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[2018] ZAFSHC 201
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Jacoti Construction CC v PHG Group CC (6006/2017) [2018] ZAFSHC 201 (16 November 2018)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 6006/2017
In
the matter between:
JACOTI
CONSTRUCTION
CC
Plaintiff
(Reg
nr. 2005/061770/23)
and
PHG GROUP
CC
Defendant
(Reg nr. 1993/024229/23)
HEARD
ON:
9 NOVEMBER 2018
JUDGMENT
BY:
OPPERMAN, J
DELIVERED
ON:
16 NOVEMBER 2018
I
INTRODUCTION
[1]
PHG GROUP CC (PHG/Defendant) excepts to the Combined Summons with the
Particulars of Claim of JACOTI CONSTRUCTION CC (JACOTI/Plaintiff)
as
lacking averments to sustain a cause of action for the relief claimed
therein. The cause of action is damages claimed from the
repudiation
of a contract.
[2]
The allegations in the summons and which the court must adjudicate as
it stands, are as follows:
[1]
2.1 On about 21 September
2015 and at Bloemfontein a partly oral and partly written agreement
was entered into between JACOTI, represented
by one Jannie Moolman
and PHG, represented by MVD Kalahari in terms whereof JACOTI by means
of horizontal drilling and installation
of 160 mm sewer line around
the basement of the North Cape Mall, Kimberley.
2.2 In terms of the
agreement JACOTI was compelled to furnish PHG with a letter of
acceptance. Such letter was provided and accepted.
2.3 As agreed between the
parties the work started at the end of November 2015 and work was
done by JACOTI and invoiced.
2.4 Due to the finding of
extreme dolerite the process of drilling slowed down and the drilling
process was kept on hold by agreement
between the parties until
further instruction from PHG.
2.5 On about the 30
th
of May 2017 PHG, through MVD Kalahari, ended the project by informing
JACOTI by means of a letter dated 30 May 2017 of the repudiation
of
the contract.
2.6 JACOTI`S main claim
revolves around the loss suffered for services rendered and goods
sold and delivered in connection therewith,
together with
disbursements now due and payable and notwithstanding demand, remains
unpaid. The damages suffered allegedly amounts
to R456 000-00.
2.7 On 4 December 2017
PHG issued a Notice in terms of Rule 35(14) for inspection of
documents. They are the following: A drawing
referred to in paragraph
2.2, the health and safety file as referred to in paragraph 2.2.10,
the General Conditions of Contract
as referred to in paragraph 2.3.1,
the SANS1200 document referred to in paragraph 2.3.2, the proof of
insurance as referred to
in paragraph 2.4.2, the set of drawings
referred to in paragraph 4, proof of completion as referred to in
paragraph 3, the program
referred to in paragraph 5, the Telkom
documentation referred to in paragraph 6. All the documents were
supplied (See pages 21
to 59 of the Bundle).
[3]
The litigation culminated into the exception and the current hearing.
It took 11 months and one week to get to the 9
th
of
November 2018 and at least eight procedures. The litigation went as
follows; on 20 November 2017 Combined Summons was issued
by JACOTI;
on 4 December 2017 a Notice in terms of Rule 35(14) was served by
PHG; on 25 May 2018 an Answering of the Rule 35(14)-notice
was
served; on 6
th
of July 2018 the Notice of Exceptions was
filed; hereafter followed JACOTI`S Notice of Intention to Amend on 1
August 2018; on
16 August 2018 PHG noted their objection to the
proposed amendments and the matter was set down for hearing on 9
November 2018.
Heads of Arguments followed on 18 October 2018 and 29
October 2018 respectively. The matter was severely delayed.
II
THE DISPUTES
[4]
The disputes are encapsulated in the Notice of Exceptions and the
Plaintiff`s Heads of Arguments.
4.1
Exception 1
Plaintiff avers that the
alleged agreement was partly oral and partly written, plaintiff then
only attached the written part of
the agreement. The oral part of the
alleged agreement is nowhere averred or pleaded and is thus omitted
from the Particulars of
Claim.
