About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Free State High Court, Bloemfontein
SAFLII
>>
Databases
>>
South Africa: Free State High Court, Bloemfontein
>>
2016
>>
[2016] ZAFSHC 225
|
|
Member of the Executive Council of the Department of Co-operative Governance, Human Settlements and Traditional Affairs, Free State Province v Scenic Route Trading 802 CC and Another (5158/2013) [2016] ZAFSHC 225 (22 December 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
CASE
NO : 5158/2013
In
the matter between :
THE
MEMBER OF THE EXECUTIVE COUNCIL
OF
THE DEPARTMENT OF CO-OPERATIVE
GOVERNANCE,
HUMAN SETTLEMENTS AND
TRADITIONAL
AFFAIRDS, FREE STATE
PROVINCE
PLAINTIFF
v
SCENIC
ROUTE TRADING 802
CC
1
ST
DEFENDANT
JORE
CONSTRUCTION
CC
2
ND
DEFENDANT
CORAM
:
MURRAY,
AJ
HEARD
ON
:
2
SEPTEMBER 2016
JUDGMENT
BY
:
MURRAY,
AJ
DELIVERED
ON
:
22
DECEMBER 2016
[1]
The First Defendant has excepted against the Particulars of Claim of
the Plaintiff who sued two Defendants in the same action,
but on two
different causes of action: unjust enrichment and breach of
contract. The First Defendant avers that the summons
is therefore
vague and embarrassing.
[2]
The Plaintiff is the Member of the Executive Council of the
Department of Co-operative Governance, Human Settlements and
Traditional
Affairs of the Free State Province. The First Defendant
is Scenic Route Trading 802 CC whom the Plaintiff had commissioned to
supply
building materials for low-cost housing to be built by the
Second Defendant, Jore Construction CC.
[3]
The Plaintiff pre-paid the First Defendant a total amount of
R3,931,632.00 under the erroneous assumptions that the First
Defendant
would supply building materials on behalf of the Plaintiff
to the Second Defendant for the construction of the said housing, and
that, accordingly, the debt will become due to the First Defendant,
or that such building material will be legally payable to the
First
Defendant by the Plaintiff. The Plaintiff now reclaims the money from
First Defendant on the basis of unjust enrichment.
The
Plaintiff alleges that the monies were paid over
sine
causa
and comprise State funds whose payment to the First Defendant
constituted “irregular, unauthorised, fruitless and wasteful
expenditure” as contemplated in
Section 1
of the
Public Finance
Management Act, 1 of 1999
. The Plaintiff alleges that on that basis
it is entitled to recover such unauthorised and irregular payments
from the First Defendant
for unjustified enrichment.
[4]
The Plaintiff contracted the Second Defendant to build 400 houses in
Thaba Nchu (“
the
housing project
”).
The contract had to be extended on four different occasions because
of problems which the Second Defendant encountered,
allegedly because
of,
inter
alia,
the non-delivery of building materials. The Plaintiff alleges
that the Second Defendant was contractually and legally bound
to
render a true, proper and full statement of account to the Plaintiff
in respect of the housing project; and to consent to and
participate
in debatement of such accounts with the Plaintiff. The
Plaintiff then sued the Second Defendant for breach of
contract in
that it failed or neglected or refused to render to Plaintiff such
statement of account, which included,
inter
alia
proper records of all building materials supplied to it, if any, by
the First Defendant for the housing project; and/or all
orders
for building materials placed by it to the First Defendant;
and/or all invoices issued by the First Defendant regarding
building
materials supplied to the Second Defendant and their prices;
and/or all certified invoices which prove receipt of
the said
building material.
