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[2017] ZAFSHC 118
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Freyssenet Posten (Pty) Ltd and Another v Georgious N.O. and Others (5406/2014) [2017] ZAFSHC 118 (3 July 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 5406/2014
In
the matter between:
FREYSSENET
POSTEN (PTY) LTD
1
st
Excipients
MURRAY
& ROBERTS CONSTRUCTION (PTY) LTD
2
nd
Excipients
and
NICOLAS
GEORGIOUS
N.O
1
st
Respondent
MAUREEN
LYNETTE GEORGIOU
2
nd
Respondent
JOSEPH
REYNOLDS CHEMALY N.O
3
rd
Respondent
(In
their capacities as trustees of the
N
Georgiou Trust no: TMP757]
HEARD
ON:
31 MARCH 2017
JUDGMENT
BY:
MBHELE, J
DELIVERED
ON:
03
JULY 2017
[1]
The respondents (plaintiffs) instituted an action against the
excipient (herein referred to as the first defendant) for specific
performance and damages arising out of an alleged breach of contract.
[2]
The first defendant is defending the claim and brought several
exceptions against the plaintiffs’ particulars of claim.
This
is a fifth exception brought by the first defendant. This exception
follows the amended particulars of claim filed by the plaintiffs
on
26 October 2016.
[3]
In
the notice of exception the first defendant prayed for an
order that the exception be upheld and that the plaintiffs’
particulars of claim be struck out in its entirety as well as for a
costs order.
[4]
The defendant raised extensive grounds of exception in support of its
assertion that the plaintiffs’ particulars of claim
are vague
and embarrassing and lack averments necessary to sustain a cause of
action.
[5]
Before delivery of the amended particulars of claim the plaintiffs
brought an application in terms of Rule 6(11) in terms of
which
failure to comply with Rule 18(6) was condoned by my brother Sibeko,
AJ. At the heart of the above application was
the inability of
the plaintiffs to produce a copy of the Post-Tensioning Reinforcement
subcontract on the project known as the
Loch Logan Waterfront (being
the subject of the plaintiffs’ claim) entered into between the
first defendant and the second
defendant.
PRINCIPLES
RELATING TO EXCEPTIONS
[6]
It is necessary to deal with the applicable principles before dealing
with the grounds for exception. These are listed
in Erasmus
Superior Court Practice at B1 154 to B1 154A:
“
(a) In each case
the court is obliged first of all to consider whether the pleading
does lack particularity to an extent amounting
to vagueness.
Where a statement is vague it is either meaningless or capable of
more than one meaning.
(b) If there is vagueness
in this sense the court is then obliged to mistake a quantitative
analysis of such embarrassment as the
excipient can show it 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 the form to which he or she objects. A
point may be of the utmost importance
in one case and the 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 test 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 amounting to prejudice.
(f) The excipient must
make out his or her case for embarrassment by reference to the
pleadings alone.”
[7]
Requirements set out in Rule 18 (4) are emphasised in
Trope
v South African Reserve Bank
1992 (3) SA 208
T at 221:
“
An exception to a
pleading on the ground that it is vague and embarrassing involves a
twofold 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.”
[8]
It is clear from the above that the assailed pleading must not only
be vague and embarrassing but it must cause prejudice to
the
excipient.
[9]
For an exception to succeed, the excipient must establish that the
pleading is excipiable on every interpretation that can reasonably
be
attached to it. (See,
FIRST
NATIONAL BANK SOUTHERN AFRICA V PERRY N.O AND OTHERS
2001 (3) SA 960
(SCA)
at
965 D;
also
THEUNISSEN
ENANDERE V TRANSVAALSE LEVENDEHAWE KOȌP BPK
1988 (2) SA 493
(A)
at
500
E-F
.
