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[2017] ZAFSHC 191
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Arnold Properties (Pty) Ltd v ZPC Joinery (Pty) Ltd and Others (2310/2016) [2017] ZAFSHC 191 (14 September 2017)
FREE
STATE HIGH COURT, BLOEMFONTEIN
REPUBLIC
OF
SOUTH AFRICA
Case
No.: 2310/2016
In
the matter between:
ARNOLD
PROPERTIES
(PTY)
LTD
Plaintiff
and
ZPC
JOINERY (PTY) LTD
First
Defendant
BAREND
MATTHEUS PRETORIUS
Second
Defendant
JOHAN
LOUIS DU PLESSIS
Third Defendant
ALEN
GUTLAR-BALKOVIC
Fourth
Defendant
CORAM:
HEFER, AJ
JUDGMENT:
HEFER, AJ
HEARD
ON:
1 SEPTEMBER 2017
DELIVERED
ON:
14
SEPTEMBER 2017
[1]
The Plaintiff, duly represented and the First Defendant, duly
represented, concluded a written agreement of lease in terms of
which
the First Defendant hired from the Plaintiff certain business
premises situated in Durban, KwaZulu Natal. The period of lease
was
nine months commencing on 1 July 2015 and terminating on 31 March
2016.
[2]
In its particulars of claim the Plaintiff alleges that the First
Defendant has breached its obligations in terms of the agreement
by
failing to pay the Plaintiff certain amounts for the period up to and
including April 2016. Such arrears are then set out as
follows:
(i)
For the lease period 1 July 2015 to 31 January 2016 at a basic
monthly
rental of R131 282.50; and
(ii)
For the period of 1 February 2016 to 31 March 2016 at a basic monthly
rental of R143
197.92.
[3]
The Defendants in their plea admit the conclusion of the lease
agreement and the terms thereof of which a copy is attached to
the
particulars of claim.
[4]
In answer to Plaintiff's allegations to the effect that the Plaintiff
has performed all its obligations in terms of the lease
agreement,
Defendants denied such allegation and in particular averred that the
Plaintiff failed and/or neglected to give beneficial
occupation of
the leased premises to the First Defendant from or about 1 July 2015
in that the leased premises were not suitable
to operate a carpentry
or joinery workshop from as envisaged in the lease agreement due to
inter alia
insufficient or interrupted electricity supply to
and/or inadequate electrical installation to the leased premises.
[5]
In answer to the Plaintiffs allegations pertaining to the arrear
rentals as claimed, the Defendants further plead that the total
rental payable for the lease for the period from 1 July 2015 to 31
January 2016 was the amount of R131 282.50 plus VAT whilst the
total
of rental payable by the First Defendant to the Plaintiff in respect
of the lease for the periods from 1 February 2016 to
31 March 2016
was the sum of R143 097.92 plus VAT. Defendants in other words plead
that the amounts which the Plaintiff claims
as being monthly rentals
were in fact the total amounts rental payable in terms of the lease
for the periods as specified.
[6]
As far as it may be found that such rentals were not all inclusive
rentals, the Defendants further plead that the Plaintiffs
claim
incorporates amounts for other charges and/or amounts, other than
rental, for which the First Defendant has to date, not
received any
proof, summary and/or invoice in the absence of which, Plaintiff is
barred from claiming such amounts from the First
Defendant under and
in respect of the lease.
[7]
The First Defendant then also filed a counterclaim in which First
Defendant repeats the relevant portions of Defendants' plea
referred
to above, as well as certain allegations as contained in Plaintiffs
amended particulars of claim. Plaintiff raised an
exception to both
Defendants' plea as well as the counterclaim on the following
grounds:
[7.1]
FIRST
EXCEPTION:
Insofar as the
Defendants' allege that the Plaintiff failed to give beneficial
occupation of the leased premises to the First Defendant
in that the
premises were not suitable for the purpose for which they were let
due to insufficient or interrupted electricity supply
and/or
inadequate electrical installation, such allegation is inconsistent
with the written terms of the lease which provides:
(a)
that the Plaintiff did not warrant that the premises were fit for the
purpose for which
it were let;
(b)
that the First Defendant would, at its own costs repair and maintain
the electrical installations,
power supply and electrical systems;
(c)
that the First Defendant would have no claim of whatever nature
including any claim for
remission of rent nor a right to withhold
rent, by reason of interruption of the supply of electricity or by
reason of any electrical
fault, even if such was caused by an act or
omission of the Plaintiff;
(d)
that in any event, the Plaintiff was not obliged to rectify any
defect unless the First
Defendant had notified it within fourteen
days of the occupation date;
(e)
that the First Defendant would have no claim for reduction or
abatement of rent not expressly
contained in the written lease; and
(f)
that all warranties express or implied were included in the written
lease.
