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[2015] ZAGPPHC 164
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Tolerable Trading (Pty) Ltd v Ribca Trading (Pty) Ltd (14666/2011) [2015] ZAGPPHC 164 (17 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE NO:
14666/2011
DATE: 17 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between:
TOLERABLE
TRADING (PTY)
LTD
................................................................
Plaintiff/Excipient
and
RIBCA TRADING
(PTY)
LTD
...................................................................
Defendant/Respondent
JUDGMENT
DAVIS, AJ
[1]
In this matter the Plaintiff takes exception against the Defendant’s
plea on the basis that it is both vague and embarrassing,
alternatively
does
not disclose a defence. For ease of reference I shall refer to the
parties hereinlater as Plaintiff and Defendant respectively.
PLAINTIFF’S
DECLARATION
.
[2] The portions of
the Plaintiff’s declaration relevant to the exception are the
following:
2.1 In paragraph 4
thereof the Plaintiff pleaded that it and the Defendant had entered
into a written agreement with each other,
a copy of which is annexed
to the declaration as Annexure “1” thereto.
2.2 The material
terms of the agreement was pleaded as constituting an undertaking by
the Plaintiff to install services described
in the agreement in the
township development known as Bethal X25 and X26. The Plaintiff would
be remunerated for the work at the
rates set out in the schedule of
quantities contained in the agreement and the scope of work would be
determined by the Defendant
from time to time.
2.3 The value of the
work awarded to the Plaintiff in terms of the agreement was in excess
of R4 million, VAT and contingencies
excluded.
2.4 In paragraph 5
of the declaration it was pleaded that, in order to obtain payment,
the Plaintiff would submit payment certificates
to the Defendant’s
agent, Siyandiza Consulting Engineers (Pty) Ltd and the amount
appearing in each payment certificate would
be paid by the Defendant,
less early settlement discounts and retention amounts, within 30 days
after having been certified by
the engineer as correct.
2.5 In paragraph 6
the Plaintiff pleaded that it had completed the work awarded to it by
the Defendant in terms of the agreement
during the period 1 July 2007
to 31 December 2008.
2.6 In paragraph 7
the Plaintiff pleaded that it had submitted six payment certificates
to the aforementioned engineer and annexes
copies of the certified
certificates to the declaration.
2.7 In paragraph 8
it is pleaded that the Defendant had made payments of the
aforementioned six payment certificates dated 27 July
2007, 25 August
2007, 27 October 2007, 26 November 2007, 12 December 2007 and 22 May
2008 respectively in a total amount of R3
622 924,69.
2.8 In paragraphs 9
and 10 the Plaintiff pleaded that it had submitted payment
certificates 7 and 8 in the amounts of R455 061,79
and R405 938,54
respectively, both of which had also been certified by the engineer
as correct.
2.9 In paragraph 11
the Plaintiff pleaded that the Defendant has retained an amount of
R340 940,93 as retention amounts in terms
of the agreement which
amount is due and payable to the Plaintiff.
2.10 Paragraph 12
deals with a separate small oral agreement regarding paving in the
amount of some R24 000,00, which claim plays
an inconsequential role
in the scope of things as well as the present exception.
DEFENDANT’S
PLEA
:
[3] The portions of
the Defendant’s plea which form the principal subject matter of
the exception are the following:
3.1 There is firstly
a blanket denial of paragraph 4 of the Plaintiff’s declaration.
3.2 In amplification
of the blanket denial the Defendant pleaded as follows:
“
4.2
... the Defendant pleads that no written agreement
was
entered into by
and between the Plaintiff and the Defendant, as alleged by the
Plaintiff, or otherwise.
4.3 Annexure ‘1’
attached to the Plaintiff’s declaration is not a written
agreement entered into by and between
the parties, as pleaded by the
Plaintiff.”
3.3 The contents of
paragraph 5 of the declaration are similarly denied and the contents
of paragraphs 4.2 and 4.3 of the plea were
repeated in respect
thereof.
3.4 Although the
performance of the work pleaded in paragraph 6 of the declaration is
denied, the plea to paragraph 7 reads as follows:
“
7.1
The contents thereof are denied.