[10]
The exception is a procedural means to avoid leading of unnecessary
evidence at trial. Its object is either, if possible, to
settle the
case, or at least part of it, in a cheap and easy fashion, or to
protect oneself against an embarrassment which is so
serious as to
merit the costs even of an exception. (See
KAHN
v STUART AND OTHERS
1942
CPD 386
at
391;
[11]
The pleading on which the exception is based must be read as a whole
to establish vagueness amounting to embarrassment resulting
in
prejudice to the excipient. All documents attached to the assailed
pleading must also be looked at to satisfy oneself that no
cause of
action has been established.
[12]
In
KAHN
v STUART AND OTHERS
supra
it was emphasised that a Court should not look at a pleading with a
magnifying glass of too high power.
[13]
While pleadings must be drafted carefully a court should not read
them pedantically nor should it emphasize precise formalistic
requirements; the substance of the allegations should be considered.
(
See MN
v AJ
2013 (3) SA 26
(WCC)
at
33 par.
24
).
[14]
In
JOWELL
v BRAMWELL -JONES AND OTHERS 1998 [1] SA 836 W at 905E-H
the
following was said:
“
I
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…”
The
term “cause of action” was defined in
McKenzie v
Farmers’ Cooperative Meat Industries Ltd
1922 AD 16
at 23
as
“…
"
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of
the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved
."
[15]
It is important to look at the plaintiffs’ particulars of claim
before dealing with the grounds for exception
:
3.1 On
3 July 2005 and at Bloemfontein the plaintiff, duly represented by MN
Georgiou and the second defendant
(“the contractor”),
duly represented by SD Pel entered into a written agreement (“the
Murray & Roberts agreement”)
3.2 A
copy of the relevant clause of the Murray & Roberts Agreement is
annexed hereto, marked “
A
”.
4.
It was
inter alia
terms of the Murray & Roberts Agreement
that:
4.1 the
Plaintiff appointed Second Defendant as contractor for a new shopping
mall and additions to the existing
shopping centre (“the
project”) situated at Loch Logan Waterfront, Bloemfontein (“the
LLW Shopping Centre”);
4.2 The
principal agent appointed for the project shall:
4.2.1 Prepare tender
documents in conformity with the JBCC Nominated/Selected Subcontract
Agreement and the Murray & Roberts
agreement for work intended to
be executed by selected subcontractors. Such preparation shall
be carried out in consultation
with and to the reasonable approval of
the contractor;
4.2.2 Call of tenders
from a list of tenders agreed between the contractor and the
principal agent;
4.2.3 In consultation
with the contractor, choose a subcontractor and instruct the
contractor to appoint such a subcontractor as
a selected
subcontractor in terms of the JBCC Nominated/Selected Subcontractor
Agreement and other tender requirements;
4.3 The
second Defendant shall within ten working days of the instructions
referred to in paragraph 4.2 above
determine that such a
subcontractor can:
4.3.1 Meet the
requirements of the JBCC Nominated/Selected Subcontractor Agreement
and other tender requirements; and
4.3.1 Provide security in
terms of such an agreement.
4.4 Any
design responsibility undertaken by a selected subcontractor shall
not dissolve upon the Second Defendant
as contractor of the project.
4.5 All
contractual and other rights the contractor shall have against a
selected subcontractor arising from any
design responsibility
undertaken by the selected subcontractor are ceded to the First
Plaintiff.
4.6 The
right flowing from a warranty regarding such design responsibility
are ceded to the Plaintiff as the employer
whether or not such a
design warranty is referred to in the Subcontractor Agreement.
4.7 The
second Defendant, as contractor, shall make payment to the First
Defendant, as selected subcontractor,
of the amount certified and
identified and in terms of the JBCC Nominated/Selected Subcontractor
Agreement.
5.1
Tenders were called for by the principal agent in writing, for the
Post-Tensioning Reinforcement Subcontractor
on the project. A copy of
the relevant tender documents consisting of the contents page,
section 1 and section 6 thereof are annexed
hereto, marked “
B
”.
5.2 The
First Defendant submitted a tender for the Post-Tensioning
Subcontractor on 2 August 2005 under cover
of a letter addressed to
Venter Berry Partnership Quantity Surveyors
, the quantity
surveyors to the project, annexed hereto as annexure “
C1
”.
