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[2017] ZAFSHC 171
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Eskom Holdings v Lesole Agencies CC; In re: Lesole Agencies v Eskom Holdings (2555/2016) [2017] ZAFSHC 171 (28 September 2017)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 2555/2016
In
the matter between:
ESKOM
HOLDINGS
Excipient
and
LESOLE
AGENCIES CC
Respondent
IN
RE
LESOLE
AGENCIES
CC
Plaintiff
and
ESKOM
HOLDING
Defendant
HEARD
ON:
30 June 2017
DELIVERED
ON:
28
September 2017
MHLAMBI,
J
[1]
The defendant excepted to the plaintiff’s combined summons and
the particulars of claim on the basis that it cannot plead
to them
because the said particulars of claim
were vague and embarrassing, alternatively, lacked averments to
sustain a cause of action, alternatively, did not disclose a cause
of
action.
[2]
The following two exceptions were raised to the plaintiff’s
cause of action premised on the following grounds:
The first exception:
2.1
that the plaintiff during or about June, alternatively during July
2014, submitted a quotation and
a written tender to the defendant
following an invitation and/or request by the defendant to submit
such a tender and quotation
for construction works that the defendant
named “Complete
renovations
to existing buildings at Jordan”
,
a copy of which was annexed as annexure “A” to the
particulars of claim; and
2.2
that on or about June 2014, the plaintiff was informed that its
quotation had been accepted and that
during the same period at
Bloemfontein, a written, alternatively an oral, in the further
alternative a partly written, partly oral
contract was concluded;
2.3
while annexure “A” to the plaintiff’s summons and
particulars of claim was not signed
by or on behalf of the defendant.
2.4
annexure “A” to the plaintiff’s summons and
particulars of claim clearly stated that
“
Notwithstanding
anything contained herein, this Agreement comes into effect on the
date when the tenderer receives one fully
completed copy of this
document, including the Schedule of Deviations (if any) together with
all the terms of the contract listed
above…”
and
notwithstanding the plaintiff averring in its particulars of claim
that “ …Plaintiff is not in possession of a
signed
copy of this document and believes a signed by it
copy is in the possession of the Defendant…” wished to
rely on such annexure “A”, either in part
or in total to
set up a cause of action against the defendant in the present
proceedings.
The second exception:
2.5
The plaintiff’s cause of action was premised on the allegations
that as a result of the defendant’s
alleged repudiation of the
agreement as pleaded and as set out in the plaintiff’s
particulars of claim, the plaintiff suffered
damages in the amount of
R1 580 000.00 which was allegedly due and payable.
2.6
Annexure “A” to the plaintiff’s particulars of
claim, which seemingly constituted
the agreement or at least a part
of the written agreement on which the plaintiff’s cause of
action is premised, stipulated
in paragraph Z9.1 that the Employer’s
liability to the plaintiff as the contractor, for indirect or
consequential loss, was
limited to zero rand.
The
plaintiff’s contentions
[3]
With reference to the first exception, the plaintiff contended that
facts were pleaded which gave rise to the contract and because
of the
background facts, a written, alternatively oral, in the further
alternative, partly written, partly oral contract was concluded
and
that the contract was in writing as per annexure “A” –
including parts C1, C2, C3 and C4 by reference. The
second component
of the complaint that annexure “A” was
unsigned by ESKOM ignored the
allegation in paragraph 9
of the particulars of claim that the plaintiff was not in possession
of a signed copy of the document
and believed that such a signed copy
was in the possession of ESKOM. This, the plaintiff contended,
was a perfectly permissible
way of pleading a written agreement.
[4]
It was contended furthermore that the contractual clause stating that
the contractor’s indirect or consequential loss
is limited to
R0.00 (zero rand) means that there is no limit at all. The contract
evidences no waiver of a right to claim consequential
damages as this
would mean that the plaintiff is nonsuited. The pleading cannot be
vague on the basis of this contractual term.
The intention of the
parties is a matter of substantive law, determined after evidence is
led as to the background and the surrounding
circumstances.
The
Short Contract (ECSC3)
[5]
Under the heading: C1 Agreements & Contract Data and the
sub-heading: C1.1 Form of Offer and Acceptance, the following is
stated:
“
This offer may be
accepted by the Employer by signing the form of Acceptance overleaf
and returning one copy of this document including
the Schedule of
Deviations (if any) to the tenderer before the end of the period of
validity stated in the Tender Data, or other
period as agreed,
whereupon the tenderer becomes the party named as the Contractor in
the conditions of the contract identified
in the Contract Data.”
