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[2017] ZAGPPHC 963
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Seloane v Malhangu (84433/15) [2017] ZAGPPHC 963 (24 March 2017)
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 84433/15
24/3/2017
(1)
REPORTABLE: YES/
NO
(2)
OF INTEREST TO OTHER JUDGES: YES/
NO
(3)
REVISED.
In the matter between:
LEBOHANG CLYDE MANDLA SELOANE
PLAINTIFF/RESPONDENT
and
CHARLES MAHLANGU
DEFENDANT/EXCIPIENT
JUDGMENT
COLLIS AJ:
INTRODUCTION
[1
]
On 1
December 2015 the defendant raised an exception on the grounds that
the Plaintiff's particulars of claim lack the necessary
averments to
sustain a cause of action, alternatively that it is vague and
embarrassing. The Plaintiff disagrees and he
opposes
the
exception.
[2] Before
dealing with the issues it is important to look at Rule 18(4) which
provides as follows:
"[4] Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his
claim, defence or answer
to any pleading, as the case may be with sufficient particularity to
enable the opposite party to reply
thereto". There are
accordingly two separate requirements. The first is that the pleader
must set out the material facts upon
which it relies for its claim
and the second is that these material facts must be set out with
sufficient particularity to enable
the opposite party to reply
thereto.
In
Jowel v
Bramwell-Jones & Others
1998 (1) SA 836(W)
at 903A-B
the
following was stated:
"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
a/legations".
[3]
The
basic principle according to McCreath J in
Trope
v South African Reserve Bank and Another and Two Other cases
[1]
, is that particulars of claim should be raised in such a way that
the Defendant
"may
reasonably and fully be required to plead thereto".
Parties
must be able to come to trial prepared to meet each other's case and
not be taken by surprise. The ultimate test must be
whether the
pleading complies with the general rule enunciated in Rule 18(4) and
the principles laid down in our existing law.
[4] Pleadings are
expected to be lucid, logical and intelligible. The factual
allegations made must clearly disclose the cause of
action or
defence. (Harms Civil Proceedings in the Supreme Court at 26 3 - 4).
When dealing with a matter one has to determine
whether a pleading
lacks particularity to the extent that it is vague. It is also to be
determined "whether the vagueness
causes embarrassment of such a
nature that the excipient is prejudiced"
[Trope
v
South African Reserve Bank and Another
(supra)
at
211 B - C].
An exception to a pleading on the ground that it is
vague and embarrassing involves a two-fold consideration. The first
is whether
the pleading lacks particularity to the extent that it is
vague. The second is whether the vagueness causes embarrassment of
such
a nature that the excipient is prejudiced
[Quinlan v McGregor
1960 (4) SA383 (D) at 393E - H].
[5] It is not
right and proper to expect a party to plead to a pleading which
leaves one questioning as to its actual meaning.
Such a pleading is
expiable as being vague and embarrassing.
[6]
I now turn to consider the particulars of claim in the current matter
and the complaints on which the exception
is based. As mentioned
already, the Defendant excepted to the particulars of claim on the
ground that the particulars lack the
averments necessary to sustain a
cause of action, alternatively that it is vague and embarrassing and
in so doing raised four (4)
complaints:
(A)
FIRST GROUND
[7]
With regards to the first ground, it is alleged that the contract as
pleaded in paragraphs 5, 6 and 16 contradicts
the contents of
annexure "A" to the Plaintiff's particulars of claim.
[7.1] The
Defendant's criticism of the Plaintiff's particulars of claim vis a
vis the contents of annexure "A' is that the
Plaintiff alleges
that he and the Defendant concluded a contract of purchase of the
entire membership interest of a close corporation,
namely,
Thandimpilo CC including the assets and business of the close
corporation on the first day of inspection, for the purchase
price of
R950 000.00; whereas the contents of annexure "A" to the
particulars of claim alleges something different.
[7.2] Mr Borman for
the Defendant submitted that upon inspection of annexure "A",
it is clear that the document annexed
to the particulars of claim is
for the sale of fixed property and not for the sale of a membership
interest in a close corporation.
[7.3] Where an
exception is based upon the interpretation of a contract the
excipient must demonstrate that the contract is unambiguous
and that
the meaning which he or she contends for is the correct one and dare
I even say, the only meaning to be ascribed to the
contract. The
excipient bears the duty to persuade the court that the pleading is
excipiable on every interpretation that can reasonably
be attached to
it.
[2]
Furthermore, the pleading
must be looked at as a whole.
[3]
[7.4] According to
the Defendant, the alleged misrepresentations of the Defendant, which
caused the Plaintiff to conclude the purchase
contract is to be found
in the paragraphs 5, 6 and 16 of the particulars of claim i.e.