7.2 In the
alternative and in the event of it being found that the Plaintiff did
submit ‘payment certificates to the engineer"
then and in
that event the Defendant pleads that same did not occur in terms of a
written agreement as alleged by the Plaintiff
in its declaration.”
3.5 The admission of
payment pleaded in response to paragraph 8 of the Plaintiff’s
declaration reads as follows:
“
8
.1
The Defendant pleads that it did make certain payments to the
Plaintiff, as pleaded in the Plaintiff’s declaration in the
total amount of R3 622 924,69 (Three Million Six Hundred and Twenty
Two Thousand Nine Hundred and Twenty Four Rand and Sixty Nine
Cents).
8.2 The Defendant
pleads that these payments did not occur as a consequence of any
written agreement entered into by and between
the parties as pleaded
by the Plaintiff or otherwise.”
3.6 Generally
further the plea contains a denial of liability and an implied
admission of a failure to pay.
TEST
TO BE APPLIED: RE VAGUE AND EMBARRASSING PLEADINGS
:
[4]
4.1 In
Trope v
South African Reserve Bank and Another
and
two other cases 1992(3) SA 208 (TPD), McCreath J stated the test as
follows at 211A-D:
“
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
(Quinlin v
MacGregor
1960(4)
SA 383 (D) at 393E-H)."
Mr
Swanepoel, for the Defendant, referred to and relied on the aforesaid
judgment as well as the later statement therein that the
test is not
to produce an
“
exception
proof’
plea
for if this was 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".
4.2
I was also referred by both Mr Swanepoel as well as Mr De Beer who
appeared for the Plaintiff to the discussion of Rule 22 in
Erasmus,
Superior Court Practice
(at
B1-46 and further).
4.3 In particular,
in defence of the plea, Mr Swanepoel relied on the following comment:
“
Where,
however, the PlaintifFs allegation is a simple one, and the defence
is merely a denial, there is no need for the Defendant
to go further
and to state any facts: His defence is based on a traverse or denial
and not on any facts."
This
also accords with
Van
Wvk en ‘n Ander v Boedel Louw
en
‘n Ander
1957(3)
SA
481
(KPA)
where, with reference to
Mordt
NO v Union Government
1938
TPD
589
at
597
this
court said:
“
I
am not prepared to
hold that there is a duty on a pleader to set out facts in
reinforcement of a denial."
4.4 Mr De Beer
however relied on the following comment and the cases quoted in
support thereof in Erasmus:
“
Whenever
a denial implies some positive allegation upon which the defence will
rest, the Defendant must go on to state the material
facts relied
on."
This particularly
related to the admission of payment having been made in an amount
which accords exactly with the certificates
pleaded by the Plaintiff.
AD
THE DENIAL OF ANNEXURE “1” TO THE DECLARATION
CONSTITUTING THE AGREEMENT
BETWEEN THE PARTIES
:
[5] 5.1 Annexure “1”
to the declaration consists of some 267 pages.
It
starts with a cover sheet wherein a company name at the heading
“
Drickot
Developments CC"
has
had two horizontal lines drawn through it and has been substituted by
the name of the Defendant. This amendment has apparently
been
initialled by the same persons who initialled the remainder of the
agreement on behalf of the Plaintiff and the Defendant.
The
Plaintiff’s name has been entered as tenderer on this page and
the name of Siyandiza Consulting Engineers (Pty) Ltd has
been printed
thereon being the engineers who had prepared and issued the document.
5.2
Annexure “1” has been supplied of an index prepared by
Siyandiza Consulting Engineers (Pty) Ltd (which appears on
the next
page) and in similar fashion the name of Drickot Developments CC has
been substituted by the name of the Defendant and
the amendment
initialled. The index indicates that the document (contract 1034/01)
for the installation of civil services for new
township development
on
“
BETHAL
X24, X25, X26 and X2T'
comprises
of Sections A to K. These sections constitute INVITATION TO
TENDERERS, TENDER CONDITIONS, LIST OF DRAWINGS, CONDITIONS
OF
CONTRACT, SPECIAL CONDITIONS OF CONTRACT, PROJECT SPECIFICATIONS,
SCHEDULE OF QUANTITIES, FORMS, SCHEDULES AND CERTIFICATES
TO BE
COMPLETED BY THE TENDERER, DATA SHEETS, PRO FORMAS and ANNEXURES “K1”
TO “K4”. On virtually all of
the sections and the
respective pages thereof, save for the Bills of Quantities, each page
ends with a number of blocks for initials
to be inserted on behalf of
the contractor (the Plaintiff), two witnesses and the
“
employer
”
and
two witnesses. On each of the pages where
“
Drickot
Developments
CC”
appear at the top thereof it has been replaced by the name of the
Defendant and initials have been appended. On the Bill
of Quantities,
where the signature blocks do not appear, the pages are in any event
initialled at the bottom thereof and at the
top thereof where
“
Drickot
Developments CC"
has
again been deleted.
