About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1066
|
|
Moodley and Another v Absa Bank Limited (44543/2015) [2016] ZAGPPHC 1066 (15 December 2016)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG HIGH COURT
DIVISION, PRETORIA
Case
No.:44543/2015
15/12/2016
Reportable:
No
Of
interest to other judges: No
Revised.
In
the matter between:
JAISHREE
MOODLEY ID NO.
[…]
1
st
Plaintiff/Respondent
SAREN
MOODLEY
ID NO.
[…]
2
nd
Plaintiff/Respondent
and
ABSA
BANK LIMITED
REGISTRATION
NUMBER:
1986/004794/06
Defendant/Excipient
JUDGMENT
MNGQIBISA-THUSI
J
[1]
The plaintiff has instituted a claim for damages against the
defendant in the amount of R682 918.78. In its particulars of claim
the plaintiff alleges the following. On 18 June 2012 the plaintiff
and the defendant concluded a written agreement of sale of property
in terms of which the defendant undertook to sell to the plaintiff an
immovable property situated at […] V., […]
F. Road in
the amount of R550 000.00 subject to conditions set out. Pursuant to
the agreement the plaintiff paid a deposit of R140
000.00 towards the
purchase of the immovable property. The plaintiff annexes to its
particulars of claim a document titled "Sale
of Property
Agreement (Repossessed Immovable Property) as annexure 'A'.
[2]
Despite the plaintiff's having paid a deposit and being willing to
pay the balance of the purchase price, the defendant has
failed to
give transfer of the immovable property to the plaintiffs.
[3]
It is the plaintiff's contention that the defendant represented to
them that it is able and willing to transfer the property
to them.
Further, that as a result of the representation made by the defendant
the plaintiff's acted to their detriment.
[4]
On the 19 August 2015 the defendant filed a notice in terms of Rule
23(1)
[1]
, in which the defendant
gave notice of its intention to except to the plaintiff's particulars
of claim.
[5]
The defendant is excepting to the plaintiff's particulars of claim as
they stand. Furthermore the defendant is excepting to
the particulars
of claim on the grounds that the particulars of claim do not comply
with Uniform Rules 18(4) as read with the Uniform
Rule 18(12).
[6]
The excipient is the defendant in the main action and the respondent
is the plaintiff in the main action. I will refer to the
parties as
in the main action.
[7]
The defendant is excepting to the plaintiff's particulars of claim as
amended on the grounds that the particulars of claim are
vague and
embarrassing and/or do not disclose a cause of action nor do they
contain the necessary averments to sustain the plaintiff's
claim.
[8]
The defendant's notice of exception reads as follows:
"KINDLY TAKE
NOTICE FURTHER
that the grounds of exception the following:
1. First ground of
exception
1.1 The agreement
attached to the plaintiff's particulars of claim and marked as
annexure
A,
is labelled, and as per page 2 thereof, as "Sale
of Property Agreement (Repossessed immovable property)".
1.2 clause 3.1.2 of the
agreement, being annexure
A
of the plaintiff's particulars of
claim, contains the following suspensive condition:
"if we bought the
property at a sale in execution following a judgement we took against
the previous registered owner of the
property, that we have taken
transfer [of] the property before the signature date, alternatively,
are able to register the transfer
of the property from the sheriff of
the court to us and from us to you, at the same time and within a
reasonable time from the
signature date. If this is not possible for
whatever reason, you acknowledge that it is a prerequisite for us to
be able to transfer
the property to you in terms of this agreement,
that the property is first transferred successfully to us from the
sheriff of the
court; and”
1.3 Having regard to
clause 3.1.2 of the agreement, the plaintiff's fail to allege in
their particulars of claim that:
(a) The defendant did not
buy the property at a sale in execution following a judgement taken
against the previous owner and, as
a consequence of which, the
suspensive condition in clause 3.1.2 does not find application;
alternatively
(b) the suspensive
condition contained in clause 3.1.2 has been fulfilled or waived (as
the case may be),
and, as such, the
plaintiffs do not plead that the agreement was of force and effect
and/or regulated the parties' relationship
and obligations.