5.3 On
23 August 2005 the First Defendant, at the special instance and
request of the plaintiff, in writing submitted
a revised price for
the subcontractor to
Venter Berry Partnership Quantity Surveyor
,
a copy of which is annexed hereto, marked “
C2
”.
5.4 The
First Defendant’s tender was accepted by the Plaintiff and the
Second Defendant was notified as
such by way of a letter addressed to
it by the principal agent dated 4 October 2005.A copy of the letter
is annexed hereto marked
“
D
”.
5.5 In
terms of the tender documents, annexure “
B
”
hereto, submitted by First Defendant, duly represented by a duly
authorized employee of the First Defendant, whose full
and further
particulars are to the Plaintiffs unknown, and accepted by the
Plaintiff, duly represented by MN Georgiou of
the Plaintiff;
5.5.1 First defendant
accepted that it will have to conclude a contract with the main
contractor (Second Defendant) as selected
subcontractor.
5.5.2 First defendant are
referred to the specific conditions and obligations of the main
contractor (Second Defendant) n respect
of the Murray & Roberts
Agreement, the relevant clauses of which is annexed hereto marked
“
A
”.
5.5.3 By submission of
the tender, the First Defendant, was deemed to have acquainted
himself fully with the terms of the tender
document, (annexure “
B
”
hereto) the Murray & Roberts Agreement (annexure “
A
”
hereto), local requirements, law and all aspects of the work
envisaged in the tender documents.
5.5.4 The tender forms a
Selected Subcontractor to the Murray & Roberts Agreement
(annexure “
A
” hereto) for the project.
5.5.5 The First
defendant’s attention is drawn to the Murray & Roberts
Agreement and Preliminaries applicable to the tender.
5.5.6 The First Defendant
will be required to enter into a subcontract with the Second
Defendant in accordance with the latest addition
of the JBCC 2000
Selected Subcontract Agreement.
5.5.7 The First Defendant
specifically agrees that it is totally liable for the design, supply
and installation of the post-tension
cables, etc., as well as
additional reinforcement, that the design and installation meets the
requirement of the project (Works)
and that it will perform
accordance with the intended purpose of the works.
5.6
Subsequent to the First Defendant’s appointment as selected
subcontractor the First and Second Defendants
entered into a
Nominated/Selected Subcontractor Agreement, the originals and/or
copies thereof which are in the possession of the
First and Second
Defendants but not in the possession of the Plaintiff.
5.7
Annexure hereto, marked “
E
” is a pro-forma version
of the Nominated/Selected Subcontractor Agreement similar to the one
entered into between the First
and Second Defendants whereby the
terms and conditions of annexure “
A
” and “
B
”
hereto relating to the Nominated/Selected Subcontract Agreement were
incorporated by reference as pleaded in paragraphs
5.5.2 to 5.5.7
above.
6.
In terms of annexures “
A
”, “
B
”
and “
E
” hereto, the relevant express,
alternatively implied terms of the Nominated/Selected Subcontractor
Agreement were
inter alia
the following:
6.1 The
first Defendant was totally liable for the design, supply and
installation of the Post-Tension cables,
etc. as well as additional
reinforcement s that the design and installations met the
requirements of the project; and
6.2 The
First Defendant will perform in accordance with the intended purpose
of the works and will closely liaise
with the contractor in all
matters concerned; and
6.3 The
First Defendant will perform the said subcontract work in a proper,
workmanlike and professional manner.
6.4 The
First Defendant will execute the subcontractor works with due skill,
diligence, regularity and expedition
and bring the works to
inter
alia
work completion, and final completion.
6.5 The
First Defendant shall not be responsible for the design of the
Nominated/Selected Works, other than the
First Defendant’s or
his subcontractors’ temporary works, unless otherwise
stated in the Nominated/Selected Schedule.
The First Defendant
shall not be responsible for the primary coordination of design
elements.
6.6 Any
design responsibility undertaken by the First Defendant shall not
devolve upon the Second Defendant.