[5]
The First Defendant objected to the Plaintiff’s Particulars of
Claim on several grounds, namely :
5.1
That the Plaintiff sues First and Second Defendant in the same action
but on two different legal grounds,
namely enrichment and breach of
contract;
5.2
That the claim against Second Defendant is based on a contract for
housing units or a housing project without
specifying that it
concerns “low-cost housing”;
5.3
That paragraph 14 of the Particulars of Claim claims that the
Plaintiff is entitled in terms of Uniform Rule
10(3) to sue both
Defendants in the same action, but does not specify “
the
same questions of law and/or facts”
pertaining to the two Defendants in terms of which it is entitled to
do so. It was submitted, furthermore, that paragraph 14 is
merely a
conclusion without any supporting
facta
probanda
and
therefore does not comply with
Rule 18(4)
;
0.4
9in; line-height: 200%">
5.4
That no connection is drawn between the “building materials”
with reference to the First Defendant
and the “housing project”
with reference to the Second Defendant and that, moreover, it
specifies that the “building
material” is intended for
“low-cost housing” whereas there is no reference to
“low-cost housing”
pertaining to the Second Defendant;
5.5
The First Defendant therefore avers that paragraph 14 does not
establish any clear connection between the
First and Second
Defendants and does not specify or make it clear why both may be sued
in the same action in terms of Uniform
Rule 10(3).
[6]
Adv C Ploos van Amstel SC, and with him Adv C Snyman, appeared on
behalf of the Plaintiff. Adv S Reinders appeared for
the First
Defendant (“
the
Excipient”
).
[7]
Mr Reinders submitted that the Plaintiff is obliged to make out a
proper case with good reasons for its alleged entitlement
to rely on
Rule 10(3)
, failing which either of the Defendants would be entitled
to raise a special plea of misjoinder. According to him, the
Plaintiff,
instead of setting out the material facts on which it
relies for its claims, in paragraph 14 merely pleaded a conclusion
with no
facta
probanda
,
and no indication of the questions of law or questions of fact it
relies on.
[8]
Mr Reinders, with reference to
Imprefed
(Pty) Ltd v National Transport Commission
[1]
,
described the object of pleading as to define the issues with
sufficient particularity to enable the other party to know what case
it has to meet and to enable it to reply thereto. With reference to
Buchner
v Johannesburg Consolidated Investments Co Ltd
[2]
he pointed out that a summons which is merely based on conclusions
and opinions instead of pleading the material facts upon which
a
plaintiff relies, is defective. He submitted that it is neither
apparent nor clear from the Plaintiff’s Amended Particulars
of
Claim why or on what basis it is entitled to sue the Defendants in
one action. He accordingly asked the Court to set aside the
Plaintiff’s Particulars of Claim and to grant the Plaintiff
leave to amend its Particulars, failing which that leave be granted
for the First Defendant to approach the Court to have the Plaintiff’s
claim dismissed.
[9]
Mr Ploos van Amstel SC, on the other hand, asked for the exception to
be dismissed with costs, on various grounds. He
stated, first
of all, that the exception does not strike at the formulation of the
root of the cause of action while the
relevant law makes it
clear that exceptions that the pleading is vague and embarrassing may
only be taken when the vagueness
and embarrassment strikes at the
root of the matter. See, for instance,
Jowell
v Bramwell-Jones and Others
[3]
and
Nel
and Others NNO v McArthur and Others
[4]
.
Such an exception, furthermore, may not refer to only certain parts
of the Particulars of Claim, as the present exception
does by
focusing mainly on paragraph 14 of the Particulars of Claim. It
is the whole cause of action which must be demonstrated
to be vague
and embarrassing
[5]
.
[10]
In
Lockhat
and Others v The Minister of the Interior
[6]
the Court held that a statement is “vague” when it is
either meaningless or capable of more than one meaning.
It
determined that a reader must be able to extract from the statement a
clear single meaning. It is “embarrassing”
if it
cannot be gathered from the statement what ground the pleader relies
on. As Davis AJA in
General
Commercial and Industrial Finance Corporation Ltd v Pretorius
Portland Cement Co Ltd
[7]
stated:
“
After all,
we have to look at the matter from the point of view of the party who
is faced with a pleading of this nature. How is
he to know what case
he is called upon to meet?”
[11]
In
Nel
and Others NNO v McArthur
[8]
the Court cautioned, furthermore, that a pleading must be excipiable
on every interpretation reasonably attachable to it.
