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2016
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[2016] ZAGPPHC 888
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Emakhazeni Local Municipality v Mkansi NO (53902/15) [2016] ZAGPPHC 888 (23 September 2016)
IN
THE COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE:
53902/15
23/9/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
EMAKHAZENI
LOCAL
MUNICIPALITY PLAINTIFF
and
HLEKANI
DUDU MKANSI
N.O DEFENDANT
TLHAPI
J
[1]
The defendant excepted to the plaintiff's Particulars of Claim on
grounds that they do not disclose a cause of action. The application
was opposed. The exception was upheld with costs. An order was
granted on 2 August 2016 in favour of the defendant and the applicant
was ordered to amend the particulars of claim within fifteen days of
the order, in particular relating to issues raised in paragraphs
4
and 4.1.3 of the agreement. My reasons now follow.
[2]
The plaintiff and respondent entered into an agreement whereby the
defendant was deposit all proceeds collected by it on behalf
of the
plaintiff for the supply of prepaid electricity. All proceeds
collected were to be deposited into the bank account of the
plaintiff
on a daily basis, excluding Saturdays, Sundays and Public Holidays.
Between July 2013 and March 2015 the defendant collected
an amount of
R22 915 90.38. The plaintiff alleged that the defendant was in breach
of clause 4.1.3 of the agreement in that for
the same period only
deposited an amount of R16 353 018.64. The plaintiff sued for the
total balance in the amount R6 562 951.84.
[3]
The following were the grounds of exception in the Particulars of
Claim:
3.1.
that the plaintiff failed to indicated how the
amount of R22 915 970.38 is calculated, who in particular collected
the said amount
as it is an all-inclusive third party distribution
system;
3.2.
with regard to the amounts of R16 33 018.64 and R
6 562 91.84 the plaintiff failed to provide how the amounts are
calculated and
when the deposits were made;
3.3.
the plaintiff failed to provide the date and
content of the letter of demand.
[4]
I shall deal only with those submissions I consider to address the
issues raised. Counsel for the excipient submitted that since
the
agreement provided for two methods of 'revenue collection' that is,
through the debt collection centre and through prepaid
electricity
vending platform' it was important to indicate which cause of action
is being relied upon in the particulars of claim.
Counsel
for the plaintiff submitted that the exception was without merit and
that it was nothing more than the defendant wanting
the plaintiff to
plead evidence.
[5]
It is trite that the purpose of pleadings is to state with precision,
concisely and for the benefit of the Court and the litigants
all the
issues and or facts relied upon by them in order to establish a cause
of action. Furthermore pleadings should not state
evidence to be
relied upon by either of the parties in establishing a cause of
action or in defence of the action.
Where
the defendant alleges that a pleading lacks allegations to
substantiate a claim, such defendant may note an exception. The
Court
should consider the substance properly and will not uphold the
exception unless it is satisfied that the defendant would
suffer
prejudice 'in the conduct of his defence if the summons were to be
permitted to stand'; MN v AJ
2013 (3) SA 26
(WCC) paragraphs 19 - 25.
[6]
Clause 4.1.3 of the agreement reads:
"The service
provider must deposit all proceeds (less the commission and/or
service fees payable as per clause 13 of
this agreement) from third
party prepaid electricity on daily basis excluding Saturdays, Sundays
and public holidays into the following
Municipal bank account . ....
Clause
3.1.2
"All prepaid
revenue related
o
the
prepaid meters supplied, installed and project managed as per clause
13.1.2 will first go towards expunging the costs as per
Annexure A.
Once the costs are expunged all prepaid electricity revenue related
to theses prepaid meters will be passed onto the
Emakhazeni Local
Municipality.
The
preamble to the agreement indicates that revenue collection by the
defendant is subject to the above clauses. The particulars
of claim
should, having regard to the above clauses articulate and without
pleading evidence show how the outstanding amount of
R6 562 951.84 is
calculated. If one has regard to 13.1.2 above it suggests that even
though the plaintiff would have record of
how much revenue was
collected, the defendant may deduct payment for costs incurred in
respect of services and goods supplied as
provided in 4.1.1 and 4.1.3
of the agreement.
[7]
It was argued for the defendant that the plaintiff had failed to
indicate which aspect of the contract the amount claimed related
to
having regard to the two types of revenue collection and I agree with
this submission, hence the upholding of the exception.
_________________
TLHAPI VV
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON
:
02 AUGUST 2016
REASONS
RESERVED ON
:
02 AUGUST 2016
ATTORNEYS
FOR THE PLAINTIFF
:
NOMASWAZI SHABANGU ATT
ATTORNEYS
FOR THE DEFEDANT
:
UREESH DORASAMY ATT