Reply
The oral part of the
agreement is alleged in paragraphs 4, 5 and 6 of the Particulars of
Claim, not only in paragraph 3.
4.2
Exception 2
Plaintiff (as per written
part of the agreement) was obliged to provide the defendant proof of
plaintiff`s insurance as per clause
2.4.2 of annexure A1 to A4 within
seven days from 21 September 2015. Plaintiff nowhere pleads or avers
that said condition was
duly met in time, nor attaches any proof in
this regard.
Reply
The said condition was
met in the Particulars of Claim read with the Answer in Rule 35(14)
and lies in annexures C1 to C7.
4.3
Exception 3
The written part of the
agreement as averred and/or suggested by the plaintiff contains no
term/clause in terms of which it was
agreed that the work would start
at the end of November 2015. Plaintiff then relies on a further
agreement in this regard, but
fails to plead as to the date on which
it was concluded, where said agreement was concluded, who represented
the parties in concluding
said agreement, if the agreement was in
writing or oral and the material terms and conditions thereof. The
plaintiff also gives
no explanation for the contradiction as to the
averment that work was to be started at the end of November 2015 (as
per paragraph
5 of the Particulars of Claim) versus the start of the
date of the works as 29 September 2015 (as per annexure D2 to the
answering
of the Notice in terms of Rule 35(14) filed by the
Plaintiff and dated the 25
th
of March 2018) Annexure C
contains no detail as to which work was done, which expenses were
incurred, the breakdown of said amounts
and thus does not contain a
clear indication of the work allegedly done; nor the expenses
incurred.
Reply
The excipient
misconstrues the allegation in paragraph 5 of the Particulars of
Claim. The allegations are part of the oral agreement
and thus
alleged.
4.4
Exception 4
The plaintiff refers to
yet a further agreement between plaintiff and the defendant and yet
again fails to plead/aver as to: the
date on which it was concluded,
where said agreement was concluded, who represented the parties in
concluding said agreement, if
the agreement was in writing or oral
and the material terms and conditions thereof.
Reply
The defendant is
confused. The contents of paragraph 6 contain the averments.
4.5
Exception 5
Plaintiff refers to
annexure E containing the detail of the alleged damages in the amount
of R456 000-00 but fails to annex said
annexure E. The Particulars of
Claim thus contain no detail of the alleged damages nor the
calculations/breakdown thereof.
Reply
The reference to annexure
E is a typing error and should have referred to annexure C that was
already annexed on 17 August 2018.
4.6
Exception 6
The plaintiff avers that
the amount as referred to in paragraph 9 of the Particulars of Claim
is for services rendered, goods sold
and delivered and disbursements
while in paragraph 9 of the Particulars of Claim, the plaintiff avers
same for damages. This is
a clear contradiction.
Reply
Defendant confuses the
allegations insofar the amount of R456 000-00 as appears in
annexure C relates to the same cause of
action, being services
rendered, good sold and delivered and disbursements and the
Plaintiff`s reference to the same amount being
damages, is a legal
consequence of the excipient`s failure to pay.
III
THE RELEVANT LAW ON PLEADINGS AND EXCEPTIONS
[5]
In order to succeed an excipient has the duty to persuade the court
that upon every interpretation which the pleading in question,
and in
particular the document on which it is based; that no cause of action
or defence is disclosed. Failing this, the exception
ought not to be
upheld.
[2]
[6]
An exception implies that the pleading objected to, taken as it
stands, is legally invalid for its purpose.
[3]
[7]
An exception is a valuable part of the system of procedure: its
principal use is to raise and obtain a speedy and economical
decision
on questions of law which are apparent on the face of the pleadings.
[8]
The perfect pleading does not exist.
[4]
The purpose of pleadings is to define the issues for the other party
and the trial court and for any court of appeal. The duty
of those
courts is to adjudicate upon the disputes and those disputes
alone.