If a
Defendant is fairly able to plead to a Particulars of Claim, such
pleading can hardly be called vague and embarrassing. In
South
African National Parks v Ras
[9]
the Court made it clear that one is not to look too critically at a
pleading. Henochsberg J confirmed this in the
Lockhat
case
[10]
:
“
As long as a
declaration reasonably states the nature, extent and grounds of the
cause of action the Court will not as a rule strike
out paragraphs as
vague and embarrassing provided the information given is reasonably
sufficient and provided it does not appear
to the Court that the
particulars cannot be pleaded to by the defendant.”
[12]
The Court emphasised, furthermore, in
Venter
and Others NNO v Barrit Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
[11]
that the information in the Particulars of Claim generally need only
be sufficient for the Defendant to plead thereto. In
South
African National Parks v Ras
[12]
the Court went so far as to hold that unless the excipient can
satisfy the Court that there is a real point of law or a real
embarrassment,
an exception alleging that a pleading is vague and
embarrassing should not be allowed.
[13]
The excipient in the present case did not allege any prejudice. The
only complaint was against the apparent lack of a connection
between
the cases of the two Defendants and the reference to low-cost housing
regarding the payments to the First Defendant which,
it was argued,
would lead to speculation about whether the housing project and the
low-cost housing mentioned in the respective
claims refer to the same
project. The purpose of the exception, it was submitted, was to
save the First Defendant from having
to speculate about this if the
matter proceeds. And to save it from speculation about the “same
questions of fact and law”
on which the joinder is based.
[14]
Mr Ploos van Amstel SC, correctly so in my view, argued that the
Court needed to follow a pragmatic approach by looking at
the
pleadings and the Particulars of Claim as a whole rather than at one
or two paragraphs on their own as the First Defendant
has done. This
approach is in accordance with the approach to exceptions which aver
that a pleading is vague and embarrassing,
namely that the excipient
needs to demonstrate that the entire cause of action is vague and
embarrassing, not just one or two individual
paragraphs.
[15]
The onus is on an excipient to show both vagueness amounting to
embarrassment and embarrassment amounting to prejudice. (See
Nel
and Others NNO v McArthur and Others.
[13]
)
The Court must decide on the particular facts of each case whether an
excipient will be prejudiced if he is compelled to
plead to the
Particulars of Claim in the form to which he objects.
[14]
[16]
In
Nel
and Others NNO v McArthur and Others
[15]
the Court explained that an exception alleging vagueness and
embarrassment involves a twofold consideration:
16.1
Whether the pleading lacked particularity to the extent that it is
vague (in the sense of rendering it meaningless or
capable of more
than one meaning), and
16.2
Whether the vagueness caused embarrassment of such a nature that the
excipient is prejudiced.
[17]
The Court stated, furthermore, that the excipient’s ability to
produce an exception-proof plea is neither the only, nor
the most
important test. The Court therefore needs to consider, first of all,
whether the pleading lacks particularity to the extent
amounting to
vagueness amounting to embarrassment, and secondly to do a
qualitative analysis of such embarrassment. It
then needs
to keep in mind that it is only where embarrassment is so serious as
to cause prejudice to the excipient that the exception
would be
allowed. In doing such evaluation a charitable test was
to be used in deciding whether a cause of action had
been established
since a pleader is entitled to a benevolent interpretation.
[18]
Mr Ploos van Amstel SC pointed out the relevant facts alleged in the
Particulars of Claim, namely:
18.1
That the Plaintiff gave the first Defendant almost R4 million in
advance with instructions to supply building material
to the Second
Defendant. The Plaintiff does not know what happened to the money.
It therefore alleges that it was paid
sine
causa
and
demands that the First Defendant accounts for the money. It
alleges that the First Defendant was unjustly enriched because
Plaintiff gave it the money on the erroneous assumption that it would
use the money to supply building materials to the Second
Defendant.
