
The test is firstly whether the exception goes to the heart of the
claim, that is, to the validity of the summons as a whole;
secondly,
whether it is vague and embarrassing to the extent that the defendant
does not know the claim he has to meet; and thirdly,
whether the
particulars identified by the defendant are strictly necessary in
order to plead and, if so, whether the material facts
are
unequivocally set out. See
Imprefed
(Pty) Limited v National Transport Commission.
[2]
[24]
The duties of an excipient were clearly defined in
L
ewis
v Oneanate (Pty) Ltd and Another
(344/91)
[1992] ZASCA 174
;
1992 (4) SA 811
(AD) at 817 F-G where it was held
‘
Since
these are proceedings on exception, it must be borne in mind that the
appellant has the duty as excipient to persuade the
Court that upon
every interpretation which the Particulars of Claim, including
Annexure “D”, can reasonably bear, no
cause of action is
disclosed.’
See also
Sun
Packaging (Pty Ltd v Vreulink
1996 (4)
176 (A
)
where the Court
stated:
‘…
an
excipient has the duty to persuade the court that upon every
interpretation which the pleadings in question, and in particular
the
document on which it is based, can reasonably bear no cause of action
… is disclosed; failing this the exception ought
not to be
upheld.’
[3]
[26]
The exception involves the interpretation of the contract.
At
exception stage, the pleading would only be excipiable on the basis
that no possible evidence could be led to establish plaintiff’s
claim. See
Vermeulen
v Goose Valley Investments (Pty) Ltd.
[4]
The excipient has not shown this; on the contrary, in my
view, the interpretation of the contract favours the plaintiff’s
interpretation.
[27] On this basis as
well, the exception must accordingly fail.
Accordingly the following
order is granted:
1.
The defendants’ exception is
dismissed with costs
____________________________
S.
WEINER
JUDGE OF THE HIGH COURT
GAUTENG LOCAL
DIVISION, JOHANNESBURG
Appearances
Counsel
for the Applicants: Adv. JS Stone
Instructing
Attorneys: Hattingh & Ndzabanzaba Attorneys
Counsel
for the Respondents: Adv. ME Manala
Instructing
Attorneys: Mothle Jooma Sabdia Inc
Date
of hearing: 06 August 2018
Date
of judgment: 28 September 2018
[1]
Vermeulen
v Goose Vally Investments (Pty) Ltd
2001 (3) SA 976
(SCA) at 997B.
[2]
Imprefed
(Pty) Limited v National Transport Commission
1993 (3) SA 94 (A) 107.
[3]
Sun
Packaging (Pty Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA 176
(A) at 183E.
[4]
Vermeulen
v Goose Vally Investments
supra
at
997B.