5.3 After the
conclusion of the 267 pages constituting Annexure “1", one
finds a letter from Siyandiza Consulting Engineers
(Pty) Ltd dated 22
June 2007 directed to the Plaintiff. The relevant portion of the
letter reads as follows:
“
Dear
Sirs
BETHAL X24, 25,
26 AND 27 - CIVIL ENGINEERING SERVICES: CONTRACT 1034/01 -
APPOINTMENT FOR INSTALLATION OF CIVIL SERVICES
We have pleasure
in informing you that your tender on the abovementioned project has
been accepted and we have been instructed by
the client to appoint
you. The amount for which you are appointed is R4 074 212,26
excluding VA T and contingencies. Please note
that this appointment
is for X25 and X26 only. A decision on the rest of the development
will be taken in due course ... You are
to be on site by Monday 2
July 2007."
5.4 In view of the
aforesaid, it comes as no surprise that the Defendant’s denial
of the existence of the written agreement
and the denial that
Annexure “1” constituted the agreement between the
parties confused the Plaintiff. No explanation
is given for the
denial in the plea.
5.5 In the belatedly
delivered heads on behalf of the Defendant the explanation for the
denial and clarification of the plea is
made in paragraph 4.4 thereof
as follows:
“
If
regard is had to the contents of Annexure “1” attached to
the Plaintiffs declaration the following is evident:
4.4.1 In the
special conditions of contract (Section E) the ‘employer
1
is described as ‘Drickot Developments CC’.
5.6
It is then further argued that the denial of paragraph 4 of the
declaration to the effect that the Plaintiff and the Defendant
have
not concluded a written agreement and that Annexure “1”
attached to the declaration does not constitute such an
agreement
"is
a proper denial based on the contents of the annexure”.
5.7
It is indeed so that, on page 28 of the paginated papers, the first
page of the special conditions of contract defines in clause
1(1 )(l)
the “
employer
J
’
to
mean Drickot Developments CC. The same name, where it appears at the
top of this page has however been deleted and replaced with
that of
the Defendant (and initialled) and the page has also been initialled
at the bottom on behalf of the Plaintiff and the Defendant.
5.8 Apart from the
fact that the denial, read in context of the remainder of the
document, appears to be cynical it also appears
to be contradictory
and accordingly lacking in the necessary particularity. The
contradictions are not only vested in the remainder
of the documents
and the amendments thereon, but also in respect of the contents of
the engineer’s letter of acceptance.
5.9
In my view the following comment in Erasmus,
supra
,
at
B1-148A is applicable to the Defendants’ pleading:
“
In
some cases, even if the Defendant deals with all the allegations in
the Plaintiff’s combined summons or declaration, his
or her
defence will not properly appear. A bare denial of the Plaintiffs
allegations may in certain circumstances not fully convey
to the
Plaintiff the nature of the case he has to meet."
5.10 In my view, the
fact that the nature of the Defendant’s case only became clear
once clarified in heads of argument, constitutes
sufficient
indication that the pleading was vague.
5.11 The
embarrassment caused by the vagueness not only relates to the
difficulty in ascertaining the Defendant’s true defence
but
also in the procedural difficulties of considering a possible
replication referring to estoppel, the true intention of the
parties
or rectification or whatever else the Plaintiff may be advised to do.
