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[2018] ZAFSHC 220
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Bester v Ronmarto Ontwikkeling CC and Another (156/2018) [2018] ZAFSHC 220 (29 November 2018)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(FREE
STATE DIVISION, BLOEMFONTEIN)
CASE
NO: 156/2018
In the matter between
MARTIN
FREDDIE
BESTER
PLAINTIFF
And
RONMARTO ONTWIKKELING
CC
FIRST DEFENDANT
JJ
VAN DER
WESTHUIZEN
SECOND DEFENDANT
CORAM:
CHESIWE J
JUDGMENT
BY:
CHESIWE J
HEARD
ON:
03 AUGUST 2018
DELIVERED
ON:
29 NOVEMBER 2018
[1]
The First and Second Defendants noted an
Exception to the Plaintiff’s particulars
of claim on the basis
that it lacks averments which is necessary to sustain a cause of
action alternatively it is vague and embarrassing.
[2]
The Defendants on 09
February 2018 delivered a notice in terms of Rule 23(1)
of the
Uniform Rules of Court that the Plaintiff should remove the cause of
complaint. The Plaintiff did
not respond to
the Notice, which consequently had the exception application before
me.
[3] The
Plaintiff claimed that he and the Second Defendant concluded an oral
partnership agreement of which the Plaintiff and Second Defendant
would conduct a farming enterprise with rabbits. The Second
Defendant would finance the farming enterprise and the Plaintiff
would make his immovable property situated at Agricultural Holding
No.6, Vrischgewaagd, in Kroonstad Free State. Based on the
alleged oral agreement the parties would therefore agree to share
equally in the profits of the farming enterprise.
[4] The
written partnership agreement was briefly that the second Defendant
will financed the purchase of rabbits and rabbit hatches; the
extension of the store room in which the rabbits and rabbits hatches
were being held and which storeroom is situated on the Plaintiff’s
property; the purchase of the feed for the rabbits as
well as the
building of a workers residence on the Plaintiff’s property and
the Plaintiff on the other hand would conduct
the farming operation
on a daily basis and further finance the purchase of medication for
the rabbits and purchase of the
cleaning products for the
farming operations.
[5] The
Plaintiff signed a sale of agreement as security in terms of which
the Plaintiff sells his property to the First Defendant for a
purchase price of R400 000 (which amount according to the
Plaintiff
does not represent the true value of the Plaintiff’s
property which is approximately valued at R1.8 million) but rather
they
agreed to the value of the improvements effected to the
Plaintiff’s property. The Plaintiff claimed that the
parties
further agreed that subject to a condition that the First
Defendant and the Second Defendant will only implement the sale
agreement
and effect transfer of the Plaintiff’s property to
the First Defendant only if the Plaintiff failed to effect
payment
of the amount of R400 000.
[6] Counsel
for the Defendants Adv. Ackerman in oral arguments submitted that
the
parties entered into a sale agreement and Plaintiff now wants to rely
on an oral agreement between the parties, which oral
agreement was
not in terms of the written partnership agreement. Counsel
submitted that it is the Defendants’ case
that the particulars
of claim do not disclose a cause of action and that the Plaintiff
attempts to rely on an oral agreement.
He said the contract was
a simple offer to purchase contract. He mentioned that the
property has already been registered
in the name of the Defendants.
Counsel submitted that the Plaintiff signed the agreement and that no
conditions were attached
to the contact. Counsel stated that
the parties must be kept to their contact and the Exception should be
upheld with costs
in favour of the Defendants.
[7] Counsel
for the Plaintiff Adv. Van Rensburg in oral argument submitted that
the contract between the parties was not meant to take effect, as the
Plaintiff intended that the agreement between them will not
take
place until “something” happens. According to
Counsel the Plaintiff avers that the contract was concluded
as a
result of fraud or misrepresentation as a result thereof the First
Defendant misrepresented his state of mind to the Plaintiff.
Counsel stated that the question is whether a condition can be
introduced to a contract after the parties have signed the contract.
[8]
The applicable
principles in an Exception as stated in Erasmus Superior Courts
Practice at B1 154 to B1 154 A are as follows:
“
(a)
In each case the court is obliged first of all to consider whether
the
pleading
does lack particularly to an extent amounting to vagueness
where
a statement in vague it is either meaningless or capable of
more
than one meaning. To put it at its simplest, the reader must be
unable
to distil from the statement a clear single meaning.
(b)
If there is
vagueness in this sense, the court is then obliged to undertake a
quantitative analysis of such embarrassment as the
excipient can show
is caused to him or her by the vagueness complained of.