[7.2]
SECOND EXCEPTION:
In regards to
Defendants' allegation that the rentals as claimed were indeed the
total all- inclusive rent and not the monthly rentals
as alleged by
the Plaintiff, such allegations are inconsistent with the lease which
provides:
(a)
that the total monthly rental would be payable monthly in advance on
the first day of every
month;
(b)
that the initial total monthly rental was R131 282.50 per month;
(c)
that the monthly rental would escalate as set out in the schedule to
the lease; and
(d)
that according to the said schedule, the rent would escalate to R143
097.92 with effect
from 1 February 2016.
[7.3]
THIRD
EXCEPTION:
Insofar as the
Defendants allege that, to the extent that the amounts claimed by the
Plaintiff for charges other than rent, would
not be due until the
First Defendant had received “
proof, summary and/or invoice
in respect thereof”.
in respect thereof, the Plaintiff
refers:
(a)
to its particulars of claim in which the Plaintiff alleges that it
claims the amounts calculated
as set out in annexure "C"
thereto from which it is apparent that amounts other than rent are
for electricity, refuse
and interests; and
(b)
the written agreement of lease which provides when these amounts fall
due for payment and
it does not provide that such amounts would only
be due upon receipt by the First Defendant of proof, summary and/or
invoice in
respect thereof.
[8]
In regards to all three grounds of exception, the Plaintiff contends
that such allegations are inconsistent with the written
lease
agreement and are accordingly vague and embarrassing, alternatively,
do not disclose a defence.
[9]
It his very concise heads of argument,
Mr.
Bingham
, on
behalf of the Plaintiff, referred me to the matter of
Trope v
South African Reserve Bank and Another
1992 (3) SA 208
(TPD)
in regards to the element of
"vagueness and embarrassment"
and the matter of
Levitan v New Haven Holiday Enterprises
CC
1991 (2) SA 297
(CPD) in regards to the element of
prejudice as requirements for an exception to be upheld.
[10]
According to Mr.
Bingham.
because the allegations in the plea
and counterclaim are inconsistent with the written terms of the
lease, the pleadings are accordingly
contradictory and whereas they
are not pleaded in the alternative they are therefore vague and
embarrassing. In
Trope v South African Reserve Bank
supra
it was confirmed that 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
an
embarrassment of such a nature that the excipient is prejudiced. In
Levitan v New Haven Holiday Enterprises CC
supra,
Conradie J said the following:
"Prejudice
to a litigant faced with an embarrassing pleading must ultimately lie
in an ability properly to prepare to
meet his oppone
n
'
s
t
case".
At
p. 2981- J .
[11]
Both the matters referred to by
Mr. Bingham
dealt with an
exception on the basis of being vague and embarrassing and was this
in fact the basis on which argument was advanced
on behalf of the
Plaintiff in regards to the present exception raised.
[12]
Of importance is that in the
Trope
-
matter the
Court was dealing with averments in the pleadings which were
contradictory. McCreath J also referred to pleadings "...
which
leaves one guessing
as
to its actual meaning".
The
Plaintiff in the present matter, however. is not dealing with
contradictory allegations but indeed with allegations which are,
according to the Plaintiff, inconsistent with the contents of the
written lease agreement. At this stage already I wish to indicate
that we are not dealing with pleadings both in regards to the plea as
well as the counterclaim by the Defendants which indeed leaves
one
guessing as to its actual meaning or which can be read in any one of
a number of ways.