[5]
[9]
Where a clause in a contract is ambiguous and extrinsic evidence is
admissible, an exception is not competent to decide the
meaning.
[10]
Evidence must not be pleaded. Barry, J in
Jones v Hamilton &
Haw
(1886) 5 EDC 222
at 228 explained the position:
There is a distinction
between giving evidence of a fact and stating that fact . . . Stating
that a thing was done is stating a
fact; giving the details of how it
was done would be giving evidence of it. Sometimes it is very
difficult to state a fact concisely,
without in stating it,
indicating the evidence of it . . . Under the present rules of
pleading you may not only state the necessary
facts, but you are
required to state all material facts relied on. So that if a fact
which, not absolutely necessary but material
either in aggravation or
mitigation, is within your knowledge and you intend to lay it before
the court, you are invited and it
is certainly your privilege to
plead it.
[11]
A fair public hearing pertaining to civil litigation, would suggest
due process, effective judgement, convenience and expense.
The mosaic
of evidence and rights and law must be weighed and the ultimate aim
is the fair administration of justice. The court
must be empowered to
give the most effective and proper judgement.
[12]
It is a principle of our law that a party must plead its cause of
action in the court of first instance so as to warn other
parties of
the case they have to meet and the relief sought against them.
This is a fundamental principle of fairness in
the conduct of
litigation. It promotes the parties’ rights to a fair
hearing which is guaranteed by section 34 of the
Constitution.
[6]
IV
FINDINGS
[13]
The above indicates that the plaintiff might, on a balance of
probabilities, not to have properly warned the other party of
the
case they have to meet as well as the relief sought against them.
The Application for Amendment and the nature of the
amendments
requested, indicate that the plaintiff, to a certain extent, realised
this. In order to serve the administration of
justice and facilitate
an expeditious, effective and constitutionally economical outcome in
this matter, I will order in favour
of the defendant but with the
proviso that the pleadings be amended in due course.
V
ORDER
1.
Exceptions 1 to 6 are upheld.
2.
The plaintiff is granted an opportunity
to amend the said pleadings within 10 days of this order.
3.
The plaintiff is ordered to pay the
costs of this application.
__________________
M.
OPPERMAN, J
On
behalf of the plaintiff: Adv. F G Janse van Rensburg
Instructed
by:
JG
Kriek & Cloete
BLOEMFONTEIN
On
behalf of the defendant: Adv. C. Snyman
Instructed
by:
Neuhoff
Attorneys
BLOEMFONTEIN
[1]
Bundle: Exception at pages 5 to 8; the Particulars of Claim.
[2]
Erasmus Superior Court Practise: 23 Exceptions and applications to
strike out. RS 4, 2017, D1-293.
[3]
Salzmann
v Holmes
1914 AD 152.
[4]
Amler’s Precedents of Pleadings: Author: L T C Harms, Last
Updated: 2018 - Ninth Edition, page 1: Introduction noted that:
“Pleadings and love letters have much in common: both are
personal and reflect somewhat of the author’s personality.
Precedents in either instance are dangerous because they tend to be
inapplicable to the facts under consideration. Each sets
out and
explains the position of the parties involved. If too much or too
little is said, problems arise. They provide embarrassing
evidence
of the original perceptions and intentions of the author and never
please successors in title.”
[5]
Molusi
and others v Voges NO and others
2016 (3) SA 370
(CC),
2016 (7) BCLR 839
(CC),
Fischer
and another v Ramahlele and others
[2014] 3 All SA 395
(SCA),
2014 (4) SA 614
(SCA) par. 13 and
Barkhuizen
v Napier
[2007] ZACC 5
;
2007 (7) BCLR 691
(CC),
2007 (5) SA 323
(CC) par. 39.
[6]
South
African Police Service v Solidarity obo Barnard
2014 (10) BCLR 1195
(CC),
[2014] 11 BLLR 1025
(CC),
2014 (6) SA 123
(CC) par. 202