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[2016] ZANCHC 7
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Momentum Group Limited v Maswil Finansiele Adviseurs CC and Others (1774/2012) [2016] ZANCHC 7 (16 September 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape High Court, Kimberley)
Reportable:
YES
Circulate
to Judges: YES
Circulate
to Magistrates: NO
Circulate
to Regional Magistrates: NO
CASE
NO: 1774/2012
DATE
HEARD: 09/09/2016
DATE
DELIVERED: 16/09/2016
In
the matter between:
MOMENTUM
GROUP
LIMITED
Plaintiff
and
MASWIL
FINANSIËLE ADVISEURS
CC
1
st
Defendant
JOSUA
DANIEL VAN DEN
HEEVER
2
nd
Defendant
BENJAMIN
VAN DEN
HEEVER
3
rd
Defendant
ANDRIES
JOHANNES LE
GRANGE
4
th
Defendant
MARTHINUS
JOHANNES
SPANGENBERG
5
th
Defendant
MONICA
JOHANNA LE
GRANGE
6
th
Defendant
ANDRIES
JOHANNES LE
GRANGE
7
th
Defendant
In
the exception between:
JOSUA
DANIEL VAN DEN
HEEVER
2
nd
Defendant / 1
st
Excipient
BENJAMIN
VAN DEN
HEEVER
3
rd
Defendant / 2
nd
Excipient
and
MOMENTUM
GROUP
LIMITED
Plaintiff
/ Respondent
Coram:
Olivier
J
JUDGMENT
Olivier
J:
[1.]
In
its particulars of claim the plaintiff, Momentum Group Limited,
claims repayment of commission and fees paid to the first defendant,
Maswil Finansiële Adviseurs CC, and also those paid to the
fourth defendant, Mr A J Le Grange, and for which the first defendant
is according to the plaintiff also liable.
[2.]
The
claim against the first defendant is, in the first place, based upon
a written broker agreement between plaintiff and the first
defendant
and, secondly and as far as the fourth defendant’s indebtedness
is concerned, upon a similar contract between the
plaintiff and the
fourth defendant, and an allegation that the fourth defendant’s
obligations in terms of that agreement
were subsequently taken over
by the first defendant. Copies of both broker agreements have
been annexed to the particulars
of claim, and the particulars
required by Uniform Rule 18(6) in respect of those agreements have
been pleaded in the particulars
of claim.
[3.]
The
claims against the second and third defendants, respectively Mr JD
Van den Heever and Mr B Van den Heever, are based upon suretyships.
[4.]
It
is not for present purposes necessary to further elaborate on the
case made out in the particulars of claim against the fourth
defendant, or against the fifth to seventh defendants, respectively
Mr MJ Spangenberg, Ms MJ Le Grange and another Mr AJ Le Grange.
[5.]
As
regards the plaintiff’s
locus
standi
to sue the second and third defendants on the basis of the
suretyships, the plaintiff pleaded that it acquired that right when
the rights and obligations of the original creditor were transferred
to it in terms of the provisions of section 37 of the
Long-term
Insurance Act
[1]
.
Before the amendment of that section by Act 45 of 2013, and indeed at
all times relevant to this matter, those provisions
read as follows:
“
No transaction to which a
Long-term insurer is a party and which constitutes an agreement by
which all or any part of the business
of a Long-term insurer is
transferred to another person, or by which a compromise, arrangement
or amalgamation… is effected…
shall have legal force
without the approval of the Court.”
[6.]
The
allegation of a transfer of rights and obligations has been excepted
to by the second and third defendants on the grounds:
6.1
that the wording of section 37(1) implies that there must have been
an agreement
between the plaintiff and its alleged predecessor in
title and that the plaintiff should in respect of such agreement have
complied
with the provisions of rule 18(6); and
6.2
that the plaintiff should in any event, and again with reference to
the provisions
of section 37(1), have pleaded whether the required
court approval had been obtained and, if so, when and where.
[7.]
The
provisions of rule 18(6) read as follows:
“
A party who in his pleading
relies upon a contract shall state whether the contract is written or
oral and when, where and by whom
it was concluded, and if the
contract is written a true copy thereof or of the part relied on in
the pleading shall be annexed
to the pleading.”
[8.]