[13]
The two grounds on which an exception may be raised, is a pleading
being vague and embarrassing, alternatively the pleading
not
disclosing a cause of action or defence. The terms
"vague and
embarrassing"
should not be taken into isolation, but is
indeed meant to be used and considered in conjunction with each other
to see what the
end result is. In plain words. with reference to the
words used in the
Trope
-
matter, a litigant who
intends raising an exception to a pleading, should ask itself whether
the allegations as contained in the
particular pleading is of such a
nature that the relevant litigant is so
"embarrassed"
that he/she is indeed confused in respect of what is actually
meant in the pleading to which such a party intends raising an
exception.
[14]
If one considers the plea and counterclaim in the present matter, it
cannot be said that the allegations contained therein
are of such a
nature to leave one guessing as to
its actual meaning. The
question then remains
to be answered is whether the mere alleged inconsistency referred to
by the Plaintiff renders the relevant
pleadings excipiable.
[15]
Mr. Snyman
on behalf of the Defendants referred me to the
principle that exceptions are generally not appropriate procedure to
settle questions
of interpretation. In
Picbel Groep
Voorsorgfonds v Somerville
2013 (2) ALL SA 692
(SCA)
the Court confirmed that the proper approach is that an excipient
bears the burden of persuading the Court that upon every
interpretation which the particulars of claim and any agreement on
which they rely can reasonable bear, no cause of action is disclosed.
In the present matter therefore, if the relevant clauses of the lease
agreement could reasonably bear any meaning that supported
a defence
or then also a cause of action in regards to the counterclaim as
advanced by the Defendants, the exception should fail.
[16]
In
Callender-Easby v Grahamstown Municipality
1981 (2)
SA 813
(ECO) Howie J (as he then was) said the following:
“
What
is clear is that the uncertainty attaching
to
the pleadings
intention cannot avail the third party unless he shows that on either
construction Defendant's claim is excipiable”
[17]
Again, as far as the present pleadings are concerned and in
particular the plea and counterclaim, there can be no uncertainty
of
what the intention of the Defendants were in pleading as they had
done.
[18]
In
Glaser v Heller
1940 (2) PH F 159, it was stated
that the true object of an exception is either, if possible to settle
the case in a cheap and easy
fashion or to protect oneself against an
embarrassment which is so serious as to deserve the costs, even
of an exception.
[19]
In
Barclays National Bank Ltd v
Thompson
1989
(1) SA 547
AD Van Heerden JA confirmed that save for exceptional
cases, such as those where a Defendant admits the Plaintiff's
allegations
but pleads that as a matter of law, the Plaintiff is not
entitled to the relief claimed by him, an exception
to a plea should consequently
also
not be allowed unless, if upheld it would obviate the leading of
unnecessary evidence. Of further importance is that it was
further
stated that an exception may not be taken to part of the plea unless
it is self-contained, amounts to a separate defence
and can therefore
be struck out without affecting the remainder of the plea.
[20]
In
McKelvey v Chowan N.O.
1980 (4) SA 525
Zit was
confirmed that the first principle in dealing with matters of
exception is that, if evidence can be led which can disclose
a cause
of action alleged in the pleadings, that particular pleading is
not excipiable. Furthermore, a pleading is only excipiable
on the
basis that no possible evidence led on the pleading can disclose a
cause of action.
[21]
In
Sun Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA 176
AD Nestadt JA stated the following at 184 E - F:
"The
mere notion
or
possibility that evidence
of
surrounding
circumstances may influence the interpretation
of a
contract
does not necessarily operate to debar
a
Court from deciding
the issue on exception."
[22]
In this regard reference was further made to the matter of
Davenport
Corner Tea Room (Pty) Ltd v Joubert
1962 (2) SA 5
where the
following was stated at 716 B - E:
"There
must, I think, be something
more
than
a
notional or
remote
possibility. Usually that something
more
can be
gathered from the pleadings and the facts alleged or admitted
therein. There may be
a
specific allegation in the pleadings
showing the relevance
of
extraneous facts or there may be
a/legations from which it may be inferred that further facts
affecting the interpretation may reasonably
possibly exist. A measure
of conjecture is undoubtedly both permissible and proper but the
shield should not be allowed
to
protect the Respondent where
it is composed entirely of a conjectural or speculative hypothesis,
lacking any real foundation in
the pleadings
or in the
obvious
facts.