1.4 In addition to, but
without derogating from the above and even if the agreement is of no
force and effect (and such was the
pleaded premise of the plaintiffs'
cause of action), then in such event:
(a) clauses 3.2.2
and 3.2.3 specify, inter alia, that the parties shall be entitled to
be restored as near as possible to
the positions in which they would
have been had the agreement not been entered into and that save for
such no party would have
any claim against another in terms of the
agreement; and
(b) the plaintiffs
do not pursue claims against the
defendant as contemplated
in terms of clauses 3.2.2
and 3.2.3.
1.5 In the result, the
plaintiffs' particulars of claim are bad in law, exciepiable and/or
vague and embarrassing and/or lack the
averments necessary to sustain
a cause of action and the defendant is unable to plead and/or reply
thereto and the defendant is
accordingly prejudiced thereby.
2. Second ground of
exception
2.1.
In paragraph 4 of the
particulars of claim, the plaintiffs' alleges that the defendant made
certain representations 'by word and
deed' to the effect that the
defendant was able and willing to transfer the property into the name
of the plaintiffs alternatively
would be in a position to do so.
2.2. In paragraph 9 of
the particulars of claim, the plaintiffs allege that the
representation was material and was, to the knowledge
of the
defendant, false alternatively was both wrongfully and negligently
made.
2.3. The allegations made
in paragraph 4 and 9 of the plaintiffs' particulars of claim are
inconsistent with:
(a)
the agreement (annexure A to the plaintiffs particulars of claim)
being an agreement pertaining to the sale by the defendants
of a
'repossessed property'; and
(b)
the express terms of the suspensive condition contained in clause
3.1.2 of the agreement.
2.4. In the result, the
plaintiffs' particulars of claim are exciepiable and/or vague and
embarrassing and/or lack the averments
necessary to sustain a cause
of action and the defendant is unable to plead and/or reply thereto
and the defendant is accordingly
prejudiced thereby.
3. Third ground of
exception
3.1 In paragraph 4 of the
particulars of claim, the plaintiffs allege that the defendant made
certain representations 'by word and
deed' to the effect that the
defendant was able and willing to transfer the property into the name
of the plaintiffs alternatively
would be in a position to do so.
3.2 In paragraph 9 of the
particulars of claim, the plaintiffs allege that the representation
was material and was, to the knowledge
of the defendant, false
alternatively was both wrongfully and negligently made.
3.3 Clause 20 of the
agreement provides:
"20
Whole
agreement
This
agreement is the only record of agreement between the parties in
regard to the subject matter of this agreement. I'm a court
hold
otherwise, no party is legally obliged to comply with any term,
condition, or how by the parties before this agreement was
signed."
3.4 As a
consequence of clause 20 as aforesaid, and best for the plaintiffs
and unless and until a court holds otherwise,
any representations of
the kind alleged by the plaintiffs fall beyond the ambit of the
agreement.
3.5 The plaintiffs
do not seek, in their action and/or their particulars of claim, the
appropriate declaratory relief required
for the court 'hold
otherwise'
3.6 In the result,
the plaintiffs' particulars of claim are excipiable and/or vague and
embarrassing and/or lack the averments
necessary to sustain a case of
action and the defendant is unable to plead and/or thereto and the
defendant is accordingly prejudiced
thereby.
4. Fourth ground of
exception
4.1 In paragraph 4 of the
particulars of claim, the plaintiffs allege certain representations
'by word and deed 'by the defendant
to the effect that the defendant
was able and willing to transfer the property into the name of the
plaintiffs alternatively would
be in a position to do so.
4.2 In respect of the
plaintiffs' use of the term 'by word ':
(a)
The plaintiffs' use of the term 'by word' is vague, ill-defined and
too broadly stated and the defendant is embarrassed
thereby.
(b)
The plaintiffs do not allege in their particulars of claim whether
the reference to 'by word' is a reference and/or allegation
pertaining to the written or spoken word. If it is a reference to a
written word, the plaintiffs have failed to attach a copy or
copies
of the alleged written word.
(c)
The plaintiffs do not allege in their particulars of claim who on
behalf of the defendant made the representation by word
and when
specifically the representation 'by word' was made.