18.2
The Plaintiff awarded the Second Defendant a contract to build the
housing project and assured it that First Defendant
would supply it
with the necessary building material. Second Defendant was to build
400 houses and to report fully to the Plaintiff
during the
construction process, including about whatever happened between First
and Second Defendants regarding the building materials.
Neither
of the two Defendants had been willing to report to the Plaintiff,
either about the building material or about the housing
project.
Second Defendant is therefore sued to produce statements of account
and to participate in the debatement thereof.
[19]
I agree with Mr Ploos van Amstel SC that the Particulars of Claim are
not so wanting in clarity that the First Defendant should
have
difficulty in pleading thereto.
19.1 Regarding the
First Defendant the Amended Particulars of Claim sets out the
following :
“
That a total
amount of R3,931,632.00 was paid by the Plaintiff to ‘…
the First Defendant on the assumptions by the
DHS that
13.1
the payments are made in advance in that a debt will become due to
the First Defendant in that building material
to the value of
R3,931,632.00 will be supplied by the First Defendant on behalf of
the DHS to the Second Defendant for the construction
of low-cost
housing; and/or
13.2
such building material will be legally payable by the DHS to the
First Defendant;
both assumptions which thereafter,
proved to have been incorrect and false’.”
19.2
Regarding the Second Defendant the Plaintiff alleges in its Amended
Particulars of Claim that :
(a)
“
It
concluded a written building contract for the construction by Second
Defendant for and on behalf of the Plaintiff, of a number
of houses;
(b)
Which
agreement the Second Defendant breached by,
inter
alia
,
“... failing or neglecting or refusing to render the Plaintiff
a full, proper, complete and adequate statement of account
in respect
of the housing project, comprising of the following documents and/or
information, including but not limited to :
7.1
…..
7.2
…..
7.3
…..
7.4
…..
7.5
proper records of all building materials supplied to
it, if any,
by
First Defendant
for the housing project; and/or
7.6
all orders for building materials placed by it from the
supplier (the
First Defendant); and/or
7.7
all invoices issued by the building material supplier
(the First
Defendant) regarding building materials supplied to it and the prices
therefore; and/or
7.8
……
7.9
price lists for building material agreed upon by it and
the building
material supplier (the First Defendant); and/or
7.10
….
7.11
….
7.12
…..
7.13
lists of expenditure on the housing project.”
[20]
I agree that taken with the other express averments appearing in the
Plaintiff’s Amended Particulars of Claim, the First
Defendant
could be left in little doubt as to why the action had been brought
against it in the same papers as the action against
the Second
Defendant, and as to why, “…
on
face value …”
and contrary to what has been suggested for and on behalf of the
First Defendant regarding the Plaintiff’s causes of action,
such causes of action have everything to do with each other.
[21]
In my view the connection between the First and Second Defendants is
clear from the passages of the Plaintiff’s Amended
Particulars
of Claim quoted and referred to above. I have to agree that there can
be no doubt, contrary to what has been submitted
on behalf of the
First Defendant and on any interpretation of the Amended Particulars
of Claim, that the dispute arising between
the two parties depends on
the determination of substantially the same question of law and/or
fact. It is clear from the passages
quoted above that the supply of
or failure to supply building material by the First Defendant to the
Second Defendant is paramount
in the Plaintiff’s causes of
action against both First and Second Defendants.
[22]
In
Jowell
v Bramwell Jones
[16]
it was stated that what the Plaintiff is required to furnish, is not
a completed puzzle, but merely an outline of the case.
“
The outline
may be asymmetrical and possess rough edges which are not obvious
until actually explored by evidence. Provided the
Defendant is given
a clear idea of the material facts which are necessary to make the
cause of action intelligible, the Plaintiff
will have satisfied the
requirements”
.
[23]
The
basic
requirement is that the Defendant must be given a clear enough
exposition of the Plaintiff’s case that it is able to take
instructions from the client and file an adequate response to the
claim in the form of a plea, and as explained in
Absa
Bank Ltd v Boksburg Transitional Local Council
[17]
such
plea may even consist of a bare denial of all the averments in the
Particulars of Claim, just as long as there is no ambiguity
in such
denial.
