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[2016] ZAGPPHC 71
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Amalgamated Metal Recycling v Limpopo Scrap Metal CC (49343/2013) [2016] ZAGPPHC 71 (5 February 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION,PRETORIA
REPUBLIC
OF SOUTH AFRICA
CASE
NO: 49343/2013
5/2/2016
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
AMALGAMATED
METAL
RECYCLING: PLAINTIFF
And
LIMPOPO
SCRAP METAL
CC: DEFENDANT
(Reg.
No.20041093929/23
JUDGEMENT
SEMENYA
AJ:
1.
Plaintiff issued summons against defendant for payment of an amount
of R1618336.46 for cash/loan advances paid by plaintiff to
defendant
as a result of a partly oral and partly written agreement entered
into by the parties. The instant judgement is on an
exception raised
by defendant to plaintiff's particulars of claim. Defendant has
abandoned its claim in as far as interest is concerned.
I will
therefore give no ruling on this aspect.
2.
Defendant argued that plaintiff is obliged, in terms of Rule 18 (6),
to annex to his particulars of claim, a written contract
upon which
its claim is based. That by so doing, defendant would be in a
position to determine the terms relied upon by plaintiff.
It was
further argued that failure to annex the said written agreement to
the particular of claim renders same to fail to disclose
the cause of
action, alternatively vague and embarrassing.
3.
In paragraph 5A of its amended particulars of claim, plaintiff
alleges that portion of the written agreement included, inter
alia, a
detailed ledger which was to be compiled by it, various
purchase/credit notes referred to in such ledger, defendant's
corresponding invoices, various bridge slips together with
corresponding inventory of goods supplied and the
ad hoc
confirmation of defendant's indebtedness. It is necessary to
mention that, that portion of the written contract was not annexed to
the particulars of claim.
4.
Notwithstanding the initial averment that the necessary documents
required to support its claim are voluminous and cannot be
annexed to
particulars of claim, plaintiff discovered same before respondent
raised the instant exception. It is on this basis,
among others, that
plaintiff argues that the exception is without merits. It was
contended on behalf of plaintiff that the material
portion on which
it relies have been sufficiently stated in paragraph 5 of the
particulars of claim so as to enable defendant to
plea.
5.
Defendant contended that the documents annexed/discovered by
plaintiff,
to wit,
the ledger comprises of what happened after
the contract on which the claim is based was concluded. It was
further argued that the
Rules as they provide, make it compulsory for
plaintiff to annex a true copy of the written contract.
6.
Rule 18(6) of The Uniform Rules of Court provides as follows:
"A
party who in his pleading relies upon a contract shall state whether
the contract is written or oral and, 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."
7.
In support of its contention, plaintiff referred the court to the
decision in
South African Railways and Harbours v Deal Enterprises
(PTY) LTD
1975
(3)
SA 944
(W)
as authority for the
submission that the furnishing of a written contract would not always
be regarded as strictly necessary for
the purposes of enabling the
defendant to plead or to tender.
8.
The argument that the documents annexed by the plaintiff cannot be
regarded as a true copy of the written contract entered into
by the
parties or a portion relied upon by plaintiff is valid. They can at
the least, amount to evidence of whatever happened pursuant
to the
contract, if any, entered into by the parties. What defendant is
entitled to is a true copy of a written contract on which
the
plaintiff s claim is based as provided in Rule 18(6).
9.
I am in agreement with the reasoning of
Traverso DJP in Absa Bank
Ltd v Zalvest Twenty (Pty) Ltd2014 (2) SA 119 (WCC)
that Rule
18(6) is formulated on the assumption that a party is able to annex a
true copy of a contract and that it was not intended
to preclude a
party to a written contract from enforcing his rights in terms
thereof if he is, for valid reasons, unable to annex
it.
10.
However, the other documents referred to in paragraph 5A of the
plaintiffs particulars of claim were, in the same way as the
ledger,
created after the alleged contract was concluded. They therefore
could not, as argued by defendant, be part of the written
contract.
Plaintiff does not furnish any reasons why it is unable to annex a
true copy of the written contract. It does not appear
from the
particulars of claim that it is not in possession of the said
contract or that it is impossible for it to annex it. It
appears that
it is not the contract itself that is too voluminous to be annexed.
It is the ledger, purchase/credit notes, defendant's
corresponding
invoices of goods supplied (paragraph 5A.1-5) that are. The defendant
is entitled to see if what is alleged in paragraph
5A is indeed part
of the written contract.
11.
Plaintiff argued, based on the decision in
Nxumalo v First Link
Insurance Brokers (PTY) LTD 2003 (2) SA (620),
that defendant
bears the
onus
of proving both vagueness amounting to
embarrassment and embarrassment amounting to prejudice. He further
argued that in the instant
matter defendant does not allege that he
will suffer prejudice if he were to plea on the particulars of
plaintiff's claim as they
now stand. I agree that what defendant did
was to make a bold submission to the effect that plaintiff is obliged
to annex the contract
without showing that its failure to do so
causes embarrassment amounting to prejudice. It is on this basis that
I am unable to
find any prejudice on the part of defendant.
12.
Moseneke J, as he then was, in
Nxumalo (supra),
stated
that in such cases, defendant can make use of a number of other
provisions at its disposal for example Rule 35 to require
the written
contract on which the claim is based. In my view the same sentiment
find application in this instant case. The defendant
may make use of
the provisions referred to in Nxumalo to compel the plaintiff to
annex a true copy of the written contract to its
particulars of
claim.
13.
I conclude that defendant failed to prove that plaintiff particulars
of claim are vague and embarrassing and that he suffered
prejudice as
a result.
14.
In the circumstances the following order is made:
1.
The exception is dismissed with costs.
_____________________________
M
V SEMENYA
ACTING
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
FOR
PLAINTIFF:
ADVOCATE JC VILJOEN
INSTRUCTED
BY: LIEZENBERG MALAN
LIEZEL
HORN INC
407
ATTERBURG ROAD
MENLO
PARK
PRETORIA
FOR
DEFENDANT: ADVOCATE _____________
INSTRUCTED
BY: BOSMAN ATTORNEYS
37
VOORTREKKER STREET
POLOKWANE