[7.4.1] that the
Defendant is the sole member of the Close Corporation Thandimpilo CC;
[7.4.2] that the
Close Corporation was the sole owner of the property situated at 4
Tau Street, Extension 12, Mamelodi East, Pretoria;
[7.4.3] that the
Close Corporation conducted the business of a butchery from the
property;
[7.4.4] that the
Plaintiff would be purchasing the entire membership interest of the
Close Corporation as a going concern.
[7.5]
Ex facie
annexure "A", the Seller sold to the
Purchaser the following property:
"(1)
Thandimpilo
CC,
Extension 12,
Mamelodi East, Pretoria, with all the equipment in it as on the first
day of inspection.
5 WARRANTIES
…………………………
..…
The seller
specifically indemnifies the purchaser against any debts the business
might have built up prior to the time and date
of signing this
agreement."
[7.6] Counsel
representing the Plaintiff strongly argued that the Defendant had
failed to demonstrate that annexure "A"
has the unambiguous
meaning contended for by him, namely that annexure "A" can
only be interpreted as concerning the
sale of immovable property
situated at Extension 12, Mamelodi East, Pretoria.
[7.7] These
submissions as made by the Plaintiff's counsel, I find favour with.
If indeed annexure "A" is unambiguous
and not supportive of
the pleaded cause of action then there would be no purpose to be
served by any reference in the agreement
to "Thandimpilo CC"
and a warranty against "any debts of the business". The
aforesaid reference negates any
support to the Defendant's
interpretation of merely a sale of immovable property situated at
Extension 12, Mamelodi East, Pretoria.
[7.8]
Consequently, the first ground of exception cannot be upheld.
(B) SECOND
GROUND
[8] The
complaint here is that the Plaintiff fails to allege that the
Defendant who is married in community of property obtained
the
consent of his spouse before he sold his membership interest in the
Close Corporation to the Plaintiff.
[8.1] The Defendant
contends that:
[8.1.1] In terms of
Sec 15(2)(c)
of the
Matrimonial Property Act, 88 of 1984
, a spouse
married in community of property shall not without the written
consent of the other spouse alienate, cede or pledge any
shares,
stock, debentures, debenture bonds, insurance policies, mortgage
bonds, fixed deposits or any investment by or on behalf
of the other
spouse in a financial institution, forming part of the joint estate.
[8.1.2] Membership
interest in a close corporation constitutes debentures.
[8.1.3] The
Plaintiff's claim as pleaded is based on fraudulent
misrepresentation, alternatively, mistake and cancellation by the
Defendant resulting in damages being suffered by the Plaintiff, and
not based on the provisions of any statute, in this case the
Matrimonial Property Act.
[8.1.4
] Furthermore,
that
Section 15
of the
Matrimonial Property Act, in
essence provides
protection to spouses against each other and to third parties who
contract with people whom are married in community
of property.
[4]
In addition thereto,
Section 17
of the
Matrimonial Property Act
permits
a person suing a spouse married in community of property to
either sue such spouse on his or her own or jointly and severally
with
his or her
spouse.
[8.2] Having regard
to the Plaintiff's pleaded case, I disagree that the particulars of
claim or any portion thereof is vague and
embarrassing. The Defendant
is in a position to formulate his defence against the Plaintiff's
pleaded case, and can either admit
or deny the allegation.
[8.3] As a result I
am not persuaded that the pleading lacks particularity to the extent
that it is vague, which vagueness causes
embarrassment of such a
nature that the excipient is prejudiced.
[8.4] Consequently,
the second ground of exception can also not be upheld.
(C) THIRD
GROUND
[9] Here the
Plaintiff is said to have failed to refer any dispute between the
parties to the Magistrates Court, Pretoria,
as provided for in clause
10.2 of annexure "A". As a consequence the Defendant
contends that this High Court does not
have jurisdiction to entertain
the Plaintiff's claim.
[9.1]
Jurisdiction means
[5]
"the
power invested in
a
court
by law to adjudicate upon, determine and dispose of
a
matter."
[9.2] A
Plaintiff must allege and prove the facts necessary to establish that
the court has jurisdiction in the matter
and over the person of the
Defendant.
[6]
[9.3] As
per the Plaintiff's pleaded case, the Defendant is residing within
this court's jurisdiction and the contract
was also concluded within
this court's jurisdiction.
[9.4]
Counsel for the Defendant argued that clause 10.2 of the agreement
ousted this court's jurisdiction.
[9.5]
Section 45 of the Magistrates Court Act, No 32 of 1994 provides as
follows:
"(1) Subject
to the provisions of section forty-six, the court shall have
jurisdiction to determine any action or proceeding
otherwise beyond
the jurisdiction if the parties consent in writing thereto: Provided
that no court other than
a
court having jurisdiction under
Section twenty-eight shall, except where such consent is given
specifically with reference instituted
or about to be instituted in
such court, have jurisdiction in any such matter."