Mr
Van Niekerk SC, counsel for the excipients, submitted that the
plaintiff’s failure to comply with the provisions of Rule
18(6)
in itself renders the particulars of claim vague and embarrassing,
and excipiable. In support of this submission he
referred to
Herbstein
& Van Winsen, The Civil Practice of the High Courts of South
Africa
,
5
th
Edition, Volume 1, page 572, where the learned authors state that a
failure to annex a document (or portion of it) relied upon
in breach
of Rule 18(6) “
will
lay the pleading open to exception
”
.
[9.]
No
reference was made to any supporting case law and the statement, in
its unqualified form, appears to be incorrect. As it
was put in
Venter
and Others NNO v Barritt Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
[2]
at 645 B – C:
“
[16] In this context it must be kept in mind
that compliance with rule of court 18 is a different matter to an
exception. Particulars
of claim may fail to comply with rule 18, thus
bringing into play rule 30 via rule 18(12), without being vague
and embarrassing.
[17]
The onus remains on the excipient to show both vagueness amounting to
embarrassment and embarrassment amounting to prejudice.
The court
must decide on the particular facts of each case whether the
excipient will be prejudiced if compelled to plead to the
particulars
of claim in the form to which he or she objects.
”
(Footnote omitted)
[10.]
The
mere fact of non-compliance with the requirements of Rule 18 would
not in itself render a pleading vague or embarrassing, or
excipiable
[3]
. The
excipient would in other words still have to show
[4]
that such non-compliance renders the pleading vague and embarrassing,
and indeed to such an extent as to cause prejudice
[5]
.
[11.]
I
therefore do not intend spending too much time on Mr Van Niekerk’s
argument that the provisions of Rule 18(6) would also
apply to an
agreement relied upon in making out a case that the plaintiff has
locus
standi
to sue. Suffice it to say that I could not find a single case
where it was held that a contract relied upon for purposes
of showing
locus
standi
,
as opposed to showing a cause of action, would be hit by the
requirements of Rule 18(6), and Mr Van Niekerk was unable to refer
me
to any such case.
[12.]
In
fact, there are strong indications that the
“
contract
”
envisaged
in Rule 18(6) would be a contract which constitutes the cause of
action or which constitutes a
“
link
in the chain”
of
the cause of action
[6]
.
[13.]
It
is in any event debatable whether it could be said, for the purposes
of Rule 18(6), that the plaintiff relied upon an agreement
in
alleging a transfer of rights and obligations in terms of section 37
of the Act. In making the allegation of such a transfer
the
plaintiff made no mention of any agreement at all, neither was
reference made to the requirement of such a transaction or
agreement. Could it be said that the plaintiff, in alleging a
transfer in terms of section 37 of the Act, relied upon a contract
in
any sense of the word, let alone for purposes of Rule 18(6)? In
fact, had there been approval by a court, the question
whether there
had been such an agreement would, for purposes of this action,
probably have become moot.
[14.]
In
my view the existence of an agreement as envisaged in section 37(1),
and of an approval thereof, would not even constitute facts
(
facta
probanda
)
which would have to be alleged to comply with the requirement of Rule
18(4) that
“
every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim, …,
with
sufficient particularity to enable the opposite party to reply
thereto”
.
The
existence of such an agreement and court approval would be evidence
(
facta
probantia
)
by means of which the plaintiff would, if the allegation of a
transfer in terms of section 37(1) is challenged, have to prove
such
a valid and enforceable transfer
[7]
.
[15.]
Mr
Van Niekerk relied heavily on the
dictum
in
Trope
v South African Reserve Bank
[8]
to the effect that the fact that an excipient is able to produce an
exception-proof plea will not always be decisive in determining
whether the excipient is prejudiced, and accordingly whether the
pleading is to be regarded as excipiable. The scenarios
referred to by the court in that matter are, however, clearly
distinguishable from the facts of the present matter. The
allegation of a transfer in terms of section 37(1) cannot
“
be
read in any number of ways”
,
it does not
“
(leave)
one guessing as to its actual meaning”
and
it is not inconsistent with any other allegation in the particulars
of claim
[9]
.
[16.]
A
denial of the allegation of a transfer would still leave a triable
case. The allegation of a transfer could leave no doubt
in the
mind of the excipients, when regard is had to the provisions of
section 37(1) of the Act, that, if the allegation is denied,
the
plaintiff would have to prove such an agreement and subsequent court
approval, and accordingly the allegation of a transfer
cannot lead to
an
“
inability
to foresee how the plaintiff will play his hand at the trial and what
must be done to meet it”
[10]
.
