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[2016] ZAGPPHC 41
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Uniontech Commercial and Graphics CC and Another v Logistics Transport Globally (Pty) Ltd, In Re: Logistics Transport Globally (Pty) Ltd v Uniontech Commercial and Graphics CC and Another (81325/14) [2016] ZAGPPHC 41 (29 January 2016)
REPUBLIC OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE NO: 81325/14
29/1/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between -
UNIONTECH
COMMERCIAL AND GRAPHICS CC
FIRST
EXCIPIENT
LEZMIN
2768
CC
SECOND
EXCIPIENT
and
LOGISTICS
TRANSPORT GLOBALLY (PTY)
LTD
RESPONDENT
In
re
LOGISTICS
TRANSPORT GLOBALLY (PTY)
LTD PLAINTIFF
and
UNIONTECH
COMMMERCIAL AND GRAPHICS CC
FIRST
DEFENDANT
LEZMIN
2768
CC SECOND
DEFENDANT
JUDGMENT
VILAKAZI,
AJ
[1]
The Defendants (Excipients) have excepted to the Plaintiff 's
(Respondent) particulars of claim in terms of Rule 23( 1) on the
grounds that the same are vague and embarrassing. For the sake of
convenience, I shall refer to the parties as Plaintiff and
Defendants.
It appears from an overview of the Particulars of Claim
as a whole that the Plaintiff avers that it provided certain services
to
the Defendants, allocated freight, bridging financing account
numbers, rendered freight and bridging finance to the Defendants.
The
First Defendant was allocated a freight account number UNICOMPRYl and
a bridging financing account number UNICOMPRY. The Second
Defendant
was allocated freight account number LEZ276PRY1 and bridging
financing account number LEZ267PRY.
[2]
The Particulars of Claim avers separate claims. These claims are
based on a partly written partly oral agreement, concluded
on or
about 20 March 2013 at Pretoria. The Plaintiff was represented by
Uhland Muller and the First Defendant was represented by
Ockert Smit.
On the aforesaid date at Pretoria, the Plaintiff, concluded a partly
written partly oral agreement (collectively hereinafter
"the
agreements"). Copies are annexed to the Particulars of Claim as
Annexure "A", "B", "C",
"D"
and "E". Pursuant to these collective agreements, the
Plaintiff commenced rendering freight forwarding
services and
bridging finance to the Defendants.
[3]
The Plaintiff further avers that on 20 August 2013 at Pretoria, the
terms of the agreement were amended in respect of the First
defendant. These amendments were partly written, partly oral and
increased the bridging finance interest from 43 to 5.53 per month
or
part thereof ("the amendments"), copies annexed as Annexure
"F" and "G" respectively. In respect
of the
Second Defendant it alleges that on 31 May 2013, it concluded partly
written and partly oral amendments, increasing the
bridging finance
interest from 43 to 5.53 per month or part thereof. Likewise it
annexed Annexure "F" and "G"
respectively to its
Particulars of Claim.
[4]
The exceptions raised are that the unsigned written agreement annexed
thereto does not constitute the agreement entered into
by the
parties. Further as regards the oral agreement the written agreement
attached thereto ("Annexure B") at clause
33 provides as
follows: "Variation of these trading term and condition. No
variation of these trading terms and condition
shall be binding on
the company unless embodied in a written document signed by a duly
authorised director of a company. Any purported
variation or
alteration of these trading terms and conditions otherwise than as
set out above shall be of no force and effect whether
such purported
variation or alteration is written or oral or takes place before or
after receipt of these standard trading terms
and conditions by the
customer." The Defendants aver that no written agreement was
attached, which the Plaintiff seeks to
amend its terms and
conditions. The Defendants allege that Annexure F which purports to
be a written portion of the new agreement
is not signed by both
parties instead, it is a letter dated 20 August 2013 addressed to
First Defendant and signed by Bertu Pienaar,
whose designation is a
Business Developer. The Defendants aver that the written portion of
new agreement cannot be considered valid
and binding between the
parties unless signed by a duly authorised director on behalf of the
plaintiff and the Defendant.
[5]
Annexure "A" annexed to the Particulars of Claim is an
email sent on 1 7 January 2013 (unsigned) by Bertu Pienaar,
addressed
to Chantelle. The import of this email is a request by the Plaintiff
of the Defendant's company registration documents,
historical
financial information and audited financials.
[6]
Annexure "B" is an application for credit facilities with
the Plaintiff, however. It refers to freight agreements
and the
interest rates payable. The Defendants allege that the aforesaid
Annexure does not indicate whether this credit facility
incorporate
bridging finances and the applicable terms and conditions. The
Defendants submit that the Particulars of Claim is vague
and
embarrassing and therefore they are unable to plead, thereby causing
prejudice.
[7]
Annexure "C" is a letter dated 20 March 2013 by the
Plaintiff addressed to the First Defendant which indicates that
its
freight account with the Plaintiff was approved with a credit
facility of R200, 000.00 terms are strictly 30 days from end
statement. Further its bridge finance account was approved with a
credit facility of R l 800,000.00 and the terms are strictly
a
maximum finance term of 90 days after payment date to supplier.
Annexure "E" is a letter by the Plaintiff addressed
on the
same date to Second Defendant which confirms approval of the freight
credit facility and the bridge finance credit facility
in the amount
of R200, 000.000 and R1 800,000.00 respectively.
[8]
Annexure "F" and "G" issued on 20 August 2013
signed by Bertu Pienaar on behalf of the Plaintiff addressed
to the
Defendants respectively in essence increases the interest rate
payable from 43 to 5.53 in respect of the bridge finance
account. The
Defendants aver that the aforesaid Annexures are invalid and wanting
in that they were not signed by the director
of the Plaintiff and the
Defendants.
