About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2018
>>
[2018] ZAFSHC 30
|
|
MEC: Department of Public Works and Infrastructure, Free State Province v Tuscaloosa 21 (Pty) Ltd (3778/2017) [2018] ZAFSHC 30 (29 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
Case
No
: 3778/2017
In
the matter between:
MEC:
DEPARTMENT OF PUBLIC WORKS
Plaintiff/Respondent
AND
INFRASTRUCTURE,
FREE
STATE PROVINCE
and
TUSCALOOSA
21 (PTY) LTD
Defendant/Excipient
JUDGMENT
BY
:
LOUBSER, J
HEARD
ON:
23 MARCH 2018
DELIVERED
:
29 MARCH 2018
[1]
This matter came before me in the form of an exception noted by the
Defendant against the Particulars of Claim of the Plaintiff
on the
basis that they are vague and embarrassing as envisaged by the
provisions of Rule of Court 23(1). The exception was
heard on
an opposed basis.
[2]
In the Particulars of Claim, it is alleged that the Defendant had let
a building to the Plaintiff in terms of a written agreement
for a
certain period of time. It is further alleged that, after the
eventual expiration of the period of lease, it transpired
that the
Plaintiff had paid rentals for space in terms of square metres that
were much less than the square metres stipulated in
the lease
agreement. Part of the rentals were therefore paid indebiti, so
it is alleged, and the Plaintiff therefore claims
the repayment of
some R8 million.
[3]
Several grounds of exception are set out in the Notice of Exception,
which grounds are essentially directed at the vagueness
in the
computation of periods, parking spaces and payments made by the
Plaintiff. Suffice it to say that the Exception turns
around
contradictions in the quantum of the Plaintiff’s claim.
[4]
Mr. Van Rhyn, appearing for the Defendant/Excipient, submitted that
the contradictions go to the root of the Plaintiffs cause
of action,
and that the Exception should therefore be upheld and the action be
dismissed with costs, including the costs occasioned
by the
Exception. Mr. Sibeko, appearing for the Plaintiff, quite
correctly, in my view, conceded in argument that there may
be
contradictions contained in the Particulars of Claim. He
denied, however, that the contradictions are such that they touch
upon the cause of action itself, and he submitted that the Plaintiff
should be granted an opportunity to remedy its pleading.
[5]
In my view, the obvious contradictions in the pleading render the
calculation of the quantum of the claim vague and embarrassing,
but
the cause of action itself is not affected thereby to such an extent
that it can be said that it no longer discloses a cause
of action.
There may be instances where vagueness and embarrassment relating to
quantum may go to the root of the cause of
action, but that certainly
is not the case here.
[6]
I therefore find that the exception was properly taken, but that the
Plaintiff should be allowed to amend his pleading.
[7]
Consequently the following order is made:
1.
The exception is upheld with costs.
2.
The Plaintiff is granted leave to amend the Particulars of Claim
within a period of 21 days from date hereof.
_______________
P
J LOUBSER, J
For
Defendant/Excipient:
Adv.
A.J.R van Rhyn SC
Instructed
by: Rosendorff Reitz Berry
Bloemfontein
For
Plaintiff/ Respondent:
Adv.
L.T Sibeko SC (with him adv. D.R Thompson)
Instructed
by: State Attorney
Bloemfontein