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[2017] ZAGPPHC 960
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Arrow Rest Safari's v Mziki Safari Lodge (69613/2014) [2017] ZAGPPHC 960 (28 March 2017)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG, PRETORIA
Case
No: 69613/2014
28/03/2017
In the matter between
ARROW
REST SAFARI'S
PLAINTIFF
AND
MZIKI SAFARI LODGE
DEFENDANT
Heard: 23 August 2016
Delivered: 28 March 2017
Heard: 23 August
2016
Delivered: 28
March 2017
JUDGMENT
Molahlehi
J
Introduction
[1]
The plaintiff in this matter has raised the exception to the
plaintiffs claim on the grounds that its particulars of claim lack
averments necessary to sustain a valid cause of action, alternatively
that they are vague and embarrassing.
[2]
The plaintiffs claim is based on the following averments:
"4.1. On or about 19 September 2011, the Defendant
through his employees, caused a fire to spread to the Plaintiff and
/or
the Ramalebane Communal Property Association's property.
4.2.
Due to the negligence of the Defendant, the fire caused damage to the
Plaintiffs and/ or the Ramalebane Community Property
Association's
property in the amount of R691 804, 20."
[3]
The claim arose in the context where the plaintiff, a private
company has leased the property in question from the Ramalebane
Communal
Property Association (the CPA), the owner of the property.
The claim is also, as it would appear, based on the provisions of the
lease agreement which specifically provides at clause 32 thereof that
"The
Lessee shall be liable for any damages on the Property or elsewhere,
cause by fire, which occurs on the Property and shall
be liable to
compensate the Lessor for such damages and indemnifies the Lessor
against claims for damages resulting from such fire.
The Lessee shall
make fire-breaks and fire belts on the boundaries between the
Property, were adjoining properties as well
as within the boundaries
of the Property, where necessary, to protect the Property against the
internal fire."
[4]
The essence of the main complaint of the defendant is that it
is unable, from the plaintiff's particulars of claim to discern the
case it has to meet. The other complaint of the defendant is that the
particulars of claim are vague and embarrassing. It is trite
that in
order to succeed in an exception the excipient needs to persuade the
court that upon every interpretation the particulars
of claim bears
no cause of action or does not disclose a cause of action.
[5]
Rule 18 (4) of the Uniform Rules of the Court (the Rules) requires
that every pleading should contain a clear and concise statement
of
material facts upon which the pleader relies on for his or her claim
with sufficient particularity to enable the defendant to
answer to
thereto. This means that the facts upon which the plaintiff relies on
for his or her claim must be concise, logical and
be in an
intelligible form so as to enable the defendant to be able to reply
thereto. (See Put in another way the particulars of
claim must be
such that the other party is not taken by surprise.
[6]
The critical averment as would appear to critical in the
context of the alleged negligence would be for the plaintiff to
indicate
in what capacity the employees of the defendant caused the
fire to spread. The question in this respect is, did they cause the
fire to spread in the cause and scope of their duties? This is
lacking in the plaintiff's particulars of claim. It is also unclear
whether the employees were themselves the cause of the fire or caused
it spread. I agree with the defendant that the particularity
in
regard to this is lacking of the necessary averment for the purpose
of letting the defendant to know what case he is to meet.
[7]
Even if it was to be assumed that the employees were acting in
the cause and scope of their duties as employees of the defendant,
it
is not clear in what way are they alleged to have acted negligently
in causing the spread of the fire.
[8]
In the particulars of claim, the plaintiff describes itself as
the "First Applicant." Although in the heads of argument
it
contends that it is the only plaintiff in this matter it is not clear
in the pleadings as to who the owner of the property is.
Paragraph 32
of the lease agreement between the plaintiff and the CPA does not
assist in clarifying the issue of the ownership
in relation to how
the pleadings have been formulated.
[9]
In light of the above, the contention that the claim of the
plaintiff is vague and embarrassing is sustained.
[10]
In the premises he following order is made:
1.
The exception is upheld.
2.
The plaintiff's particulars of claim are struck out.
3.
The plaintiff is granted leave to amend its particulars of
claim and should do so within 15 days of the date of this order.
4.
The plaintiff is to pay the cost of the suit.
E Molahlehi
Judge of the High Court
Johannesburg.
APPEARANCE:
PLAINTIFF:
Langehoven, Pistorius & Partners RESPONDENT: Norton Rose
Fulbright South Africa