[17.]
In
fact, in
Jowell
v Bramwell-Jones and Others, supra
,
the opinion was expressed that even this approach would be going too
far, as regards what was required to be pleaded. It
was held
that a pleading which is
“
a
rather laconic document, somewhat reserved and uncommunicative,
setting forth merely the bare outline of the case, which is left
to
be developed in full flood at the trial”
is
exactly what Rule 18(4) intended and that,
“
when
the lack of particularity relates to mere detail, the remedy of the
defendant is to plead to the averment made and to obtain
the
particularity he requires”
by
means of discovery/inspection or of a
“
request
for particulars for trial of those particulars which are strictly
necessary to enable the defendant to prepare for trial”
[11]
.
[18.]
I
however express no opinion on whether the excipients would even in a
request for particulars in terms of Rule 21 be entitled to
particulars like those which they are now arguing should have been
pleaded.
[19.]
Whether
or not a court will in the exercise of its discretion uphold an
exception on the basis that a pleading is vague and embarrassing
will
depend on the facts of each particular case
[12]
.
[20.]
I
cannot see how the fact that particulars of the agreement of transfer
and of the required court approval have not been pleaded,
could
embarrass the excipients in pleading to the factual allegation of a
transfer in terms of section 37(1) of the Act, or in
their
preparation for the trial, and I cannot conceive of any defence they
may have to the plaintiff’s claim that may be
compromised by
this.
[21.]
In
my view this part of the exception therefore cannot be upheld.
[22.]
There
is even less merit in the exception and submission that the two
identical deeds of suretyship do not cover future debts and
that the
particulars of claim should on this basis be held to be vague and
embarrassing, and indeed excipiable.
[23.]
It
is trite that, for such an exception to succeed,
“
an
excipient has the duty to persuade the court that upon every
interpretation which the pleading, and in particular the document
upon which it is based, can reasonable bear”
the
pleading is excipiable
[13]
.
[24.]
It
is equally trite that
“
the
interpretation of … a contract, is not appropriate at the
exception stage unless the excipient can demonstrate that there
are
no possible meanings other than that contended for and that no
admissible evidence… can shed light on the true meaning”
[14]
.
Mr
Van Niekerk’s contention that this approach is only applied
where the object of such interpretation would be to establish
whether
the contract is void for vagueness, is clearly wrong
[15]
.
[25.]
Notwithstanding
the fact that neither of the two deeds of suretyship contains an
express term that only existing debts would be
covered, or that
future debts would be excluded, Mr Van Niekerk argued that this is
nevertheless the unambiguous and clear meaning
of their contents.
He referred to the fact that the language of the acknowledgement of
debt in the preamble to the deeds
are couched in the present tense,
and to the fact that, in clause 1 of the deeds, the excipients
acknowledged being familiar with
all the obligations of the debtor
(the first defendant) towards the creditor.
[26.]
There
is no indication in the particulars of claim and in its annexures
that there had, when the deeds of suretyship were executed
in July
1996, been any existing indebtedness. Evidence to the effect
that there had at that stage in fact been no existing
indebtedness
would obviously be a strong indication that the suretyships were
intended to cover future debts.
[27.]
In
this regard it is also interesting to note that, although the broker
agreement with the first defendant was only signed in 2011,
it was by
agreement deemed to have been effective from August 1996, in other
words from shortly after the deeds of suretyship were
signed.
The almost inescapable inference is that there must from August 1996
have been a similar contractual relationship
between the first
defendant and the plaintiff’s alleged predecessor in title, in
other words a relationship which could have
led to the first
defendant becoming indebted to the creditor.
[28.]
Mr
Van Niekerk could not explain why, if there had been an existing
indebtedness at the time of the execution of the deeds of suretyship,
and if the intention had been to cover only that debt, the amount of
that indebtedness had not simply been included in the deeds
of
suretyship.
[29.]
To
the contrary, clause 13.2 of the deeds provide for a certificate as
proof of the amount of indebtedness of the surety as at the
date of
that certificate.
[30.]
Mr
Steyn, counsel for the plaintiff (respondent), also pointed out that
in clause 16 of the two deeds the sureties assumed liability
for
damages claims, or other claims, which the creditor could obtain
against the debtor, obviously in the future.