All contractual or other
rights the Second Defendant has against the Fist Defendant arising
from any design responsibility undertaken
by the First Defendant are
ceded to the Plaintiff. The rights flowing from a warranty
regarding such design responsibility
by the First Defendant are ceded
to the Plaintiff whether or not such a design or warranty is referred
to in the Nominated/Selected
Agreement.
6.7 The
First and Second Defendants agreed, when entering onto the
Nominated/Selected Subcontract Agreement, that
the First Defendant
would be responsible for the design of the subcontract work as is
evident from
inter alia
the following:
6.7.1 A letter addressed
to the Plaintiff by the Second Defendant dated 16 November 2011, a
copy of which is annexed hereto marked
“
E
”;
6.7.2 A letter by the
principal agent, NBA Studio Architects, addressed to the First
Defendant that it is being held responsible
for the design defect, a
copy of the letter is annexed hereto marked “
E2
”;
6.7.3 A letter addressed
by the First Defendant to the contractor dated 30 August 2010
regarding the First Defendant’s endeavours
to rectify its said
subcontract work. A copy of the letter is annexed hereto marked
“
E3
”.
6.7.4 An e-mail addressed
by the Second Defendant to the principal agent and
inter alia
the First Defendant in which the Second Defendant confirms that in
terms of clause 4 of the JBCC principal agreement any design
responsibility undertaken by the First Defendant (subcontractor)
shall not devolve on the Second Defendant and is ceded to the
Plaintiff. A copy of the e-mail annexed hereto marked “
E4
”.
6.7.5 A letter addressed
by the Second Defendant to the representative of the Plaintiff dated
7 November 2011 calling for a meeting
with,
inter alia
, the
First Defendant pertaining to remedial work to be effected on the
slow-curve wall, designed by the First Defendant in terms
of the
selected/nominated subcontract. A copy of the letter is annexed
hereto marked “
E5
”;
6.7.6 An e-mail message
addresses by the Defendant’s representative to
inter alia
and Plaintiff’s the Second Defendant’s representatives on
1 December 2011 concerning the remedial work concluded by
the First
Defendant. A copy of the e-mail is annexed hereto marked “
E6
”;
6.7.7 A letter addressed
to the First Defendant by the principal agent, acting on behalf of
the Plaintiff, dated 3 July 2013 regarding
the remedial work
concluded by the First Defendant on the structural defects of the
curved wall. A copy of the letter is
annexed hereto marked
“E7”;
PLAINTIFFS
CLAIM:
[16]
The First Defendant failed to comply with the provisions of annexures
“
A
”,
“
B
”
and “
E
”
hereto and to conduct the selected subcontract work in a proper,
workmanlike and professional manner in the following respects:
7.1
The top reinforcing for the cantilever portion of the band on the
gridline at the first
floor level has been underprovided;
7.2
The design did not allow for the wall along the edge of the slab at
the first floor;
7.3
excessive deflections occurred on the slow curve slab edge;
7.4
the design had to allow for a canopy to be attached to the
cantilever, which canopy was
build but not installed due to the
cantilever deflections;
7.5
The reinforcing over gridline 16 is deficient and has insufficient
load allowances;
7.6
The reflection of the slab caused the curved wall to lean or buckle
outwards making this
wall unsafe and not fit for use and
unrepairable;
7.7
It failed to conduct the Selected Contract work and/or repairing
damages caused by the design
defect;
7.8
Failed to bring the works to completion and final completion.
8.1
In terms of the provisions of annexures “
A
”,
“
B
”
and “
E
”
hereto, the First Defendant, since 2008 on various occasions
attempted to rectify the defects and defected design for the
Post-Tensioning Reinforcement of the slow curve wall but the said
attempts were insufficient and/or First Defendant failed to rectify
the effects.
8.2
The Plaintiff and Second Defendant complied with all their
obligations in terms of annexures
“
A
”, “
B
”
and “
E
” hereto pertaining to the Post-Tensioning
Reinforcement subcontract.