"'
[23]
A further principle which should also be taken into account in
regards to exception, is that the pleadings must be read as
a whole
and in deciding an exception "a
Court is not playing games,
blindfolding itself'.
(As per Harms JA in
Telematrix (Pty)
Ltd v Advertising Standards Authority SA
2006(1) SA 461
(SCA)).
[24]
As already stated above, it cannot be said that the plea nor the
counterclaim can be described as being vague and embarrassing.
However, although
Mr. Bingham
did not base his argument
thereupon, it should be investigated whether the particular portions
of the plea and counterclaim respectively,
do contain allegations
which disclose a defence in regards to the plea and a cause of action
in regards to the counterclaim. In
this regard the two exceptions in
regards to the two different pleadings will be dealt with separately.
AD
PLEA:
FIRST
EXCEPTION:
[25]
In response to the Plaintiff's allegation to the effect that the
Plaintiff fulfilled its obligations in terms of the lease
agreement,
the Defendants pleaded that the Plaintiff failed to give beneficial
occupation of the lease premises to the First Defendant
from or about
1 July 2015, being the date of occupation, in that the leased
premises were not suitable to operate a carpentry or
joinery workshop
from as envisaged in the lease due to,
inter alia,
insufficient
or interrupted electricity supply to and/or inadequate electrical
installation to the lease premises.
[26]
It is not quite clear from the contents of the plea as a whole
whether the Defendants plead that because of the fact that the
Plaintiff did not fulfil its obligations in terms of the agreement,
as alleged, the Defendants, and in particular the First Defendant,
is
not liable towards the Plaintiff for the amount as claimed. It would
rather appear that the Defendants rely on the other two
parts of the
Defendants' defence as contained in the two further grounds of
exception to deny liability for the amount as claimed.
As already
stated, the pleadings need to be considered as a whole. This part of
the Defendants' plea appears not to
go to the root
of the Defendants' defence in regards to the denial of
liability. With reference to the allegations
pertaining to liability,
the Defendants do not refer to the non-fulfilment of the obligation
pertaining to the
11beneficia
l
occupation"
as part of denying liability towards the Plaintiff. The exception in
this regard can therefore not succeed.
SECOND
EXCEPTION:
[27]
The Defendants further pleads that the total all-inclusive rental
payable in terms of the lease for the period from 1 July
2015 to 31
January 2016 was the amount of R131 282,50 plus VAT whilst the total
all-inclusive rental payable by the First Defendant
to the Plaintiff
in respect of the lease for the period from 1 February 2016 to 31
March 2016 was the sum of R143 097,92 plus VAT.
[28]
In this regard
Mr. Bingham
referred me to the contents of
annexure “
A
”,
being the schedule to the
lease agreement upon which the Plaintiff relies. In this schedule
included in the heading on
"lease periods",
the
following appears:
"From:
01/07/2015 to 31/01/2016- R131 282,50;
01/0212016-
31/03/2016- R143 097.92".
[29]
This part of the documentation may have assisted the Defendants for
the said allegations contained in their plea (and in fact
may have
prompted the Defendants to raise the defence they have in this
regard), had it not been for a further part of the said
schedule,
being annexure "A" to the particulars of claim, which reads
as follows:
"Initial
total monthly rental (excluding VAT) : R131 292.50."
[30]
From these latter words it is obvious that the amounts referred to in
the section named as
"Lease Periods"
could only have
been in regards to the monthly rental payable by the First Defendant
and not the total amount of rental payable
as contended by the
Defendants.
[31]
In the absence of any allegations in the Plea showing the relevance
of extraneous facts affecting any other interpretation
for the
contention as advanced by the Defendants in this regard, Defendants'
Plea does not disclose a Defence on this basis
THIRD
EXCEPTION:
[32]
In denying liability towards the Plaintiff, the Defendants further
plead that apart, from the amounts referred to being all
inclusive
rentals, that the amount claimed by the Plaintiff incorporates
amounts for other charges and/or amounts other than rental,
for which
the First Defendant has to date, not received any proof, summary or
invoice, in the absence of which the Plaintiff is
barred from
claiming such amounts from the First Defendant and in respect of the
lease. From annexure "C" to the Plaintiffs
particulars of
claim, which is the document setting out the calculation of the
amount as claimed by the Plaintiff, it indeed appears
that the only
charges in addition to the rental payable by the First Defendant to
the Plaintiff, are charges pertaining to refuse
removal as well as
electricity supply.