(c)
In each case
an ad hoc ruling must be made as to whether the embarrassment is so
serious as to cause prejudice to the excipient
if he or she is
compelled to plead to the pleading in form to which he or she
objects. A point may be of the utmost importance
in one case,
and omission thereof may give rise to vagueness and embarrassment,
but the same point may in another case be only
a minor detail.
(d)
The ultimate
tests as to whether or not the exception should be upheld is whether
the excipient is prejudiced.
(e)
The onus is on
the excipient to show both vagueness amounting to embarrassment and
embarrassment amount to prejudice.
(f)
The excipient
must make out his/her case for embarrassment by reference to the
pleading alone.
(g)
The court
would not decide by way of exception to validity of an agreement
relied upon or whether a purported contract may be void
for
vagueness. Furthermore the exception must relate to the entire cause
of action and not a paragraph thereof.”
[9]
In
Colonial
Industries Ltd v Provincial Insurance Co Ltd,
[1]
the
court state that:
“…
the
form of pleading known as an exception is a valuable part of our
system of procedure if legitimacy employed. Its principle
use
is to raise and obtain speedy and economical decisions of questions
of law which is apparent on the face of the pleadings.
It also
serves as a means of taking objection to pleadings, which are not
sufficiently detailed or otherwise, lack lucidity and
are thus
embarrassing.”
[10]
It is the first principle in
dealing with matters of exception that if evidence can be
led which
can disclose a cause of action alleged in the pleading, that
particular pleading is not expiable. A pleading is only
excipiable on
the basis that no possible evidence led on the pleadings can disclose
a cause of action (see
McKelvey
v Cowan N.O,
[2]
)
[11]
The excipient has duty to persuade the Court that upon every
interpretation which pleading can reasonably bear,
no cause of action
or defence is disclosed. (See
Francis
v Sharpe
[3]
)
[12]
Counsel for the Defendants
submitted that is it clear from the Shifren Rule
[4]
,
that a stipulation or condition in a written agreement that provided
“and variations in the terms of this agreement
as may be agreed
upon between the parties shall be in writing otherwise the same shall
be of no force and effect”, that such
contract could not be
altered verbally.
[13]
The Shifren Rule is trite and was challenged on various grounds.
In
Brisley
v Drotskey,
[5]
the SCA reconfirmed the Shifren Principle.
[14]
In
Magna
Alloys and Research SA PTY LTD v ELLIS
[6]
Rabie
J said:
“
Dit
in die openbare belang is dat persone hulle moet hou aan ooreenkomste
wat hulle aangegaan het.”
[15]
The gist of Parol Evidence Rule
[7]
is that the introduction of a verbal agreement, constitute
inadmissible evidence and should therefore not be allowed. The Law of
Evidence in respect of the Parol Evidence, that the rule forbids
extrinsic evidence about the contents of a document inadmissible
insofar as it tends to contradict or change the document and that the
interpretation rule also applies that a document must be
based on the
wording of the document so that extraneous evidence for the purpose
of interpretation is also admissible (see
ABSA
V Michael’s Bid A House
[8]
)
[16]
In
Padayachee
v Adu Investments CC,
[9]
Opperman
AJ (as she then was) stated as follows:
“
Evidence
about what the parties thought their obligation are which is at
variance with the express provisions of the exit agreement,
would for
the reasons set out below be, inadmissible as offending the
integration rule. This is so as, amongst the other
reasons, the
parties elected to reduce the exit agreement to writing and agreed in
clause 14 thereof that the exit agreement would
contain all the
express provisions agreed to by the parties.”
[17]
The Plaintiff in this matter avers that the parties had an oral
agreement which the
Defendants denied as the contract signed between
the parties did not have a clause that any oral agreement will become
part of
their written contract. The contract between the
parties, clause 14.3.1 states that:
“
wysiging
en kansellasie
,
14.3.1
geen ooreenkoms tot wysiging, toevoeging of skrapping of kansiellasie
van hierdie ooreenkoms sal van kreig wees tensy dit
op skrif gestel
en geleken in deur of names beide party nie”
[18]
It is clear from clause 14.3.1 of the contract between the parties
that any changes or addition or
cancellation will be in writing and
signed by both parties.
[19]
The offer to purchase contract between the parties is the usual
standard contract
and there is no clauses that states any additions
or cancellations will be by oral agreement. The Plaintiff
signed and agreed
to the terms of the contract. The approach
both parties had towards the contract is clearly stated in the
contact.
The
leading cause or interpretation of a contract is
Natal
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
where Wallis JA said:
“
The
present state of law can be expressed as follows.
