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[2016] ZAGPPHC 767
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SA Taxi Development Finance (Pty) Ltd v Serapelo; In re: Serapelo v Bravopix 353 t/a Fikile Motors and Another (63339/2014) [2016] ZAGPPHC 767 (31 August 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
[GAUTENG
DIVISION, PRETORIA]
CASE
NUMBER: 63339/2014
DATE:
31 AUGUST 2016
In
the matter between:
SA
TAXI DEVELOPMENT FINANCE (PTY)
LTD
.......................................................
APPLICANT
And
SERAPELO,
MONYANE
MICHAEL
..........................................................................
RESPONDENT
In
re:
SERAPELO,
MONYANE
MICHAEL
...............................................................................
PLAINTIFF
And
BRAVOPIX
353 t/a FIKILE
MOTORS
.............................................................
FIRST
DEFENDANT
SA
TAXI DEVELOPMENT FINANCE (PTY)
LTD
....................................
SECOND
DEFENDANT
JUDGMENT
[1]
The Second Defendant excepted on grounds thereof that the
Plaintiffs particulars of claim are vague and embarrassing. I must
firstly
raise another issue. I am in the uncomfortable position that
I was the cause of lost time in that I delayed unduly delaying in
handing down judgment herein. I profoundly apologise to the parties
for the delay. I feel constrained to give an explanation for
at least
some of the unfortunate delay in giving judgment: during argument I
intimated to Mr Molentze who argued the matter on
behalf of the
Applicant (Second Defendant in the main dispute) that I am not
altogether persuaded that the exception ought to succeed.
I took time
to consider the issue again. My term as acting judge ended at the end
of the next week after the argument was heard.
Due to other
commitments this judgment was not finalised expeditiously.
[2]
The Plaintiff (Respondent) issued summons against the
Excipient (in the papers called Applicant) who is the Second
Defendant in
the action. For clarity purposes I will refer to the
Excipient/Applicant which is SA Taxi Development Finance (Pty) Ltd as
the
“Second Defendant” and to the Respondent as the
“Plaintiff’. The First Defendant did not take part in the
exception proceedings and will, insofar as it might be necessary to
refer to it, be referred to as the “First Defendant".
[3]
The Plaintiff instituted action against the First Defendant
which is a car dealership and against the Second Defendant which is a
registered credit provider in terms of the National Credit Act.
[4]
Of significance is the fact that in paragraph 3.3 of the
particulars of claim the Plaintiff alleges that the Second Defendant
is
joined “solely to this process to give it notice of this
action". At the hearing of the exception, only the Second
Defendant
appeared in the person of Adv Molentze. I was assured that
there was proper service of all the documents on the Plaintiff
against
whose particulars of claim the exception is directed. From
the court file it does not appear as if the First Defendant entered
any notice of appearance to defend.
[5]
The particulars of claim allege in paragraph 4 thereof that
the Plaintiff entered into a partly written and partly oral agreement
with the First Defendant. In paragraph 2.1 of the particulars of
claim the Plaintiff elected to refer to the First Defendant in
the
particulars of claim as “the Dealership”.
[6]
The Plaintiff then alleges that it entered into a partly
written and partly oral agreement with the Dealership for the
purchase
of a certain Toyota Quantum motor vehicle.
[7]
The Plaintiff then alleges that the oral terms of the
agreement inter alia were that the Plaintiff would pay the Dealership
(the
First Defendant) the purchase price by financing the said
purchase price through the Second Defendant. Further terms are
alleged
that are not relevant for present purposes.
[8]
The Plaintiff then alleges that it entered into a
hire-purchase agreement with the Second Defendant and he further
alleges that
he accordingly discharged his obligations to the
Dealership (the First Defendant) by making timeous payment of the
purchase price
and a copy of the hire- purchase agreement is attached
to the particulars of claim as Annexure “POCr.
[9]
The Plaintiff then alleges that the Dealership (First
Defendant) breached its obligations to the Plaintiff in certain
respects.
The Plaintiff then further alleges that the defective taxi
was returned by the Plaintiff to the Dealership and that the
Dealership
“under the auspices” of the Second Defendant
provided the Plaintiff with a replacement taxi.
[10]
However, in terms of the particulars of claim the replacement
taxi also did not comply with the alleged terms of the agreement
between
the Plaintiff and the Dealership resulting therein (as
alleged in paragraph 15 of the particulars of claim) that the
Plaintiff
suffered contractual damages as a result of the
Dealership’s breach of contract. The amounts of the damages are
stated in
paragraph 15 of the particulars of claim. The items of
damage are R252 470.00 being the amount that was paid to the
Dealership
as the purchase price. Secondly R211 837.75 being the
amount owed by the Plaintiff to the Second Defendant as interest in
terms
of the hire-purchase agreement. Thirdly R3 705.00 which amount
is in lieu of service fees owed to the Second Defendant in terms
of
the hire-purchase agreement and fourthly a sum of R587 315.43 being
lost profits suffered by the Plaintiff as a result of the
Dealership’s (i.e. the First Defendant’s) breach of
contract.