[18]
[24]
The First Defendant averred that the Particulars of Claim did not
comply with Uniform
Rule 18(4)
which requires that every pleading
sets out the material facts on which the pleader relied for his claim
with sufficient particularity
to enable the opposite party to reply
thereto. But, as in the present case, Particulars of Claim may fail
to comply with
Rule 18
without being vague and embarrassing, as held
in
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd v Marthinussen
[19]
.
[25]
In accordance with what the Court pointed out in
McKelvey
v Cowan NO
[20]
,
namely that:
“
if evidence
can be lead which can disclose a cause of action alleged in the
pleadings, that particular pleading is not excipiable.
A pleading is
only excipiable on the basis that no possible evidence lead on the
pleading can disclose a cause of action”
I
am of the view that in the present case, the pleading is not
excipiable since evidence can be lead to fill in the ‘missing
pieces’ in the “puzzle” to further prove the
connection between the two Defendants.
[26]
Another reason why the exception in my view cannot succeed is that
the First Defendant has not met the requirement that
“
save in the
instance where an exception is taken for the purpose of raising a
substantive question of law which may have the effect
of settling the
dispute between the parties, an excipient should make out a very
clear, strong case before he should be allowed
to succeed”.
(
See
Colonial
Industries Ltd v Provincial Insurance Co Ltd
[21]
.)
[27]
That approach has been consistently followed by the Courts. It
is summarised as follows :
“
The Court
should not look at the pleading with a magnifying glass of too high
power. It is the duty of the Court when an exception
is taken to a
pleading first to see if there is a point of law to be decided which
will dispose of the case in whole or in part.
If there is not then it
must see if there is an embarrassment which is real as a result of
the faults in the pleading to which
exception is taken. Unless the
excipient can satisfy the Court that there is such a point of law or
such real embarrassment the
exception should be dismissed.”
[22]
[28]
The onus is on the First Defendant, therefore, to show embarrassment
to the extent that it cannot plead to the Particulars
of Claim or
know what the case against it is. (See
Nel
and Others NNO v McArthur and Others
[23]
.
)
In my view it has not done so and has not shown the serious prejudice
required for such an exception to be allowed if one
indeed looks at
the Particulars of Claim as a whole and not just at paragraphs 13 and
14 thereof.
[29]
It is clear from the Particulars of Claim, paragraphs 1(a) and (b),
that the Plaintiff is the Government Department,
previously known as
the Department of Housing, whose task it is to provide homes for poor
and homeless people in great numbers.
As Mr Ploos van Amstel SC
submitted, it is indeed common knowledge that the Plaintiff has built
hundreds of low-cost houses in
accordance with S 26(1) and (2) of the
Constitution. The Department’s task is to provide housing and
to provide the resources
for the building of the low-cost houses in
the housing projects. Anyone contracting or working with the
Department would
know that. In paragraph 18, with reference to
the First Defendant, the Plaintiff states that the money paid over to
it, was
State funds provided by the National Treasury for the
provision of low-cost housing. Again, anyone dealing with the
Plaintiff
would know that.
[30]
First Defendant complained about the various references to the
housing project as
“
houses”
,
“
housing
projects”
and
“
low-cost
houses”
being
confusing, but I agree with Mr Ploos van Amstel SC that if one reads
the particulars as a whole, instead of concentrating
on one or two
single paragraphs, common sense dictates that all of the references
are to low-cost housing.
[31]
Paragraph 1 of the claim against the Second Defendant clearly states
that the statement of account which it is requested to
deliver is in
respect of the housing project number F10080012 for the erection of
400
low-cost
houses
in Thaba Nchu. Similarly paragraph 13.1 of the monetary claim against
the First Defendant specifies that the payments of R3,931,632.00
were
for building material to be supplied by the First Defendant on behalf
of the Plaintiff
to
the Second Defendant for the
construction
of low-cost housing
.
