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[2017] ZAFSHC 22
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Robor (Pty) Ltd v Razzmatazz Civil (Pty) Ltd (2922/2016) [2017] ZAFSHC 22 (2 March 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 2922/2016
In
the matter between:
ROBOR
(PTY) LTD
Plaintiff
and
RAZZMATAZZ
CIVIL (PTY) LTD
Defendant
CORAM:
MENE,
AJ
JUDGMENT
BY:
MENE,
AJ
HEARD
ON:
3
February 2017
DELIVERED
ON:
2
March 2017
[1]
The
plaintiff has instituted action against the defendant for payment of
an outstanding amount of R4 057 048.89 due to it in terms
of a
contract that was entered into between them.
[2]
The defendant has filed a notice in terms of Rule 23(1) excepting to
the plaintiff's particulars of claim on the ground that
they are
vague and embarrassing.
[3]
The first complaint raised by the defendant relates to paragraphs 3,
4.3 and 6 of the particulars of claim and annexure R1 and
R3 to the
particulars of claim. According to the defendant the problem
emanates from the content of annexure R3 and that
the plaintiff
cannot rely on the terms of both annexure R1 and R3. The second
complaint of the defendant relates to the timeline
in respect of the
supply of material to the defendant. According to the defendant the
timeline of events does not correlate. The
other complaints relate to
annexure R1 to the plaintiff’s particulars of claim which
according to the defendant does not
reflect the purchase amount and
that the shipping schedule contained therein is at odds with
paragraphs 4.4 and 4.5 of the particulars
of claim; and that annexure
R4 does not contain the essential and epicentre quotations which
serve as provenance of any purchase
concluded under annexure R3.
[4]
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 (
Levitan
v Newhaven Holiday Enterprise CC
1991 2 SA 297
(C);
Quinlan
v McGregor
1960 (4) SA 383
(D) at 393E - H)
;
thereafter there must be a qualitative analysis of such
embarrassment; and it is only where the embarrassment is so serious
as
to cause prejudice to the excipient that the exception will be
allowed. The onus is on the excipient to show both vagueness
amounting
to embarrassment and embarrassment amounting to prejudice.
THE
FIRST COMPLAINT
[5] In respect of the
first complaint it is apposite to refer to the particulars of claim
and annexure R1 and R3 which are the source
of this complaint. The
plaintiff pleaded as follows in the particulars of claim:
“
3.
On or about 14 November 2014 plaintiff, duly represented therein by
Nico Schoeman submitted a written
quotation for the sale and supply
of pipes and fittings to defendant. A copy of the written quote is
attached as R-1 [“the
written quote”]
4
The relevant terms of the written
quote are the following:
4.1
Plaintiff was to sell and supply the pipes and fittings set out
therein at the total price of R37 377 808.44 (Excl
VAT);
4.2 The
pipes and fittings were to conform with the specifications set out
therein;
4.3
Acceptance of the written quote is subject to the credit requirements
of plaintiff being satisfied;
4.4 A
delivery schedule was to be agreed pursuant to acceptance of the
written quote;
4.5
Plaintiff would not be held responsible if deliveries fail to meet
the agreed delivery schedule due to special
or unique supply
conditions of shipment to South Africa;
4.6 The
written quotation is based on plaintiff’s terms and conditions
of sale.
5.
On or about 14 November 2014 and at Bloemfontein defendant, duly
represented by R.W. Parker, accepted
the written quote by issuing and
furnishing plaintiff with Purchase Order #RC 13709. A copy of the
Purchase Order is attached hereto
as R-2.
6.
On or about 2 December 2014 defendant at Bloemfontein, duly
represented by R.W. Parker, signed a written
application to open a
written credit account [“the application”] and bound the
defendant to all the terms and conditions
contained in the
application.
6.1 A
copy of the application is attached hereto as R-3.
6.2
Included in the application were the Credit Terms and Conditions and
plaintiff’s Standard Terms and
Conditions of Sale.”
[6]
The defendant does not take issue with how the above paragraphs are
pleaded. The exception is taken on the basis that the plaintiff
cannot rely on both terms as contained in annexure R1 and R3,
especially when annexure R-3 records in clause 14 that:
“
these
terms and conditions constitute the sole record of the agreement
between the parties in relation to its subject matter. The
terms and
conditions contained on the Applicant’s purchase order, order
acceptance forms and/or invoices shall not apply
to, supplement or
supersede any provisions of these credit terms and conditions. No
addition to, variation, novation or agreed
cancellation of these
credit terms and conditions shall be of any force or effect unless in
writing and signed by or on behalf
of the parties.”
[7]
Furthermore the defendant contends that the credit contract does not
incorporate by reference or otherwise the terms of the
written
quotation (annexure R-1) that was submitted on 14 November 2014.
According to the defendant it cannot be discerned from
the
particulars of claim which contract the plaintiff relies on.
[8]
In response to this complaint the plaintiff contends that annexure
R-3 is a document containing four things: (i) an application
to open
a credit account; (ii) the terms and conditions that govern the
credit facility; (iii) a cession of books debts, and (iv)
the terms
and conditions that apply to a sale agreement. According to the
plaintiff, it does not plead or rely on the credit
agreement but the
sale agreement. The plaintiff argues that the defendant misreads its
summons and pleadings. Clause 14 of annexure
R-3 which the defendant
relies on relates to the credit agreement. Furthermore the plaintiff
argues that the manner in which the
defendant approaches the
pleadings is akin to criticising a plaintiff who sues a surety based
on an agreement that contains both
the sale terms and the suretyship,
but relies only on the terms of the suretyship to advance its case
against the surety. This
approach was simply untenable. In addition
the plaintiff argues that the defendant has not demonstrated that it
cannot plead to
the summons.