[11]
From paragraphs 16 to 21 a claim is formulated under the
Consumer Protection Act 68 of 2008
that throughout clearly refers
thereto that the Dealership breached the agreement between the
Plaintiff and the Dealership (the
First Defendant).
[12]
In particular in paragraph 18 it is alleged that the
Dealership (the First Defendant) refused and/or elected not to
properly discharge
its duties to the Plaintiff.
[13]
Then in paragraph 21 the Plaintiff alleges that “the
Defendant” failed, refused or neglected to pay the Plaintiff’s
contractual damages as framed in paragraph 15.
[14]
In paragraphs 22 to 29 a claim on the so-called aedilitian
actions for latent defects, alleging in the main part of paragraph 22
that “the Defendant” expressed (sic) the absence of
defects and/or implied the presence of qualities that were lacking
in
the taxi. The Plaintiff then further, in paragraphs 23, 24, 25, 26,
27 and 29 clearly refers to the Dealership (the First Defendant)
as
the party liable for the damages.
[15]
In paragraphs 30 to 36 a second aedilitian claim is
formulated. In these paragraphs there is a clear reference to the
Dealership
as being the party that breached the agreement.
[16]
In paragraph 37 it is then alleged that “the Defendant’s
breach” caused the Plaintiff to suffer the damages listed
in
paragraph 15. The introductory part of the prayers reads that the
Plaintiff prays for judgment against “the Defendant”
under the alternative claims A, B and C.
[17]
A notice in terms of
Rule 23(1)
was directed to the Plaintiff
by the Second Defendant to remove the alleged vagueness and
embarrassing nature of the particulars
of claim. The grounds for the
complaint are: “(1) In citing the second defendant in paragraph
3 of the particulars
of
claim, the plaintiff pleads inter alia, as follows:
‘
3.3
A registered credit provider in terms of the National Credit Act, and
is joined solely to this process to give it notice of
this action. ’
(2)
in the result, the plaintiff pleads that no relief is to be
sought against the second defendant in the action.
(3)
That pleading notwithstanding
,
the plaintiff refers in paragraphs 15 and 22 of its
particulars of claim and in the prayers to ‘the defendant’.
(4)
The second defendant does not know whether a reference to
1
the
Defendant’ as aforesaid is a reference to it or not
(5)
in the circumstances the second defendant is prejudiced and
embarrassed in pleading to the particulars of claim.”
[18]
Thereafter as a result of the failure of the Plaintiff to
react to the Rule 23(1) notice, the Second Defendant thereafter
excepted
against the Plaintiffs particulars of claim on the same
grounds as are quoted above. The exception prays that the exception
be
upheld with costs and that the Plaintiffs particulars of claim be
struck out
[19]
The question thus is whether the references to “the
Defendant” without clearly distinguishing between the First
Defendant
and the Second Defendant indeed causes prejudice and
embarrassment to the Second Defendant resulting therein that it
cannot plead
to the particulars of claim.
[20]
Mr Molentze on behalf of the Second Defendant argued that if
the exception should be dismissed, the Second Defendant would not
know
how to plead. He therefore requested that the exception be
upheld in the terms applied for in the exception and he also asked
for
the costs of the exception.
[21] In the
judgment of
Screening
& Earthworks (Ptv) Ltd and Another v
Capital
Outsourcing Group (Pty) Ltd
.
Capital
Outsourcing Group
(Ptv)
Ltd v Screening & Earthworks (Ptv) Ltd
[2008]
(1) All SA 611
(B) the test when a pleading is vague and
embarrassing as stated in Erasmus. Superior Court Practice (Service
27) B(1) - 152 is
quoted. I summarise the test as follows:
(a)
In each case the Court is obliged to first of all consider
whether the pleading does lack particularity to an extent amounting
to
vagueness. Where a statement is vague it is either meaningless or
capable of more than one meaning.
(b)
If there is vagueness in the sense stated, then the Court is
obliged to undertake a quantative analysis of such embarrassment as
the excipient can show it caused him or her by the vagueness
complained of.
(c)
In each case a ruling must be made whether the embarrassment
is so serious as to cause prejudice to the excipient if he or she is
compelled to plead to the pleading in the form as it stands.
(d)
The ultimate test is whether the excipient is prejudiced.
(e)
The onus is on the excipient to show both vagueness amounting
to embarrassment and embarrassment amounting to prejudice.
(f)
The excipient must make out his or her case for embarrassment
by reference to the pleadings alone.
