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[2017] ZAGPPHC 343
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Fairleads Electrical CC v Mare (12587/16) [2017] ZAGPPHC 343 (28 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION,
PRETORIA)
CASE
NO: 12587/16
DATE:
28/3/2017
REPOOTABLE
NO
OF
INTEREST TO OTHER JUDGES NO
In
the matter between:-
FAIRLEADS
ELECTRICAL
CC
Plaintiff
And
DIETLOF
MARE
Defendant
JUDGMENT
NKOSI
AJ
INTRODUCTION
[1]
This
is an
opposed
application in terms of rule 23(
1)
[1]
of the uniform rules of the court on the basis that the plaintiff's
particulars of claim does not disclose a
cause of
action.
[2]
The defendant is the excipient and 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, can reasonably
bear, no
cause of action or defence if
discl
osed.
[2]
[3]
The exception relates to paragraph 6.1 of the particulars of claim
which reads as follows:
6.1
"During July 2013 the Defendant specifically
requested the plaintiff to render
the services and
supply the goods as set in the spreadsheet attached hereto
marked as annexure "A"
(hereafter referred
to as "the original work").
[4]
It was argued by the defendant that it can be inferred from Annexure
A that the plaintiff was in fact a home builder as defined
in section
1 of the Housing Consumers Protection measures Act 95 of 1998
[5]
The
exception raises a defence which is in line with section 10 of the
act
[3]
which provides that
:
"10
Registration of home builders:-
1.
No person shall-
a.
Carry on the business of a home builder, or
b.
Receive any consideration in terms of any agreement with a housing
consumer
in respect of sale or construction of a home,
b.
Receive any consideration in terms of any agreement with a
housing consumer in respect of sale or construction of
a home,
Unless
that person is a registered home builder
2.
No home builder shall construct a home unless that home
builder is a registered
home builder.
[6]
Section 21 ( 1 ) of the same act provides that
"Any
person who
(a)
.....
(b)
Contravenes a provision of section 10 (1)
.....,
shall be
guilty of an offence and liable on
conviction to a fine not
exceeding
R 25
000, 00
or
to imprisonment for a period not exceeding one
year, on each
charge".
[7]
On the other hand, the plaintiff argued that the
action against the defendant is
based
upon a verbal agreement which provides that
the plaintiff would render certain
services
and supply certain goods to the
defendant as indicated in annexure A and B.
The plaintiff
further argued that it was an express term of the agreement that the
plaintiff would render
FINISHING
work to the defendant's
house.
ISSUE
[8]
Can it be established from the pleadings and the
annexure attached to the particulars
of claim
that the plaintiff was a home builder? If it is so established, the
exception would have to be upheld
on the basis
that the plaintiff failed to allege in
the particulars of claim that it
was a home builder and
was entitled to be paid.
ISSUE
CONSIDERED
[9]
This is an application on motion seeking a final resolution to the
action. However, it is apparent from the grounds of the exception
and
the response thereto that there is a dispute between the
parties regarding the terms of
their
verbal agreement.
[10]
The defendant seeks to import his own understanding of
the terms of the agreement
into the pleading;
an approach which is vehemently
opposed by the plaintiff.
Such an
approach has far reaching consequences for
the plaintiff.
[11]
I am called upon by the defendant to make a
finding that the plaintiff was acting
as
a home builder. It would seem the plaintiff did not have home
builders certificate required by
the Ac t
[4]
• The effect of the finding sought by the defendant
would expose the plaintiff to the provision of section
21 ( 1 ) of
the Act. In Gates v Gates
[5]
the court stated
that.
"
It is true that in certain cases
more
especially in those
in which charges of criminal
or
immoral conduct
are
made, it has repeatedly been said that such charges must be
proved by the "clearrest
"
evidence
or
"clear"
and satisfactory" evidence
or
"clear
and convincing" evidence
or
some
similar phrase"
[12]
It will be unjust and improper to make such a finding without
affording the plaintiff adequate opportunity to place all the
facts
before court. At this stage, what is before court is the inference
drawn by the defendant from the annexure to the particulars
of claim.
[13]
In
Mc Kelven v Cowan NO
[6]
,
the court held
that
"If
evidence
can
be led which
can
disclose
a
cause of action alleged in
a
pleading, that particular pleading is not excepiable. Pleading is
excepiable only
on
the basis that
no
possible evidence Jed
on
the pleadings
can
disclose
a
cause of
action
[14]
The fact that the plaintiff alleges that it was not building a home
for the defendant but was providing finishing work
to the
defendant is worthy of being considered and such allegation subjected
to test during the trial. There are very limited common
cause facts
from which the court can draw the most reasonable inference. In my
view, the inference drawn from the annexure as read
with the
pleadings cannot be justified as the most reasonable inference.
[15]
In
National Director of Public Prosecution v Zuma
[7]
the court held
that:
"motion
proceedings unless concerned with interim relief,
are
all about the resolution of legal issues based
on common
cause
facts
.
Unless the circumstances
are
special they
cannot be used to resolve factual
issues because they
are
not designed to determine
probabilities. It is well established under the Plascon -Evans
rule that where in motion
proceedings disputes of fact arises
on
the affidavit, final
order can
be granted only if the facts
averred in the applicant's.... affidavits, which
have been admitted by the respondent....
together with
the facts alleged by the latter ,justify such order
.
It may be different if the respondent's version consists of bald
or
uncreditworthy denials, raises fictitious disputes of
fact, is culpably implausible, farfetched
or so
clearly untenable that the court is justified
in rejecting them merely
on
the papers. The court
below did not have
regard
to these propositions
and instead decided the case
on
probabilities without
rejecting the NDPP's version".
[16]
The plaintiff's cause of action is premised on a verbal agreement
concluded between the parties for services rendered and goods
supplied by the plaintiff at the defendant's special request and
instance. As it stands, the pleading is not excepiable. The annexure
and their contents remain in dispute. The dispute ought to be
subjected to oral evidence.
[17]
I therefore make the following order;
(i)
The defendant's exception is dismissed.
(ii)
The defendant is to pay plaintiff's cost of this application.
__________________________
N.
NKOSI
ACTING
JUDGE OF GAUTENG DIVISION, PRETORIA
[1]
Rule 23 ( 1) provides "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 filling any subsequent pleading,
deliver an exception there to and may set it down for hearing
in terms of paragraph (f) of sub rule (5) of
rule
(6): ..."
[2]
Theunissen v Transvaalse Lewende hawe Koop Bpk
1988 (2) SA 493
(A)
at 500 E - F
[3]
Housing Consumer Protection Measures Act 95 of 1998
[4]
Act 95 of 1998
[5]
Gates
v
Gates
1939 AD 150
at 155
[6]
Mc Kelven
v
Cowan
No
1980 (4) SA 525
(2) at 526 D
[7]
National Director of Public Procecution v Zuma 2009 (2)
SA 277 (SCA) at para [26]