[9]
It is indeed so that annexure R-3 is a hybrid document. Page 38-39
records the particulars (or details) of the defendant as
the party
applying to open credit account; page 39 (starting from the bottom) –
page 40 records the terms and conditions
of a credit facility; page
40 (starting at the bottom) – 41 records the terms and
conditions of cession of book debts; page
41-44 records the standard
terms and conditions of sale.
[10]
As argued on behalf of the plaintiff, and correctly so in my view,
clause 14 relied on by the defendant relates to the credit
facility.
The provisions that are applicable in the case of the plaintiff are
the provisions relating to the sale agreement.
[11]
Even if one can argue, as it appears to be the contention of the
defendant, that the credit agreement does not incorporate
the
quotation (R-1) (which quotation was accepted by the defendant), the
defendant seems to overlook all the terms and conditions
that appear
on page 41 under the heading: STANDARD TERMS AND CONDITIONS OF SALE.
Under the said heading the following clauses are
relevant and
applicable - clauses 1.1 and 2.2 which read as follows:
“
1.1
‘Agreement/contract’ shall mean these standard terms and
conditions of sale, and such other terms and
conditions of sale as
may be agreed in writing between the parties.
2.2
This agreement shall be incorporated in and shall apply consistently
to every contract of sale entered into
between Robor and the customer
regardless of whether such Contract of sale is concluded orally or in
writing.”
[12]
In my view annexure R-3, as per the standard terms and conditions of
sale, incorporates any term and condition of sale agreement
as may be
agreed upon in writing. This includes annexure R-1 which was accepted
by the defendant and any other agreement entered
into subsequent to
annexure R-3. When one looks at the case of the plaintiff as pleaded
in the particulars of claim and more importantly
paragraph 7 and its
subparagraphs, the plaintiff relies on sale agreements and the
standard terms and conditions thereof. The pleaded
case is followed
up in paragraphs 8 – 12. In these paragraphs the plaintiff
pleads that it supplied and delivered all pipes
and fittings,
including the pipe specials in accordance with the purchase agreement
and that payment in the amount of R39 902 576.42
(incl VAT) was made
by the defendant. However, the outstanding balance is R4 057 048.89.
There is no vagueness or ambiguity in
the said paragraphs or in the
attached annexures.
[13]
Even if I am wrong on the above, I must say it is important to note
that an exception that a pleading is vague and embarrassing
will not
be allowed unless the excipient would be seriously prejudiced if the
offending allegations were not expunged.
In
casu
the defendant has not shown any prejudice it would suffer if it
pleads to the particulars of claim as they are.
[14]
During oral argument it was contended on behalf of the defendant that
if one considers annexure R-1 to R-3 and the purchase
orders
(annexure R-4), there must first be a quote in respect of the order
to purchase and that in casu there was no such a quote.
This
argument, as I understand it, boils down to the challenge on the
validity of a contract, or put differently that there was
no contract
in place in respect of the amount claimed by the plaintiff. If the
defendant believes so or is of the view that there
is no contract
between itself and the plaintiff, then there is no reason why the
defendant cannot plead as such as this will amount
to its defence
instead of excepting to the pleadings which in my view are not vague
and embarrassing. I find therefore that there
is no basis to this
complaint and this disposes of the first complaint of the defendant.
SECOND COMPLAINT
[15]
I have already indicated above that the defendant misread the summons
and focused on the terms of the credit agreement hence
its argument
that the timeline does not correlate. It is clear from annexure R-3
that a quote would be submitted by the plaintiff
and accepted by the
defendant by way of a purchase order. It was argued on behalf of the
plaintiff that indeed the purchase orders
(as evident from annexure
R-4 to the particulars of claim) were preceded by a quote which was
sent by e-mail. This argument was
not seriously disputed except that
there was no quote. I must repeat what I have stated above in
paragraph 14 that this argument
boils down to the challenge that
there was no valid contract that was entered into between the
parties. For the same reasons as
stated above, this does not preclude
the defendant from pleading to the particulars of claim and putting
its defence that there
no valid contract exists between itself and
the plaintiff. The defendant will not be prejudiced in pleading to
the particulars
of claim. In my view the particulars of claim are put
in a lucid, logical and intelligible form and the defendant can plead
thereto.
OTHER
COMPLAINTS
[16]
Other complaints suffer the same fate and for the same reasons as the
first and second complaints. The only complaint that
has not been
dealt with is the one relating to the amount that is allegedly not
mentioned in annexure R-1. This complaint was not
pursued in oral
argument, and correctly so. I say so for the simple reason that the
amount clearly appears on the second page of
annexure R-1 (i.e. page
26 of the record).
[17]
Having said so and for the reasons stated above, the exception cannot
be upheld.
[18] In the event I make
the following order:
The
defendant’s exception is dismissed with costs.
_______________
B.S.
MENE, AJ
On
behalf of the plaintiff: Adv.
C.J. McAslin
Instructed
by: Lovius Block
BLOEMFONTEIN
On
behalf of the defendant: Adv. S. Grobler
Instructed
by: Peyper Attorneys
BLOEMFONTEIN