[9]
At the commencement of the hearing Counsel for the Defendants
informed the court that the Defendants ore abandoning their
contention
that the agreement allegedly entered into between the
Plaintiff and Defendants are unlawful as they contravene Section 89
of National
Credit Act in that the Plaintiff was not registered as a
credit provider.
[10]
The Defendants contend that the Plaintiff 's letter dated 20 August
2013, is repugnant to the non-variation clause (clause
33) referred
to in Annexure "B" and "D" and "E"
attached to the Plaintiff 's Particulars of Claim
collectively
regarded as written portion of the agreement. It was submitted on
behalf of the Defendant's that the aforesaid clause
prescribes that
the variation must be in writing and signed by both parties.
[11]
Counsel for the Defendant in argument relied on the
Shalk v
Others and Pl/lay
2008 (3) SA 59(N)
judgment. In that case
the court said reference to a written contract by the parties intends
the document to be the very agreement
between the parties then that
document must be signed.
I
am of the view that reliance on Shalk's case is a case on point.
There is merit in this submission.
[12]
It was contended on behalf of the Plaintiff that it did not plead a
written contract. In its Particulars of Claim the Plaintiff
avers the
conclusion of the material terms and conditions concluded with the
Defendant's on 20 March 2013, as contained in the
Annexures, namely:
[13]
The Plaintiff in its particulars avers that the material terms and
conditions are as follows:
12.1.
The Plaintiff is to render freight forwarding
services to the Defendants respectively as set out in the terms and
conditions of
the respective credit applications.
12.2.
The Defendant 's freight account is payable 30
days from month end statement, falling which the Defendants agreed to
pay interest
on the overdue amount at the prime interest plus 23 per
month.
12.3.
The Plaintiff is to provide bridging finance to
the Defendants respectively.
12.4.
The plaintiff should provide bridging finance by
disbursing monies on behalf of the Defendants to the Defendant's
creditors in order
to enable the Defendants to import land and
release goods in South Africa.
12.5.
The Plaintiff is further to provide bridging
finance at an interest rate at 43 per month or a part thereof and the
goods forming
the subject matter thereof would be warehoused at the
Plaintiff Rosslyn warehouse and would only be released once payment
was made
to the plaintiff.
12.6.
All the costs and disbursement, including legal
costs on an attorney and client scale incurred by the Plaintiff in
exercising its
rights in terms of the agreements would be payable by
the Defendants to the Plaintiff on demand.
[14]
Counsel for the Plaintiff submits that the Plaintiff has every fact
in this regard which would be necessary to prove, if traversed
in
order to support its right to judgment of the court.
[15]
In deciding this matter, I rely in the case of
Trope v South
African Reserve Bank and Another
1992
(2) SA 208
T.
in
this case Mccreath J :
i.
Stated that the test is whether the pleading
complies with the general rule enunciated in Rule 18.4, i.e. every
pleading shall contain
a clear and concise statement of the material
facts upon which the pleader relies for his claim, defence or answer
to any pleading
as the case maybe, with sufficient particularity to
enable the opposite party to reply thereto.
ii.
An exception to a pleading on the ground that it
is vague and embarrassing involves a twofold consideration. The first
is whether
the pleading is vague. The second is whether the vagueness
causes embarrassment in the sense that the excipient is prejudiced.
iii.
As to whether there is prejudice, the learned
Judge adopted the remarks of Conradie J in
Levitan
v Newhaven Holiday Enterprises
1991
(2) SA 297
(CPD)
at 298 G-H that whether the
excipient can produce an exception, proof-plea is not the only test
nor the most important test. If
that were, then the object of
pleading which is to enable parties to come to trial prepared to meet
the other party's case and
not be taken by surprise would be
defeated.
iv.
If the pleading leaves one guessing as to its
actual meaning,
it
is vague and embarrassing.
[16]
As regard the contention by the Defendant that the amendments of the
agreement referred to in Annexure
"B"
and "D"
which are not signed and consequently do not constitute written
contract, Counsel for the Plaintiff concedes that
they are not
written contract and are not averred to in the Particulars of Claim.
It was submitted on behalf of the Plaintiff that
the contents of
Annnexures "B" and "D" are not entrenched in
writing and are capable of an oral variation.
[17]
This submission by counsel for the Plaintiff is without merit. The
terms of the so called "partly written and partly oral
amendments" of the two agreements ("the amendments")
pleaded by the Plaintiff conflict with clause 33. There
is
ample authority that where such conflict arises, the pleading can be
considered vague. It is evident from the Particulars of
Claim that
the Plaintiff seeks to rely on oral agreements whilst '
simultaneously referring to written portions. The question is:
Are
these stand-alone contracts separate from the written agreements? Is
the Plaintiff alleging oral agreements which have some
connection to
the written agreements?
[18]
It is my view that if the exceptions were not upheld, the Defendant
would be prejudiced.
[19]
, In the circumstances I make the following order:
a.
The exception is upheld.
b.
The Plaintiff is given 15 days to amend the
Particulars of Claim.
c.
The Plaintiff is ordered to pay the costs of the
exception
________________________________
T.D.
VILAKAZI
ACTING
JUDGE OF THE HIGH COURT
APPEARANCES:
FOR
PLAINTIFF: C J BRESLER
INSTRUCTED
BY: VAN ZYL LE ROUX IN
FOR
DEFENDANT: E JANSE VAN RENSBURG
INSTRUCTED
BY: KRUGER & OAKS ATTORNEYS
DATE
HEARD: 27 OCOTBER 2015