[33]
In this regard
Mr. Snyman
referred me to clause 44 of the
lease agreement. This clause deals with the delivery of statements.
In particular
Mr. Snyman
referred me to clause 44.3 which
reads as follows:
"All and
any utilities, including but not limited to, rates and taxes, water,
electricity, sewerage, refuse and levies charged
to the tenant by the
landlord and which charges appear on the tenant's monthly invoice
will be accepted by the tenant to be both
true and correct and will
constitute prima facie evidence in any litigation between the
patties, provided that the tenant does
not raise any query in regards
thereto within fourteen (14) days from date of invoice."
[34]
This is the clause which
Mr. Snyman
relies upon in support of
the contention that the Plaintiff was obliged to supply the First
Defendant with
"proof, summary and/or invoice"
in
respect of refuse removal and electricity in the absence of which the
Plaintiff is barred from claiming such amounts from the
First
Defendant.
[35]
However, clause 44.1 of the lease agreement reads as follows:
“
Any
failure by the landlord to render any statement or the late receipt
or non-receipt thereof by the
tenant should not in
any way detract from the tenant's obligations to effect
payment of all amounts as set out in terms of this
lease
on
the
due
date for
payment thereof.”
[36]
Mr. Bingham
further referred me to the contents of clause 24
of the agreement where amongst others in clause 24.8.1, the following
appears:
"Notwithstanding
any provisions
to
the contrary, should
-
24.8.1.1
the landlord not have received any accounts from any local
authority; or
24.8.1.2
at any time, any of the meters, sub-meters, or common
sub-meters referred to in this clause 24 fail, then the tenant shall
be liable
for
and shall pay an
amount
equal
to the average meter charge per month for the
lease premises calculates over the proceeding
9
(six)
months and apply for the period under consideration. The
parties shall respectively notify each other in writing upon any one
of
them
discovering such
a
metering defect."
[37]
Nowhere in the entire agreement is there any indication to the effect
that any charges other than rent, is only due until the
First
Defendant had received the
"proof, summary and/or invoice"
in respect thereof. In addition there is no basis to find otherwise
than that the contention as advanced by the Defendants in this
regard
compose entirely on conjecturable and speculative hypothesis lacking
any real foundation in the pleadings or in the obvious
facts.
AD
COUNTERCLAIM:
FIRST
AND SECOND EXCEPTION
:
[38]
The Defendants' counterclaim against the Plaintiff appears to be
founded on the
condictio indebiti
in that the First Defendant
made certain payments to the Plaintiff in the
bona fide
belief
that certain amounts were payable by the First Defendant to the
Plaintiff whilst such belief was incorrect. From the counterclaim
it
cannot be ascertained how the amount of R1 010 062.02 which was
allegedly paid in error is calculated. It does, however appear
that
the basis for such a counterclaim might be founded on, amongst others
the allegations as contained in paragraph 13 of the
Defendants' plea.
Paragraph 13 of the Defendants' plea contains the allegations
pertaining to the second and third exceptions dealt
with above and
should the exceptions in regards to these allegations applicable to
the counterclaim also be upheld.
[39]
As is practice, the Defendants should be granted the opportunity to
file amended pleadings if so advised. Therefore the following
order
is made:
ORDER:
1.
The exception in regards to the plea, based on the second and third
ground is upheld.
2.
The exception in regards to the counterclaim in regards to both
grounds is upheld.
3.
Defendants' plea as well as counterclaim are set aside.
4.
Defendants are granted leave to amend their plea and counterclaim
within twenty one (21) days after this order.
5.
Defendants are ordered to pay the costs of the exception m regards to
both the plea as well as the counterclaim.
____________________
J.J.F.
HEFER, AJ
On
behalf of the Plaintiff/Excipient :
Adv. M. Bingham
Instructed by Kritzinger
Ellias Attorneys
c/o Symington & De Kok
BLOEMFONTEIN
On
behalf of the Defendants:
Adv. C. Snyman
Instructed by Kramer,
Weihmann & Joubert Inc.
BLOEMFONTEIN