[31.]
It
is precisely in circumstances like these that the court should not on
exception, and without the aid of evidence, decide upon
an
interpretation. Suffice it to say that, in my view, the deeds
are at the very least susceptible to an interpretation that
the
accessory liability of the sureties would cover future debts
[16]
.
[32.]
On
this basis too therefore the exception cannot be upheld.
[33.]
There
is no reason why costs should not follow the result. In fact,
Mr Van Niekerk conceded that, should it be found that
the particulars
of claim are not vague or embarrassing, the exception fell to be
dismissed with costs.
[34.]
The
following order is therefore made:
THE
EXCEPTION IS DISMISSED WITH COSTS
.
______________________
C
J OLIVIER
JUDGE
NORTHERN
CAPE DIVISION
For the First & Second
Defendants/ Excipients:
ADV JG VAN NIEKERK SC
Instructed
by:
Duncan & Rothman Inc.
For the Plaintiff /
Respondent:
ADV JF STEYN
Instructed
by:
Fletcher’s Attorneys
[1]
52 of 1998
[2]
2008 (4) SA 639 (C)
[3]
Compare
ABSA Bank
Ltd v Boksburg Transitional Council (Government of the Republic of
South Africa, Third Party)
1997 (2) SA
415
(W) at 418F – H;
Nasionale
Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing en
Andere
2001 (2) SA 790
(T) at 796G;
First Rand Bank Limited v Jooste
2015 JDR 0270 (GJ) paras [6] – [9]
[4]
The onus in this regard is on the excipient: see
Venter and Others NNO v Barritt Venter
and Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd
,
supra
,
para [17]
[5]
Ibid
, para [16];
First Rand Bank Limited v Jooste,
supra
, para [16]
[6]
Compare
Moosa and Others NNO v Hassam and
Others NNO
2010 (2) SA 410
(KZP) para
[18];
South African Railways and
Harbours v Deal Enterprises (Pty) Ltd
1975 (3) SA 944
(W) at 953A – B;
Vorster
v Herselman
1982 (4) SA 857
(O) at
860H – 861G;
ABSA Bank Ltd v
Zalvest Twenty (Pty) Ltd and Another
2014 (2) SA 119
(WCC) para [21];
Bantry
Head Investments (Pty) Ltd and Another v Murray and Stewart (Cape
Town) (Pty) Ltd
1974 (2) SA 386
(C) at
393H;
Mzeku v Volkswagen (SA) (Pty) Ltd
2008 JDR 0538 (E), p 8
[7]
Compare
South
African Railways and Harbours v Deal Enterprises (Pty) Ltd, supra
,
at 947 – 948;
Nasionale Aartappel
Koöperasie Bpk v Price Waterhouse Coopers Ing. en Andere,
supra
, at 797G – H and 798C –
D;
Inzinger v Hofmeyr
2010 JDR 1380 (GSJ) paras 15 and 16;
Jowell
v Bramwell-Jones
1998 (1) SA 836
(W)
at 902 - 903
[8]
1992 (3) SA 208 (T)
[9]
Trope v South African Reserve Bank, supra
,
at 211D - E
[10]
Levitan v Newhaven Holliday Enterprises CC
1991 (2) SA 297
(C) at 298H - I
[11]
Jowell v Bramwell-Jones and Others, supra
,
at 901C to 902D
[12]
Compare
ABSA Bank
Ltd v Boksburg Transitional Council (Government of the Republic of
South Africa, Third Party), supra
, at
422E;
South African Railways and
Harbours v Deal Enterprises (Pty) Ltd, supra
,
at 947D – E;
Bantry Head
Investments (Pty) Ltd and Another v Murray and Stewart (Cape Town)
(Pty) Ltd, supra
, at 398 - 399
[13]
Gallagher Group Ltd and Another v IO Tech
Manufacturing (Pty) Ltd and Others
2014
(2) SA 157
(GNP) para [20]; See also
Theunissen
en Andere v Transvaalse Lewendehawe Koöp Bpk
1988 (2) SA 493
(A) at 500E - F
[14]
Jowell v Bramwell-Jones and Others, supra
,
at 866I - J
[15]
Compare also
Sacks v
Venter
1954 (2) SA 427
(W) at 429D
[16]
Compare
Murray and
Roberts Construction Ltd v Finat Properties (Pty) Ltd
1991 (1) SA 508
(A)