[32]
There can therefore in my view be no doubt that it is clear
ex
facie
the
Particulars of Claim that the two claims against the two Defendants
are closely inter-connected and that the “housing
project”
and “low-cost housing” refer to the same project. Clearly
the subject matter of both claims is the building
material to be
provided to the Second Defendant. In my view there can
therefore be no confusion to such an extent that the
First Defendant
is unable to plead to the claim against it. After all, it dealt with
the Department, it knows what the money was
received for, and it
knows what it delivered or did not deliver. There is no reason,
therefore, for it not to be able to
plead to the Particulars of Claim
as they stand.
[33]
The allegation that the Particulars of Claim lack the material
averments to sustain the conclusion that the two Defendants
may be
sued in one action in my view has no merit either. It was alleged
that the necessary
facta
probanda
are absent. But I agree with Mr Ploos van Amstel that that is not
true: they are there and they are unambiguous.
[34]Clearly
the emphasis should not be on the housing and whether it is low-cost
or not, but on the building material which had
to be supplied and
utilised and accounted for. That is why the Second Defendant was
asked to give full particulars regarding its
deals with reference to
the building material. In the exposition of the Second Defendant’s
alleged breach of the building
contract, reliance is placed on the
building materials specifically in subparagraphs 7.5 to 7.12 to be
read with Annexures “POC1”
B and C. Items 5 to 12 of the
Schedule is a statement of account regarding building materials.
Page 28b lists documents regarding
building materials, with specific
reference to the housing project in Items 5 and 13.
[35]
It is apparent from the Particulars of Claim that building material
is the source of the claims against both the Second and
the First
Defendants. It is safe to infer that the payment was made for
First Defendant to supply building material to Second
Defendant for
the housing project. Plaintiff requires the First Defendant to pay
back that pre-paid State money which has remained
unaccounted for and
requires the Second Defendant to report what happened to the building
materials that the Plaintiff has paid
for.
[36]
Since it is State funds supplied by National Treasury, the Plaintiff
is not only entitled but also obliged to determine what
happened to
it, which entitles it to ask for the records from the Second
Defendant in accordance with the relevant provision in
the latter’s
Construction Contract.
[37]
The First Defendant’s complaint that the Particulars of Claim
lacked
facta
probanda
to support the conclusion that the two Defendants may be sued in the
same summons therefore has no merit. If the two Defendants
had not
been sued in the same action, the practical consequences could have
been divergent judgments regarding the same issue.
Two
different courts hearing the separate trials might have come to two
different conclusions as to whether the building materials
had indeed
been supplied since either Defendant would be uncooperative as a
witness in the other’s trial. For that
very reason Rule
10(2) and 10(3) make specific provision for joinder as long as there
is a real possibility that the same facts
are material in both
instances. Obviously if the matter is then heard as one action,
it is easier for the Court to determine.
[38]
In the present case substantially the same questions must be answered
by both Defendants. First Defendant has to account for
the money and
Second Defendant for the building materials. All the facts will then
be before the same Judge who would judge both
issues. “Joinder”
occurs when more than one party or more than one cause is combined in
a single action. The reason
is usually convenience to save time and
money.
[24]
It is a matter of
convenience to have all the parties before Court.
[39]
The First Defendant knows very well that the issue before the Court
is the question regarding what happened to the building
materials.
He, as supplier with no written procurement contract, has the onus to
explain what happened to the money and the supplies.
He was paid in
advance, allegedly
sine
causa
,
wherefore this action for enrichment against him.
[40]
The Court could also
mero motu
raise the question of
non-joinder. Mr Ploos van Amstel SC submitted that the Court would
have done so if they had not been sued
in one action. If the First
Defendant is not before Court and the Court were to find against him,
the matter against him would
be
res judicata
. If the First
Defendant were to say that he gave the supplies to the Second
Defendant and that the Court is to find that it had
been
misappropriated by the Second Defendant, the Court would be unable to
make such a finding against him if he is not before
Court. Obviously
the Court would therefore
mero motu
have raised non-joinder.
[41]
The supplier (First Defendant) has a real direct
bona
fide
interest in the contractor’s case and
vice
versa
.