[22]
In this instance the vagueness complained of is that the
pleading is capable of more than one meaning namely in paragraph 3.3
the
allegation is made that the Second Defendant is only cited for
purposes of notice. On the other hand in paragraphs 15, 22 and 37
there is a reference to “the Defendant” without as such
specifying whether these references are references to the First
Defendant, the Second Defendant or both of them. Therefore one has to
conclude that there is vagueness in the sense of a possibility
of
more than one meaning to possibly be ascribed to the term
“Defendant”.
[23]
The question then is whether the Second Defendant is
embarrassed to the extent that is suffers prejudice, the prejudice
being that
the Second Defendant would not be in a position to plead
to the particulars of claim.
[24]
The Second Defendant carries the onus of proof to persuade me
that it suffers prejudice to the extent that it cannot plead to the
particulars of claim.
[25]
In paragraph 3.3 it is clearly stated that the Second
Defendant is cited solely for purposes of giving notice of the action
to the
Second Defendant.
[26]
In paragraph 4 the allegation is made that the Plaintiff and
the Dealership (i.e. the First Defendant) entered into a partly
written
and partly oral agreement. Paragraph 5 then sets forth the
oral terms of the oral agreement between the Plaintiff and the First
Defendant. Throughout the particulars of claim the allegation is made
that the Dealership breached the terms of the agreement (i.e.
the
oral agreement between the Plaintiff and the First Defendant). In
paragraph 15 the allegations are summarised and again it
is clearly
stated that the Dealership (i.e. the First Defendant) is in breach of
the agreement with the Plaintiff.
[27]
In paragraph 15 the contractual damages suffered is calculated
again with specific reference thereto that the damages were suffered
as a result of the Dealership’s (i.e. the First Defendant’s)
breach of contract. In fact paragraphs 15.2 and 15.3 of
the
particulars of claim emphasises the fact that the First Defendant is
the target of the particulars of claim by referring thereto
that the
Plaintiff owes the Second Defendant interest in the sum of R211
837.75 and service fees of R3 705.00.
[28]
Similarly paragraphs 16 to 20 can only be read to say that the
Plaintiff directs its attack regarding the claim formulated in these
paragraphs to the Dealership (i.e. the First Defendant).
[29]
The allegation then in paragraph 21 that “the Defendant"
failed to pay the Plaintiff’s contractual damages as framed
in
paragraph 15 creates a vagueness in the sense that it does not
clearly distinguish between the First Defendant and the Second
Defendant. However, having regard to the full contents of the
particulars of claim and the clear formulation thereof as being
directed against the First Defendant, simply leaves no doubt that
“the Defendant” referred to can only be one party
and
that is the First Defendant.
[30]
Similarly paragraph 22 then again creates vagueness in that it
refers in the main part to “the Defendant”. Reading the
subparagraphs of paragraph 22 and paragraph 23, 24, 25, 26, 27 and 28
together with the main part of paragraph 22 it is clear that
the
reference to “the Defendant” in the main part of
paragraph 22 can only be a reference to the First Defendant and
can
never be a reference to the Second Defendant. Paragraphs 30 to 36
then clearly again refers to the First Defendant by reference
to the
term “the Dealership” and all these allegations are
clearly directed to the First Defendant and never to the
Second
Defendant.
[31]
Summing up then in paragraph 37 where it is alleged that the
Plaintiff as a result of “the Defendant’s breach has
suffered
damages as listed in paragraph 15” can again only be
interpreted in one way, namely that the allegation is made that the
First Defendant was the cause of the damages suffered by the
Plaintiff. It is simply not open to understand the reference to “the
Defendant" in paragraphs 21, 22 (the main part of paragraph 22),
37 and in the heading to the prayers as referring to any
other party
than the First Defendant.
[32]
In the circumstances I find that the Plaintiffs particulars of
claim is not vague and embarrassing to the extent that the Second
Defendant cannot plead to the particulars of claim. I find that on a
proper reading thereof the references to “the Defendant”
are clearly references to the First Defendant and never to the Second
Defendant. In the circumstances the exception must be dismissed.
[33]
Costs of the exception are prayed for in the exception itself
and Mr Molentze in argument confirmed that he seeks a costs order in
favour of the Second Defendant.
[34]
There was no appearance at the hearing on behalf of the
Plaintiff. He did not act on the Second Defendant’s notice in
terms
of Rule 23(1) or the exception itself. The Plaintiff also did
not attend the hearing and did not ask for costs against the Second
Defendant. Thus the Plaintiff left it to the Second Defendant to
persuade a court that the exception is sound and should succeed.
The
Second Defendant could not so persuade me. In the circumstances I
regard it as fair that no costs order be made.
[35]
I therefore order as follows:
1.
The Second Defendant’s exception is dismissed.
2.
No costs order is made.
AJ
LOUW AJ