Interpretation is the process of attributing meaning to the words
used
in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading
the particular provision or provisions in the light of the
document as a whole and under the circumstances attendant upon its
coming
into existence. Whatever the nature of the document,
consideration must be given to the language used in the light of the
ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed
and
the material known to those responsible for its production………”
[20]
Based on the above authority it is thus clear that the Shifren Rule
as well as the Parol Evidence Rule
do not apply in the Plaintiff’s
case and actually favours the defendants. In terms of these
rules the Plaintiff is
barred from introducing any evidence contrary
to the written agreement that was signed by the parties.
[22]
I can therefore not accept the plaintiff version that there was an
oral agreement if the written and signed
contract between the parties
is so clear and straightforward, and the contract does not make
provision for any oral agreements.
[23]
The excipients in the exception application averred that the
Plaintiff summons and particulars
of claim lack averments which is
necessary to sustain a cause of action, alternatively that the
Plaintiff relied on an oral partnership
agreement. The
Defendants in their Heads of Argument dispute that the Plaintiff’s
allegation of fraud or misrepresentation
can stand as the Plaintiff
did not claim rectification, and the fraud allegation only came out
as a defence after the Plaintiff
alleged that he did not read nor
understand the contract.
[24]
I find it difficult to accept that the Plaintiff did not read or
understand the contract.
The transaction for the transfer of
the property took place with the involvement of attorneys bearing in
mind that the Plaintiff
was the seller and not the purchaser.
The Plaintiff was a signatory to the contract. The court also
takes cognisance
of the fact that the Plaintiff did not only have to
sign the partnership agreements but various documents to give effect
to the
transfer of the property as well as signing a power of
attorney and for obvious reasons all this was in line with the
agreement
of sale between the parties.
[25]
The test in deciding an exception is clearly set out in Erasmus, an
Exception that a pleading
is vague and embarrassing should not be
directed to certain paragraph of the pleadings but at the cause of
action as a whole which
must demonstrate to be vague and
embarrassing. In the matter of
Jowell
v Bramnell Jones and Others
[10]
the
court stated as follows:
“
It
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…”
[26]
Vagueness could arise from the formulation of the pleadings, the
absence of necessary or averments
or incomplete pleading, serious
prejudice can arise if these are not cured. The Plaintiff was given
notice to cure the defect by
the Defendants but did not act upon it.
That was to the plaintiff own peril in not curing the defect.
[27]
Bearing in mind Rule 18 (4) of the Uniform Rule, of court which
requires that every pleading:
“
Shall
contain a clear and concise statement of the maternal facts upon
which the pleader relies for his claim with sufficient particularity,
to enable the opposite party to reply thereto.”
[28]
The defendants in the application for Exception clearly sets out in
paragraph 1.1 to 1.5 the
defects that the plaintiff had to cure.
Bearing in mind that the object of pleading is to define the issues
between the parties,
and ascertain definitely what is the question at
issue between the parties; and thus object can only be obtained when
each party
states his case with precession (see Odgers Principles of
Pleading and Practice in Civil Action in the High Court of Justice
22
nd
Edition, page 133).
[29]
The Defendants though did not plead in the grounds for exception that
the Plaintiff is to invite
the Registration of Deeds to be party to
this action. I agree with the Defendants that the Registrar of
Deeds be party to
the action, as any court court order that will be
granted and directed to the Registrar of Deeds the office need
to have
knowledge of the court proceeding.
[30]
Therefore the excipients seeks an order that would grant the
Plaintiff leave to amend
its particulars of claim to cure the causes
of the complaint besides upholding the exception.
[31]
I am satisfied that the Defendants have discharged the required onus
of proof for
this court to uphold the exception.
[32]
I therefore make the following order:
1.
That the
Plaintiff’s particulars of claim be struck out.
2.
That the
Plaintiff be afforded 10 days within which to amend the particulars
of claim.
3.
That the
Plaintiff is ordered to pay the costs of this exception.
_____________
S.
CHESIWE, J
On behalf of
Plaintiff: Adv.
Van Rensburg
Instructed by:
Grimbeek
Van Rooyen Inc
C/o
VZLAR Inc
Bloemfontein
On behalf of
Defendants: Adv. Ackerman
Instructed by:
Meyer
Van Sittert & Kropman
C/o
Phatsoane Henney
[1]
1920
CPD 627
at 630
[2]
1980
(4) SA 525
Z D
[3]
2004
(3) SA 230
(C) at 233.)
[4]
SA
Sentrale Ko-Op Graan Maatskappy Bpk V SHifren en Andere 1964 (4) SA
760
[5]
2002
(4) SA 1
[6]
[1984]
‘ZASCA 116,
[7]
The
leading case on Parol Evidence is Absa v Michael’s Bid a House
2013 (3) SA 426
SCA
[8]
2013
(3) SA 426 (SCA).
[9]
2016
ALL SA 555.
[10]
1998
(1) SA836 (W) at 905