4.3 In respect of the
plaintiffs use of the term 'by deed';
(a)
The plaintiffs' use of the term 'by deed' is vague, ill-defined and
too broadly stated.
(b)
The plaintiffs do not allege in their particulars of claim the
specific type, nature and content of the 'deed'
(c)
The plaintiffs furthermore do not allege in their particulars of
claim who on behalf of the defendant made the representation
'by
deed' and when specifically the representation 'by deed' was made.
4.4 For each of the
reasons listed above, the plaintiffs' particulars of claim also do
not comply with the provisions of Uniform
Rule 18 (4).
4.5 In the result, the
plaintiffs' particulars of claim are vague and embarrassing and/or
lack the averments necessary to sustain
a cause of action and/or fail
to comply with the provisions of Uniform Rule 18 and the defendant is
unable to plead and/or reply
thereto and the defendant is accordingly
prejudiced thereby.
5. Fifth ground of
exception
5.1 In paragraph 10 of
the particulars of claim, the plaintiffs allege that they suffered
damages and the plaintiffs then proceed,
in paragraph 10.1 to 10.5 of
the particulars of claim, so allege the 'nature' amount of such
(constituent) damages.
5.2 The plaintiffs'
particulars of claim are however vague and embarrassing,
alternatively fail to contain the necessary averments
to disclose a
cause of action; further alternatively fail to set out the damages in
such a manner as will enable the defendant
to reasonably assess the
quantum, in the following circumstances:
(a) in respect of
paragraph 10.1 of the plaintiffs' particulars of claim, the
plaintiffs do not set out how the arrive at
or calculate the claim
for lost profit and whether or not such claim for damages is a claim
for net or gross profit;
(b) in respect of
paragraph 10.2 of the plaintiffs' particulars of claim, the
plaintiffs do not allege when they made,
and what, the
'alternative purchase' entails and whether they made a profit in
respect of this 'purchase' and/or what the interplay
or relationship
is, if any, between this purchase and the claim for 'loss of profit'
sought in paragraph 10.1 of the particulars
of claim;
(c) in respect of
paragraph 10.3of the plaintiffs' particulars of claim and in addition
to that sated in subparagraph (a)
above, the plaintiffs do not
specify what the 'wasted' expenditure entails and/or how the amount
is calculated and/or the constituent
components of this amount;
(d) in respect of
paragraph 10.4 the plaintiffs' particulars of claim, the plaintiffs
do not specify what the specific nature
is of the 'unnecessary legal
costs', why the legal costs are alleged to be unnecessary and/or how
this amount is calculated and/or
the constituent components of this
amount; and
(e) In respect to
paragraph 10.5 of the plaintiffs' particulars of the claim, the
plaintiffs do not allege how the interest
is calculated, the relevant
dates for the purposes of such interest calculation and the
applicable interest rate used by the plaintiffs.
5.3
For the
reasons listed above, the plaintiffs' particulars of claim also do
not comply with Uniform Rule 18(4)
[2]
and (10).
5.4 In the result, the
plaintiffs' particulars of claim are bad in law, excipiable and/or
vague and embarrassing and/or lack the
averments necessary to sustain
a cause of action and/or fail to comply with the provisions of
Uniform Rule 18 and the defendant
is unable to plead and/or reply
thereto and the defendant is accordingly prejudiced thereby.
6. Sixth ground of
exception
6.1. In paragraph 1.3 of
the plaintiffs' particulars of claim, the plaintiffs allege that
their chosen
domicilium citandi et executandi
is '[…]
B. Street, Erasmia'.
6.2. In the annexure A to
the plaintiffs' particulars of claim (being the only agreement
attached to the particulars of claim),
the plaintiffs' alleged chosen
address (being
domicilium citandi et executandi)
is stated to
be: '[…] Building, Cnr V./P., Pretoria Central, Pretoria' (see
clause 1.1.2.7 as read with clause 26.1).
6.3. In the result, the
plaintiffs' chosen
domicilium citandi et executandi,
as
alleged in paragraph 1.3, is an address different to that provided
for as the chosen
domicilium citandi et executandi
in terms of
the annexure A to the particulars of claim.