Accordingly they need to be joined of necessity.
[25]
For joinder by necessity the test will be satisfied if there is a
possibility of a real and substantial interest. The Court will
then
not entertain the matter unless both parties are before Court.
Neither will it order a separation of trials as suggested by
the
First Defendant.
[42]
Even if the exception is dismissed, the First Defendant will still be
able to raise misjoinder in a special plea at the trial.
It is not
suffering any embarrassment or inability to plead. Even though both
parties have a real and substantial interest in each
other’s
cases, only the First Defendant is sued for almost R4 million. As
stated in Herbstein & Van Winsen
[26]
a person has the right to insist on being joined. Similarly the Court
has a discretion to say that it wants both parties before
it, even in
the absence of a direct and substantial interest.
[43]
In Herbstein & Van Winsen
[27]
the authors stated that the Rules of Court are not
intended to be exhaustive regarding joinder.
The Court still has a discretion to order joinder for the sake
of convenience in terms of the common law
[28]
.
In
Dendy
v University of the Witwatersrand
[29]
the Court held that although the questions of law and fact must
essentially be the same, that is not an absolute requirement.
A
number of Defendants may be joined if convenience so requires. The
Courts are clear that where there is a multiplicity of cases,
there
is the concomitant danger of different judgments by different Courts.
From a policy point of view that cannot be risked.
Wherefore, if
there is a reasonable prospect of overlap, convenience dictates
joinder to prevent conflicting judgments.
[30]
[44]
Rule 10(2) and
Dendy
v University of Witwatersrand
[31]
specifically provide for the prevention of a multiplicity of
judgments regarding the same subject matter. The Supreme Court
of Appeal in
Trustbank
v Western Credit Ltd
[32]
stated that the test was that even where claims regarding different
Defendants may be mutually exclusive, the Defendants may still
be
sued in one action if it is convenient. In the present matter the two
causes of action are unjust enrichment and breach of contract
which
are inconsistent, but in
Van
der Lith v Alberts
[33]
a Full Bench held that inconsistent grounds of action may still be
joined in the same action on grounds of convenience.
[45]
Mr Ploos van Amstel pointed out, furthermore, that if the two
Defendants had not been joined and the actions against both
Defendants proceeded to
litis
contestatio
,
the Plaintiff would have been entitled to apply for consolidation of
actions in terms of Rule 11
[34]
in any case.
[46]
I therefore agree with him that the submission that no factual basis
for the conclusion in paragraph 14 that the Plaintiff
is entitled to
join both Defendants in one action was provided, has no substance if
one has regard to the papers as a whole and
to the cross-references
between the two claims against the two Defendants relating to the
building material. It is clear
that the two Defendants have
concomitant and reciprocal obligations and that the two actions are
interwoven and intertwined to
the point that they must be joined.
[47]
Regarding the complaint about the different references to houses,
housing projects, low-cost housing, being confusing, I am
satisfied
that if paragraph 13 of the Particulars of Claim with reference to
paragraph 5.1 is read with prayer B1 in which it is
specifically
stated that the requested statement of account pertains to 400
low-cost houses built in Thaba Nchu, and if one takes
cognisance of
the fact that the Plaintiff is the Housing Department of the
Government that deals specifically with low-cost housing,
the
variable terminology cannot cause the Defendants any serious
prejudice. Both Defendants know with whom they dealt, what
they
were required to do and what they did indeed do or not do.
First Defendant should therefore have no problem with
pleading to the
Particulars as they stand. In view of the general principles of
pleading endorsed by Courts, namely to move away
from formality
towards simplicity, and if it is reasonably clear what the Defendant
is being sued for, then in the absence of prejudice
technical
objections would not be upheld.
[35]
[48]
I am therefore persuaded by Mr Ploos van Amstel SC’s argument
that the exception does not go to the root of the cause
of action,
and that it is not vague and embarrassing to the point that it causes
the First Defendant serious prejudice. It does
not prevent the First
Defendant from replying and does not prevent it from knowing what
case it has to meet.