8.3
Works and final completion in terms of annexure “
A
”
hereto have not been reached.
9.1
As a result of the First Defendant’s breach of contract pleaded
in paragraph 7 above,
the slow curve wall on the western façade
of the L L W Shopping Centre was unstable and could buckle and
collapse, causing
injuries or loss of life to tenants and patrons of
the shops in its vicinity.
9.2
In the premises the Defendant is liable towards the Plaintiff for
fulfilment of its obligations
in terms of annexures “
A
”,
“
B
”
and “
E
”
hereto.
[17] The first
defendant’s grounds for exception are stated as follows:
1.
The
particulars of claim seek to enforce alleged obligation in a contract
allegedly concluded between the first and second defendant
(to which
the plaintiffs are not a party) in respect of which the plaintiffs,
at best (if all the correct allegations were to be
made) only became
“cessionary” in respect an alleged design obligation,
which obligation to design can only provide
a remedy to perform the
personal task of redesigning in the hands of the plaintiffs.
The plaintiffs have failed to make sufficient
allegations in support
of each of the elements of the relief that they are seeking,
alternatively
the allegation in support thereof are vague and embarrassing to the
extent of causing the first defendant prejudice by rendering
it
incapable of sensibly pleading thereto.
2.
In
paragraph 5.5 the plaintiffs alleged that annexure “
B
”
was submitted by the first defendant to the plaintiffs, whereas
annexure “
B
”
constitutes the documents pursuant to which the plaintiffs allegedly
called for tenders and “
C1
”
and “
C2
”
allegedly constituted the submitted tender.
3.
The
plaintiffs allege in paragraph 5.5.7 that the defendant agreed to
certain obligations pursuant to annexure “
B
”
in contradistinction to an alleged subsequent agreement alleged in
paragraph 5.6 which precludes any preceding agreement.
4.
The
allegations in paragraphs 5.5.7, 5.7, 6.5 and 6.7 are contradictory
in that paragraph 6.5 excludes any design obligation in
the absence
of an allegation that the Schedule to annexure “
E
”
stated the contrary
5.
Paragraph
6.5 records that the first defendant shall not be responsible for the
design of the Nominated/Selected Works “…unless
otherwise stated in the Nominated/Selected Schedule”. In
the absence of an allegation that the Schedule to annexure
“
E
”
stated the contrary no such obligation exists, nor has any been
relied upon.
6.
The first
claim in paragraphs 7 – 9 of the particular of claim is
precluded on the basis of paragraph [26] of the judgment
by EBRAHIM J
on 6 August 2015 as between the same parties.
7.
Paragraph
4.5 and 4.6 relies upon alleged upon alleged agreements of cession,
without compliance with rule 18(6).
8.
Paragraph
6.1 refers to an alleged obligation in relation the “requirements
of the project” without pleading any specifics
in relation
thereto.
9.
Paragraph
6.2 refers to an alleged obligation in relation to the “intended
purpose of the works” without pleading any
specifics any
relation thereto.
10.
Paragraph
6.2 refers to an alleged obligation in relation to “all matters
concerned” without pleading any specifics
in relation thereto.
11.
Paragraph
6.3 refers to an alleged obligation to perform the alleged
subcontract work without pleading any specifics in relations
thereto.
12.
Paragraph
6.4 refers to an alleged obligation to perform the alleged
subcontract work “with due skill, diligence, regularity
and
expedition” without pleading any specifics in relation thereto
in contradiction the plaintiffs allege in paragraph 7
that the first
defendant failed “to conduct the selected subcontract work in a
proper, workmanlike and professional manner”.
13.
Paragraph
6.5 alleges that the first defendant shall have no design
responsibility unless recorded in writing in a schedule, allegedly
completed by other parties without alleging that it had been done.
14.
The
reference to attachment “
E
”
does not substantiate the allegations in paragraph 6.6 in that tit
does not refer to or confirm the contents of the schedule
in which
the opposite of the obligation in paragraph 6.5 had to be stated.