6.4. The defendant is
embarrassed in that the defendant is unable to determine what the
origin is of the
domicilium citandi et executandi
as per
paragraph 1.3of the plaintiffs' particulars of claim and/or whether
or not the plaintiffs proceed against the defendant in
respect of an
agreement separate to or distinct from annexure A to the plaintiffs'
particulars of claim (and regard also being
had, inter alia, to
paragraph 4 above).
6.5. In amplification of
the above, the plaintiffs' particulars of claim are vague and
embarrassing and the defendant is unable
to plead and/or reply
thereto and the defendant is accordingly prejudiced thereby".
[10]
It is trite that an exception to a pleading on the basis that it is
vague and embarrassing will not be upheld unless failure
to do so may
prejudice the excipient. Furthermore, the court must look at the
pleading excepted to as it stands and cannot take
into account any
facts outside those stated in the pleading except those stated in the
pleading and cannot refer to any other document.
Erasmus Superior
Court Practice
at 81-151). In order to succeed, an excipient has
to convince the court that upon every interpretation which the
pleading in question
can reasonably bear no cause of action or
defence is disclosed. Furthermore, an exception on the basis that the
particulars of
claim do not disclose any cause of action is designed
to obtain a determination of a point of law which will dispose of the
case
either in whole or in part, thereby avoiding the leading of
unnecessary evidence at a trial.
Alphina Investments Ltd v Blacher
2008
(5) SA 479
(C) at 4838.
[11]
In
Trope
v South African Reserve Bank and Another
[3]
,
the court stated that:
"An exception to a
pleading on the ground that it is vague and embarrassing involves a
two-fold consideration. The first is
whether the pleading lacks
particularity to the extent that it is vague. The second is whether
the vagueness causes embarrassment
of such a nature that the
excipient is prejudiced
(Quinlan
v
MacGregor
1960 (4)
SA 383
(D) at 393E-H). As to whether there is prejudice, the ability
of the excipient to produce an exception-proof plea is not the only,
nor indeed the most important, test - see the remarks of Conradie J
in
Levitan v Newhaven Holiday Enterprises
CC
1991 (2) SA 297
(C) at 298G-H. If that were the only test, the object of pleadings to
enable parties to come to trial prepared to meet each other's
case
and not be taken by surprise may well be defeated."
[12]
Furthermore, in
Jowell
v Bramwell-Jones and Others
[4]
the
court stated that:
"Minor blemishes are
irrelevant: pleadings must be read as a whole; no paragraph can be
read in isolation ..
A distinction must be
drawn between facta probanda or primary factual allegations which
every plaintiff must make, and the facta
probantia, which are
secondary allegations upon which the plaintiff will rely in support
of his primary factual allegations. Generally
speaking, he latter
matters for particulars for trial and even then are limited. For the
rest, they are matters of evidence.
Only facts need be
pleaded; conclusions of law need not be pleaded".
[13]
The defendant's first ground of objection is that since the agreement
contains a suspensive clause (3.1.2), the common intention
of the
parties is clear from the language in the agreement, namely, that the
validity of the agreement is dependent on the fulfilment
of the
condition being that when the property is bought by the defendant as
a result of a sale in execution, transfer of the property
to the
plaintiffs is subject to the execution seller (i.e the sheriff')
transferring the immovable property to the defendant. It
is the
defendant's contention that failure by the plaintiffs to allege that
the suspensive condition has been fulfilled renders
the particulars
of claim excipiable in that it lacks averments necessary to sustain a
cause of action. In terms of
In
McKenzie v Farmers'
Co
operative
Meat Industries Ltd
[5]
the
phrase 'cause of action' means "...every fact which it
would be necessary for the plaintiff to prove, if traversed,
in order
to support his right to judgment of the court. It does not compromise
every piece of evidence which is necessary to prove
each fact, but
every fact which is necessary to be proved".
[14]
Rule 18(4) of the Uniform Rules of Court provides that:
"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 may be, with sufficient particularity to enable
the opposite party to rely thereto".
