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[2017] ZAFSHC 115
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Aecom (Pty) Ltd v Hattingh N.O and Others (1455/2016) [2017] ZAFSHC 115 (6 July 2017)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 1455/2016
In
the matter between:
AECOM (PTY) LTD
Plaintiff
en
FANTI
BEKKER HATTINGH N.O.
First
Defendant
STEPHEN
FOUCHEE
N.O.
Second Defendant
JOHANNES
JACOBUS WOLHUTER N.O.
Third Defendant
CHARL PIERRE
CELLIERS
Fourth Defendant
CANTON TRADING 17
(PTY) LTD
Fifth
Defendant
FANTI BEKKER
HATTINGH
Sixth
Defendant
JOHANNES JACOBUS
WOLHUTER
Seventh Defendant
CORAM:
HEFER AJ
HEARD ON:
29 JUNE 2017
JUDGMENT
BY
HEFER AJ
DELIVERED
ON:
6 JULY
2017
[1]
The Excipients were joined as Third- and Fourth third Parties
respectively in terms of Rule 13 of the Uniform Rules of Court.
[2]
The Excipients noted an exception to the Plaintiff’s notice to
Third Parties on the grounds that same is vague and embarrassing.
The exception consisted of numerous grounds pertaining to vagueness
and embarrassing. However at the hearing of the matter,
it was
indicated on behalf of the Excipients that argument should only be
confined to the last ground of exception namely that
one of the
alternative amounts as claimed, being R688 114.57, which amount
constitutes damages, is not set out in such a manner
to enable the
Excipients reasonably to assess how the
quantum
has been calculated or arrived at.
[3]
In terms of Rule 18(10), a Plaintiff suing for damages shall set them
out in such a manner as to enable the Defendant reasonably
to assess
the
quantum
thereof. The requirements of this sub-rule and the purpose they
serve are different from those of sub-rule (4) which requires
the
facts which make up a claim or defence to be set out with sufficient
particularity to enable the opposite party to reply thereto.
[4]
According to Dictionary of Legal Words and Phrases, Vol. 4, p. Q - 4,
the meaning of “
quantum
”
is the amount in fees, compensation, or damages to be determined by a
Court. According to the Oxford Concise Dictionary
“
quantum
”
means the amount; share portion; required, desired or allowed amount.
[5]
As stated the Third Parties’ complained that the amount of in
particular R688 114.57 is not set out in such a manner
to enable
the Third Parties reasonably to assess how the
quantum
has been calculated or arrived at.
[6]
The relevant paragraph in the Plaintiff’s Third Party Notice in
regards to the latter amount referred to, reads as follows:
“
As
a result of the Third Parties representation, the Plaintiff has
suffered damages in the amount of R688 114.57 being the
cost
incurred by the Plaintiff in rendering the professional services
provided for in the agreement to the Defendants less an amount
of
R200 000.00 which was paid to it by the Defendants during or
around July 2014.
”
[7]
As pointed out during argument this passage referred to, is indeed
confusing or then for purposes of Rule 23(1) “
vague
and embarrassing
”
in that it would appear that the R200 000.00 which was paid
during or around July 2014 was according to this paragraph
paid by
the Defendants in regards to costs incurred in regards to the
professional services rendered. According to paragraph
17 of
the amended particulars of claim however, it is alleged that during
or around July 2014 the Defendants paid the Plaintiff
an amount of
R200 000.00 on account of the services rendered by the Plaintiff
in terms of the agreement. From these
two passages it is not
clear whether the R200 000.00 was indeed paid on account of the
services rendered by the Plaintiff
or indeed in regards to the cost
incurred by the Plaintiff in rendering professional services.
However, the Excipients did
not rely on this ground as part of the
exception raised by them.
[8]
Mr
Reinders
,
on behalf of the Excipients, referred me amongst others, to the
matter of
Sasol
Industries v Electrical Repair Engineering
1992 (4) SA 466
WLD
,
where Cloete J said the following in regards to the non-compliance of
Rule 18 at p. 470 – H - J:
“
In
my view, if a pleading does not comply with the sub-rules of Rule 18
requiring specified particulars to be set out, prejudice
has, prima
facie, been established … It is no answer for a Plaintiff to
say, as was submitted on the Plaintiff’s behalf
in argument,
that the Defendant has sufficient information to plead. If the
Defendant invokes Rule 30 because he has not
been given the
information which the Plaintiff is obliged to give him in terms of
Rule 18(6), and if the Plaintiff has not excused,
is non-compliance
with the sub-rule, this Court should come to the Defendant’s
assistance.
”
[9]
It was however repeated in
Francis
v Sharp and Others
2004 (3) SA 230
CPD,
with reference to
Levitan
v Newhaven Holiday Enterprises CC
,
that an exception that a pleading is vague and/or embarrassing ought
not to be allowed unless the Excipient would be seriously
prejudiced
if the offending allegations were not expunged.
[10]
Prejudice to a litigant faced with an embarrassing pleading must
ultimately lie in an inability properly to prepare to meet
the
opponent’s case (
See
:
Herbstein & Van Winsen, The Civil Practice of the High Courts of
South Africa, 5
th
Ed, Vol. 1, p. 637
.
[11]
With reference to the amount of R688 114.57, the Plaintiff
alleged in the Third Party Notice that it was
in
casu
costs
incurred by the Plaintiff in rendering the professional services
provided for in the agreement less an amount of R200 000.00
paid
to it by the Defendants during or around July 2004. In my view
the Plaintiff has through these allegations complied
with the
provisions of Rule 18(10) in that the
quantum
has been provided by the Plaintiff. The
quantum
may indeed be reasonably assessed.
[12]
Even if it is found that there was indeed non-compliance with the
provisions of Rule 18(10), I am still not convinced that
the
Excipients or any other party may be prejudiced in that they may not
be able to properly prepare to meet the Plaintiff’s
case.
I am therefore in respect in disagreement with Cloete J in
Sasol
Industries
(
supra
).
The Excipients know exactly the case which has to be met in regards
to the amount of the
quantum
referred to. They are therefore at this stage, able to plead to
such allegations in order to meet the Plaintiff’s case.
[13]
Of importance in this regard is that the Uniform Rules of Court in
particular further refer to the remedy as contained in Rule
21 being
a request for further particulars in preparation for trial.
After the close of pleadings a party may request such
particulars to
enable him to prepare for trial. If necessary the Excipients
may request such particulars at that stage.
However, they are
able at this stage to plead to the allegations referred to.
[12] In view of the above
the following order is made:
ORDER
:
1. The
exception is dismissed with costs.
______________
J.J.F
HEFER, AJ
Appearance
:
On behalf of
Excipients
: Advocate S
J Reinders
Instructed
by
:
Rossouws Attorneys
119 President Reitz
Avenue
Westdene
BLOEMFONTEIN
On behalf of
Plaintiff
:
Advocate P Zietsman SC
Instructed
by
:
Weavind & Weavind
c/o Honey Attorneys
Honey Chambers,
Northridge Mall,
Kenneth Kaunda Drive
BLOEMFONTEIN