15.
Paragraph 6
relies on and attaches annexure “
E
”,
which expressly excludes the any design responsibility, which
attaching the relevant pro forma of the schedule referred
to in
paragraph 6.6 or without alleging that the schedule stated the
opposite of the obligation alleged in paragraph 6.5.
16.
The alleged
failures to comply as alleged in paragraph 7 do not correspond with
any specific obligation alleged in paragraph 6 or
evident from the
attachments referred to, and are made without alleging that the
schedule stated the opposite of the obligation
alleged in paragraph
6.5 and that it contained the specific obligations alleged to have
been breached in the manner alleged in
paragraph 7.
17.
The failure
to comply as alleged in paragraph 7 do not refer to any time at which
it had to be performed or when the alleged failure
to perform
occurred.
18.
The failure
to comply alleged in paragraph 7 do not refer to the alleged
schedule, but merely “
E
”
which expressly excludes the design responsibility.
19.
The first
defendant is alleged to be a subcontractor to the second defendant in
respect of the construction work, under circumstances
where the
plaintiffs allege that the plaintiffs (as employer) and the second
defendant (as principal contractor to the first defendant)
complied
with all obligations of the contract, which precludes any possible
claim based on the defect as alleged or at all.
20.
It is
evident from the particulars of claim that practical completion had
been achieved and that second defendant complied with
all its
obligations (albeit it contradictorily alleged that works and final
completion had not been achieved), before summons had
been issued.
Apart from the confusion and contradiction, the particular of claim
failed to make the necessary allegations to show
compliance with the
contractual procedures stipulated for either before or after
practical completion.
21.
The
allegations in paragraph 9.2 preclude reliance on any design
obligation on the part of the first defendant.
22.
The
allegation in paragraph 8.2 to the effect that the second defendant
complied with its obligations is contradictory to the alleged
breach
thereof by the first defendant as subcontractor of the second
defendant.
23.
The
plaintiffs seek relief against the first defendant beyond the alleged
obligation to design, allegedly “ceded” to
the plaintiffs
and beyond the obligation to remedy any breach design obligation.
24.
The
plaintiffs failed to make an allegation with reference to paragraph
7.1 as to what it is that the first defendant had to provide
in order
to give meaning and content to the word “underprovided”.
25.
The
plaintiffs did not allege an obligation in paragraph 7.2 from which
it can be established that the design had to “allow
for the
wall along the edge of the slab at the first floor”.
26.
The
plaintiffs failed to allege in paragraph 7.3 which obligation and
breach thereof resulted in the alleged excessive deflections
on the
slow curve slab edge.
27.
The
plaintiffs failed to allege in paragraph 7.4 any obligation to allow
for a canopy to be attached to the cantilever.
28.
The
plaintiffs failed to allege in paragraph 7.5 an obligation in
relation to reinforcing over gridline 16 so as to establish what
was
sufficient and what had been insufficient load allowances.
29.
The
plaintiffs failed to identify in paragraph 7.6 an obligation in
relation to “reflection of the slab”
30.
The order
sought in prayer 1 failed to limit the relief to any contractual
entitlement on the part of the plaintiffs as Employer
in
contradistinction to whichever obligations the first defendant owed
the second defendant.
[18]
Mr. Van Tonder, in his amplification of the grounds of
exception, emphasised that without contractual relationship
between
the plaintiffs and the first defendant there can be no cause of
action. He submitted that the particulars of claim fail
to show that
there was any obligation on the first defendant to perform as alleged
in the particulars of claim.
Mr.
Van Tonder, further, contended that the agreement pleaded on an upon
which the plaintiffs’ claim was brought fails to
establish a
contractual relationship between the plaintiffs and the first
defendant. He further contended that the plaintiff
failed to
show that the schedule that was to place design responsibility on the
first defendant does exist and that it changed
the relevant clause of
the contract. In his view, the plaintiffs failed to plead the
basis that such obligation does exist.
He contended, further, that
without the allegation that the schedule was changed there can be no
cause of action.