[15]
The plaintiffs' cause of action is the sale agreement. Therefore it
is necessary for the plaintiffs to have a cause of action
that they
should allege the existence of that contract. Since the contract on
which the plaintiffs rely contains a suspensive condition
(clause
3.2.1), I am of the view that the failure by the plaintiffs to allege
the fulfilment of the suspensive condition render
the particulars of
claim excipiable on the ground that it lacks the necessary averments
to sustain a cause of action. Furthermore,
the particulars of claim
are not in compliance with Rule 18(4) in that they do not leading
does not contain material facts on which
their claim is based.
[16]
Similarly with regard to the plaintiffs allegation that the defendant
had 'by word' or 'deed' made material representations
to it, which
representations were 'false, wrongfully and negligently made, the
plaintiffs fail to allege that an enforceable agreement
is
enforceable by alleging that the suspensive condition contained in
the agreement was fulfilled. Consequently the defendant's
ground
excepting to the plaintiff's particulars of claim is upheld.
[17]
With regard to the defendant's third and fourth grounds of excepting
to the particulars of claim, the defendant makes reference
to clause
20 of the agreement which reads as follows:
"20
Whole
agreement
This agreement is the
only record of agreement between the parties in regard to the subject
matter of this agreement. Unless a court
holds otherwise, no party is
legally obliged to comply with any term, condition, or held by the
parties before this agreement was
signed".
[18]
In terms of clause 20, the parties agreed that the written agreement
will be the only memorial of their agreement. The plaintiffs
do not
allege any fact to indicate that there is a court order which
rectified, varied or amended this clause in order to incorporate
what
they are alleging into the contract. In The defendant's objection on
this ground is justifiable since it would be difficult
for it to
plead to this allegation as it stands. In
Du
Plessis v Nel
[6]
it was
held that if a written contract contains a nonvariation clause,
a party to that contract cannot rely on an agreement
extraneous to
the written contract.
[19]
With regard to the defendant's fourth ground of exception, the
plaintiffs have alleged that the defendant had made misrepresentation
to them that it is in a position to transfer the property to them.
However, the plaintiff do not who made the representation,
when and
where.
[20]
In its fifth ground on which it basis its exception, the defendant
contends that the plaintiffs have not provided it with sufficient
facts in order for it to determine whether it should be held liable
for the costs and expenses incurred by the plaintiffs. There
is no
allegation as to the circumstances under which the legal costs and
expenses were incurred.
[21]
I am of the view that the defendant's last ground of objection has no
merit. The fact that the plaintiffs' domicile address
is now a
different from that contained in the agreement is not material. It is
up to the plaintiffs to choose whatever domicilium
address they
choose. I am satisfied that pleading a different domicilium address
would cause the defendant embarrassment and this
ground of exception
is refused.
[22]
Viewing the plaintiffs' particulars of claim as a whole, I am of the
view that the particulars are vague and embarrassing and/or
lack
averments necessary to sustain a cause of action in that the
plaintiffs have failed to plead material facts in support of
their
claim.
(f)
Accordingly the following order is made:
1. The defendant's
application in terms of Rule 23(1) is upheld.
2. The plaintiffs are
afforded 15 days to amend their particulars of claim.
3. The plaintiffs,
jointly and severally, are to pay the defendant's costs of the
exception.
__________________________
NP
MNGQIBISA-THUSI
Judge
of the Gauteng High Court
Appearances:
For
Excipient/Defendant: Adv L Grabler instructed by
Lowndes Dlamini Attorneys
For the
Respondent/Plaintiff: Adv BP Geach SC instructed by Tyroni Pather Inc
[1]
In terms of Rule 23(1) a litigant may raise an exception against an
opponent's pleading on the basis that the pleading does not
disclose
either a cause of action or a defence. This means that the court
must look at the pleading excepted to as it stands
and cannot take
into account any facts outside those stated in the pleading except
those stated in the pleading and cannot refer
to any other
document. Erasmus Superior Court Practice at 81-151).
[2]
Rule 18(4) of the Uniform Rules of Court provides that: "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 may be, with sufficient
particularity
to enable the opposite party to rely thereto".
[3]
1992 (3) SA 208
(T) at 211.
[4]
1998 (1) SA 836
at 902J-903B.
[5]
1922 AD 16
at 23.
[6]
1952 (1) SA 513
(A).