Under the heading Acceptance, the following is stated: “By
signing this part of this Offer and
Acceptance, the Employer
identified below accepts the tenderer’s Offer……..
Acceptance of the tenderer’s
Offer shall form an Agreement
between the Employer and the tenderer upon the terms and conditions
contained in this Agreement and
in the Contract that is the subject
matter of this Agreement.”
[6]
The defendant contended that in as far as annexure “A”
bars any written, oral and/ or implied terms thereto (a so-called
variation clause), no reliance can be placed on tacit or implied
terms to the alleged agreement on which the plaintiff’s
cause
of action is premised. The defendant’s prejudice is obvious as
it is not only uncertain on which contradictory version
the plaintiff
wishes to rely at the trial to sustain a cause of action, but will be
put to the effort and expense of a plea and
preparation for trial if
the particulars of claim remain in their present form.
Applicable
principles
[7]
An exception that a pleading is vague and embarrassing will not be
allowed unless the excipient will be seriously prejudiced
if the
offending allegations were not expunged
[1]
.
The onus is on the excipient to show both vagueness amounting to
embarrassment and embarrassment amounting to prejudice. The court
would not decide by way of exception the validity of an agreement
relied upon or whether a purported contract may be void for
vagueness.
[8]
A commercial document executed by the parties with a clear intention
that it should have commercial operation, should not lightly
be held
to be ineffective
[2]
.
As a rule, courts are reluctant to decide upon exception questions
concerning the interpretation of a contract
[3]
.
While it is the function of the courts to resolve ambiguities and
uncertainties in disputed contractual terms, the exception is
generally not an appropriate vehicle for resolving such disputes
[4]
.
Application
of the principles
[9]
The plaintiff’s case depends upon the establishment of a
contractual relationship between it and the defendant. The conditions
set out in annexure “A”, the contract document, clearly
prescribe the processes to be followed in order to conclude
a
contract upon which one of the parties could rely to found a proper
claim
[5]
.
Where, in a proposed contract, the mode of acceptance is stipulated,
it is that mode that must be followed before a contract is
concluded.
An offeror may always prescribe the mode of acceptance of his offer
in order that a vinculum juris should be created
[6]
.
[10]
Conflicting interpretations may arise as to what was intended by
paragraph Z9.1 of the contract, but questions which may arise
in that
regard are to be determined at the hearing of the matter and are not
capable of being disposed of by way of exception.
Conclusion
[11]
It is clear that the conditions of the contract set out how it
was to be concluded and the formalities to be followed.
However, I am
reluctant to decide upon the second exception concerning the
interpretation of the contract and that this question
will be
determined at the hearing of the matter. In the premises, the first
exception must succeed and the following order is therefore
made:
ORDER
1.
The
first exception is upheld with costs;
2.
The
plaintiff is granted an opportunity to remove the cause of the
complaint within fifteen (15) days from the date of the granting
of
this order to amend its summons and the particulars of claim, failing
which the defendant is granted leave to approach this
court without
further notice for the striking out of the summons and the
particulars of claim.
____________
MHLAMBI,
J
Counsel
for the defendant: Adv. C Snyman
Instructed
by:
L E Companie
Phatshoane Henney Inc.
Cnr Markgraaff &
Kellner Streets
BLOEMFONTEIN
Counsel
for Respondents: Adv. S Grobler
Instructed
by:
L Bradley
Peyper Attorneys
Dynarc House
200 Nelson Mandela Drive
BLOEMFONTIEN
[1]
Erasmus: Superior Court Practice,
Volume 2 at BI-154 to B1-154A
[2]
Murray & Roberts Construction
Ltd V Final Properties (Pty)
1991 (1) SA 508
(A) at 514 E-F
[3]
Sun Packing (Pty) Ltd v Vreulink
1996 (4) 176 (A)
[4]
Francis v Sharp and Others
2004 (3)
SA 230
CPD
[5]
Lepogo Construction (Pty) Ltd v
Govan Mbeki Municipality [2015] 1 All SA 153 (SCA)
[6]
Westingham Brake & Equipment
(Pty) Ltd v Bilger Engineering (Pty) Ltd
1986 (2) SA 555
(A) at 573
F