[9.6]
Having regard to the above, I cannot agree with the contention made
by counsel for the Defendant. At best clause
10.2 reflected the
wishes expressed by the parties in the event of any dispute arising
in future. It certainly, never excluded
the jurisdiction of this
court and as such the High Court retains concurrent jurisdiction. A
Plaintiff may therefore in the absence
of a clear agreement debarring
him from doing so, institute action in the High Court and recover
High Court costs.
[7]
[9.7]
The pleaded case of jurisdiction certainly is not vague and
embarrassing in nature that the excipient is prejudiced
by pleading.
[9.8] Consequently,
the third ground of exception can also not be upheld.
FOURTH
GROUND
[10]
The Defendant's last complaint relates to the Plaintiff's failure to
tender restitution or to provide a valid
excuse for failing to do so,
where the Plaintiff claims restitution allegedly arising from fraud,
alternatively
iustus error, further alternatively cancellation
of the contract.
[10.1]
As per the particulars of claim the Plaintiff pleaded that the
written agreement of sale was entered into on or about 13
June 2014
and that the Plaintiff took occupation the following day.
[8]
[10.2] The
misrepresentation relied upon by the Plaintiff as giving rise to the
present action against the Defendant relates to
the fact that the
Close Corporation is not the owner of the property and that the close
corporation was deregistered on 24 February
2011, and as such
deregistered when the agreement
was
concluded.
[9]
[10.3] Furthermore
the Plaintiff alleges that he vacated the premises on or about 16
August 2015 after the Defendant informed the
Plaintiff on 29 July
2015, that he had cancelled the agreement.
[10.4] Counsel
representing the Plaintiff had argued that by vacating the premises
on or about 16 August 2015, the Plaintiff has
restored occupation of
the property to the Defendant. Furthermore, that the deregistration
of the Close Corporation as far back
as 24 February 2011 meant that
at the time when the agreement was concluded there could not have
been any membership interest in
the Close Corporation to sell to the
Plaintiff.
[11] It is
trite that a tender of restitution or the explanation and excuse for
its failure, is a requirement in proceedings
for restitution. A
contracting party who demands restitution consequent upon a purported
rescission of the contract must tender
the return of what he himself
has received under the contract or its equivalent in money,
[Feinstein v NiggIi and Another 1981(2)SA
684(A) at 700F-H] and his
failure or inability to do so, may effectively preclude or nullify
his election to resile from the contract.
[12] In Extel
Industrial (Pty) Ltd and Another v Grown Mills (Pty) Ltd
1992 (2) SA
719
(SCA) at 732, it was pointed out that the restitution or tender
does not have to be an integral part of the rescission, rather it
is
a consequence that must necessarily flow from it.
[13] On the
strengths of the aforegoing, I agree with counsel for the Plaintiff
that an express allegation contained in the
particulars of claim that
the Plaintiff tenders restitution does not preclude the Plaintiff
from the relief it seeks.
[14] It
follows that this ground as an exception must also be dismissed.
ORDER
[15] In the
result I make the following order:
[15.1]
All exceptions taken by the Defendant are dismissed with costs.
C. J. COLLIS
ACTING
JUDGE GAUTENG DIVISION PRETORIA
APPEARANCES:
FOR PLAINTIFF/RESPONDENT: ADV. M DEWRANCE
INSTRUCTED BY: LEAHY
ATTORNEYS
FOR DEFENDANT/EXCIPIENT: Mr
G R BORNMAN
INSTRUCTED BY: GR
BORNMAN ATIORNEYS
DATE OF HEARING: 14
MARCH 2017
DATE OF JUDGMENT: 24
MARCH 2017
[1]
1992 (3) SA 208
(T)
at
21OG-J.
[2]
Picbel Groep Voorsorgfonds (in
Liquidation) v Somerville and Related Matters
2013 (5) SA 496
(SCA)
at 501A B
[3]
Nel and Others NMO v McArthur
2003 (4) SA 142
(T) at149F
[4]
Sec 15(6)
and
15
(9) of the
Matrimonial Property Act, Act
62 of 1984
[5]
Amler's Precedents of Pleadings
Seventh Edition pages
248
[6]
Communication Worker's Union v
Telkom SA Ltd (1999] 2 ALLSA 113(T)
[7]
Union Cities Agency & Trust
Co(Pty) Ltd v Fakude
1942 WLD
261
[8]
Particulars of Claim para 5 and
7
[9]
Particulars of Claim para 12.2
and 12.3