[36]
[49]
In coming to the conclusion that this exception cannot succeed, I
rely on the requirement that an excipient in a case like
this
“
must make
out a very clear, strong case of substantial embarrassment before he
should be allowed to succeed”,
as
stated in
Francis
v Sharp and Others
[37]
and in
Trustees:
Bus Industry Restructuring Fund v Breakthrough Investments CC
[38]
.
In
my view the First Defendant has not made out such a case and the
exception can therefore not succeed.
[50]
There is no reason for costs not to follow the normal practice.
WHEREFORE
the following order is made:
1.
The
exception raised by the First Defendant is dismissed with costs,
including the costs occasioned by the employment of two counsel,
of
which one is a Senior Counsel.
__________________
MURRAY,
AJ
On
behalf of the Plaintiff : Adv C Ploos van
Amstel SC and
Adv
C Snyman
Instructed
by Mr L E Companie
Attorney
for Plaintiff
Phatsoane
Henney Attrorneys
35
Markgraaff Street
Westdene
BLOEMFONTEIN
On
behalf of First Defendant: Adv S Reinders
Instructed
by Mr J H Conradie
Attorney
for First and Second
Defendants
Rossouws
Attorneys
119
President Reitz Avenue
Westdene
BLOEMFONTEIN
[1]
1993 (3) SA 94
(A) at 107 C - E
[2]
1995 (1) SA 215
(T) at 216 I
[3]
1998 (1) SA 836
(W) at 899
[4]
2003 (4) SA 142 (T)
[5]
Jowell,
supra
, at 899 G
[6]
1960 (3) SA 765
[7]
1944 AD 444
at 454
[8]
2003 (4) SA 142 (T)
[9]
[2001] 4 ALL SA 380 (C)
[10]
1960 (3) SA 765
at 777 E
[11]
2008 (4) SA 639 (C)
[12]
2002 (2) SA 537
(C) at 541
[13]
2003 (4) SA 142 (T)
[14]
Venter v Baritt Venter v Wolfsberg Arch Investments,
supra
at
[17] at 645
[15]
supra
, at 147 A /B – B, E/F – F/G and H/I
[16]
1998 (1) SA 836
(W) at 913 F-G
[17]
1997 (2) SA 415
(W) at 422 C-D. See also Lockhat,
supra
,
at 777 E
[18]
Lockhat,
supra
, at 778 A
[19]
1992 (4) SA 466
(W) at 470 A
[20]
1980 (4) SA 525
(Z) at 426 D-E
[21]
1920 CPD 627
at 630
[22]
See : Joubert (Editor) Law of South Africa, Vol 3, Part 1 (1
st
Re-issue by Harms & Van der Walt, 1997) at para 186. See
also : South African National Parks v Ras,
supra
, at 541
[23]
supra
, at 148
[24]
Herbstein & Van Winsen, Vol 1, p. 208
[25]
Herbstein & Van Winsen, at 215 - 219
[26]
supra
, at 215
[27]
p. 219, footnotes 85 and 86
[28]
Rabinowitz,
1983 SA 415.
See also : p. 210, footnote 24 with
reference to Rabinowitz, par 419 E
[29]
[2005] ZAGPHC 39
;
2005 (5) SA 357
(W) at para. 71 to 75
[30]
Dendy v Wits,
supra
, at para. 73. See also : University
of Stellenbosch v JA Louw 1983 (4) SA 321 (A)
[31]
supra
at para. 69 - 74
[32]
1966 (2) SA 577 (AD)
[33]
1944 (TPD) 17
[34]
Van der Lith,
supra
, and Herbstein & Van Winsen,
supra
,
at 243 - 245
[35]
Joubert v Impala Platinum
1998 (1) SA 363
(BH) at 471 I
[36]
Imprefed (Pty) Ltd v National Transport Commission,
1993 (3) SA 94
(A) at 107 C - E
[37]
2004 (3) SA 230 (C)
[38]
2008 (1) SA 67
(SCA)