5.12 The Defendant’s
argument to the effect that, had the Plaintiff properly read its own
document, it would have noticed
the discrepancy contained in the
single reference to Drickot Developments CC and therefore have
concluded that there is no written
agreement between the parties,
loses sight of the positive allegation that Annexure “1”
indeed constitutes an agreement
between the parties, that the parties
had both adjusted themselves in accordance with the terms thereof,
that the work required
and set out in meticulous and extensive detail
in the agreement had been performed and that that which had been
performed had indeed
been certified by the (Defendant’s)
engineer. The averments by the Plaintiff was therefore not of such a
simple nature that
a bare denial would have sufficed.
5.13 It is difficult
to conceive what the Defendant then avers the intention of the
Defendant was when it signed all the various
pages of Annexure “1”
where its name appears and on which it is now being sued. In my view
the bare denial in the present
instance did not suffice and caused
the plea to be vague and embarrassing and prejudicial to the
Plaintiff.
AD
DENIAL REGARDING PAYMENTS
:
[6] 6.1 As already
set out above, the Plaintiff has pleaded the delivery of six
consequential payment certificates and the certification
thereof by
the engineer. The Plaintiff further pleaded that all these
certificates had been paid by the Defendant.
6.2 The aforesaid is
not a cause of action but has been pleaded as precursor to the
Plaintiff’s cause of action based on the
similar furnishing and
certification of payment certificates 7 and 8 (pleaded in paragraphs
9 and 10 of the declaration) which
have not been paid.
6.3
Once the Defendant admitted having made
“
certain
payments”
to
the Plaintiff, the total of which accords exactly with the certified
totals of the first six certificates, the denial that the
payments
were in accordance with Annexure “1” certainly lacks
particularity.
6.4 In the absence
of an alternate basis for the payments which accord with the
certified certificates, the denial is certainly
vague. This vagueness
was again clarified by the heads delivered on behalf of the Defendant
and in the debate with Mr Swanepoel
whereby it was conceded that the
only basis for the denial of the payments having been in accordance
with the written agreement
between the parties, was the same denial
of the validity of said Annexure “1” due to the reference
to Drickot Developments
CC not having been deleted in a single
instance in Section E as it had been on all the other documents and
pages.
6.5 It is clear from
the copies of the paid certificates that the Defendant was the client
of Siyandiza Consulting Engineers (Pty)
Ltd (and would have signed
the certificates on which it has been so identified in the top
right-hand corner of each certificate)
and was therefore also the
client referred to in the document whereby the engineer had accepted
the Plaintiff’s tender as
set out in Annexure “1”
to the declaration. It must follow that all eight certificates have
been signed (and certified)
by the engineer of the Defendant.
6.6
Furthermore, Mr De Beer submitted on behalf of the Plaintiff that the
admission of payments amounted to a positive averment
which needed
amplification. He
inter
alia
relies
on the following comment in Erasmus:
“
An
explanation or a qualification of a denial will, for example, be
necessary where the denial is partial or where it implies some
positive allegation by way of an explanation upon which the defence
will rest."
6.7 Mr Swanepoel
argued that the denial of the payments having been in accordance with
Annexure “1” was sufficient and
needed no explanation
but, in view of the prior certifications and agency between the
Defendant and the consulting engineer to
which I have referred, the
admission of the payments but the denial of Annexure “1”
creates an obligation to furnish
particularity in respect of what
agreement or on what basis the payments had then allegedly been made.
The lack of such particularity
leads to a vagueness in the pleading
which, in similar fashion as above, led to embarrassment and
prejudice for the Plaintiff.
[7] Although eight
separate grounds of exception have been raised by the Plaintiff, in
view of the conclusions reached above, I
do not deem it necessary to
further burden this judgment with an exposition of these various
grounds which all in one way or another
relate to the two aspects
which I have dealt with herein before.
[8] In my view the
exception was properly taken on the first of the alternate grounds,
being vague and embarrassing. In view of
the order I propose making,
I do not deem it necessary to consider the alternate grounds.
[9] The order which
I make is the following:
9.1 The Plaintiff’s
exception is upheld with costs.
9.2 The Defendant’s
plea is hereby struck out.
9.3 The Defendant is
granted 15 days from date of this order to amend its plea, if it so
chooses, failing which the Plaintiff shall
be entitled to approach
this court on the same papers or as supplemented for an order for the
striking out of the Defendant’s
defence.
N DAVIS
ACTING JUDGE OF
THE HIGH COURT
GAUTENG DIVISION
PRETORIA