[19]
Mr. Grobler, on behalf of the plaintiffs, made a submission that the
plaintiff pleaded that the design obligation fell on the
first
defendant and that it is evident from the pro forma contract, tender
documents and annexures “E1 to E7”, being
correspondence
exchanged between the plaintiffs and first and second defendants that
such obligation does exist. The allegation
that the schedule
was changed cannot be made but the correspondence exchanged and other
documents annexed to the particulars of
claim support the allegation
that the design obligation rested on the first defendant. He
contended that the particulars
of claim in their current form state
the plaintiffs’ claim with sufficient clarity and
particularity.
[20]
It is clear that the plaintiffs concluded an agreement with the
second defendant for construction related work at the Loch
Logan
Waterfront in Bloemfontein. The second defendant had to enter into an
agreement with a subcontractor the terms of which were
outlined in
the principal agreement.
[21]
Paragraph 4 of the agreement between the plaintiff and the second
defendant state the following:
“
4.1 The contractor
shall not be liable for design of the works other than the
contractor’s or his subcontractor’s temporary
works.
The contractor shall not be responsible for the primary coordination
of design elements
4.2 Any design
responsibility undertaken by a nominated subcontractor shall not
devolve upon the contractor. All contractual
or other rights
the contractor shall have against such nominated or selected
subcontractor arising from any design responsibility
are ceded to the
employer. The right flowing from a warranty regarding such
design responsibility are ceded to the employer
whether or not such a
design warranty is referred to the subcontractor agreement.
4.3 The contractor shall
be responsible for ensuring the timeous preparation of the design
documentation undertaken by a selected
subcontractor for acceptance
by the principal agent to avoid delay to the intended date for
practical completion or any revision
thereof in terms of 29.0.”
[22]
Annexure “E” to the particulars of claim state the
following:
“
4.1 The
subcontractor shall not be responsible for the design of the n/s
works, other than the subcontractor’s
or his
subcontractor’s temporary works, unless otherwise stated in his
or her schedule. The subcontractor shall not be responsible
for
primary coordination of design elements.
4.2 Any design
responsibility undertaken by the contractor shall not devolve upon
the contractor. All contractual or other
rights, the contractor
has against the subcontractor arising from any design responsibility
undertaken by the subcontractor are
ceded to the employer. The
right flowing from warranty regarding such design responsibility are
hereby ceded to the employer
whether or not such a design warranty is
referred to in this nominated/selected agreement.
Paragraph
13 of Annexure ‘B’, being the tender document that the
first defendant responded to, state the following:
‘
The Subcontractor
specifically agrees that he is totally liable for the design , supply
and installation of the post tension cables
etc as well as additional
reinforcement that the design and installation meets the requirements
of the Works and that it will perform
in accordance with the intended
purpose of the Works. The Subcontractor must however closely liaise
with the Contractor in all
matters concerned.’
[23]
The first defendant avers that the plaintiffs should have stated the
terms of the Post – tensioning Subcontract. The
plaintiffs have
been allowed to approach this Court without the said contract. It is
clear from the annexed documents that the
first defendant responded
to the tender as put out by the Plaintiff and submitted its quotation
based on the same. The relationship
between the parties is
articulated in the contracts and correspondence exchanged between
them. The confusion around these documents
can be better cleared at
trial.
I
am unable to find vagueness and embarrassment that would result in
prejudice to the defendant. I have to be persuaded by the excipient
that the pleading is excipiable on every interpretation that can be
reasonably attached to it. The particulars of claim, in my
view,
disclose a cause of action with such clarity and particularity to
enable the defendants to plead.
[24]
In the circumstances, I make the following order.
ORDER
The
exception is dismissed with costs.
______________
N.M.
MBHELE, J
On
behalf of excipients: Adv
Van Tonder
Instructed
by:
EG Cooper Majiedt Inc
Bloemfontein
On
behalf of respondent: Adv S Grobler
Instructed
by:
c/o Honey Attorneys
Bloemfontein