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[2015] ZAGPPHC 200
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Spangenberg N.O. v Kirsten (44352/13) [2015] ZAGPPHC 200 (19 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION, PRETORIA
)
APPEAL
CASE NO: 44352/13
DATE:
19 MARCH 2015
IN
THE MATTER BETWEEN
JACOBUS
SPANGENBERG N.O.
….......................................................................
Applicant/Defendant
and
WILLEM
FERDINAND
KIRSTEN
...........................................................................
Respondent/Plaintiff
JUDGMENT
LEGODI,
J
[1]
This is an exception taken against conditional particulars of claim
in an action instituted by Mr Willem Ferdinand Kirsten,
an auditor by
profession. The defendant in the conditional claim is Jacobus
Spangenberg N.O sued in his capacity as an executor
of the estate of
the late Francois Du Preez (the deceased) who was also an auditor by
profession.
[2]
The plaintiff had previously worked with the deceased in an auditors’
firm called F du Preez GR SA. This was during
1998. He
worked with the deceased until somewhere in 2004 when he left the
deceased’s firm to work elsewhere in Polokwane
also as an
accountant.
[3]
Before he left, he had already concluded an oral agreement with the
deceased in terms of which the plaintiff and one Mr Conrad
Fourie who
was also employed in the deceased’s firm, purchased the firm,
Francois du Preez GR(SA) for an amount of R1 000 000.
The purchase price was payable upon the death of the deceased.
For this purpose, a life policy to the value of R1 000 000
was taken on the life of the deceased with Sage Life. The
deceased was responsible for the payment of the premiums.
[4]
In a meeting of the 17 May 1999, the deceased, the plaintiff and Mr
Conrad Fourie reduced their agreement into writing.
On the 8
December 2005, Mr Conrad Fourie ceded all his rights to the
plaintiff. The deceased died on the 22 July 2010.
On the
8 September 2010, the insurance company, that is, Momentum Life made
a payment of R1 000 000 to the plaintiff
in terms of the
policy. Momentum Life had taken over the policy from Sage Life.
[5]
After the death of the deceased and after payment of the R1 000 000
to the plaintiff, the plaintiff failed to make
payment to the estate
of the deceased. The executor of the estate, the defendant in
the present action instituted an action
(first action) against the
plaintiff in terms of which the R1 000 000 paid is
claimed. The plaintiff had already
pleaded in the first action.
[6
On the 19 July 2013, the plaintiff instituted the present action
against the defendant (the plaintiff in the first action) in
his
capacity as the executor. The action is framed as a
“conditional claim”, in terms of which, the amount
of
R1 000 000 is claimed. It is this action against
which an exception has been noted. Several grounds for
the
exception are raised, about 24 in number. They all revolve
around paragraph 6 of the conditional particulars of claim,
in
particular paragraphs 6.1 and 6.2 thereof. Paragraph 6 reads in
Afrikaans as follows:
“
6.
Die koopsaak (die oudieteursfirma waarna verwys word in die
Verweerder se gewysigde besonderhede van vordering in die eerste
ingestelde aksie) het defekte gehad wat, objektief beskou, die
koopsaak se waarde en effektiwiteit asook die koopsaak se
gebruiksaamheid
en geskiktheid vir die doel waarvoor dit anngekoop
was, negatief beïnvloed het. Hierdie defekte het bestaan
op of ongeveer
20 November 1998 en daarna en spesifiek gedurende of
ongeveer die tydstip waarop enige ooreenkoms met betrekking tot die
aankoop
van die ouditeursfirma aangegaan was. Hierdie defekte
was ween of meer of al van die volgende gewees:
6.1
Die oorledene het onregmatiglik, en opsetlik
alternatiewelik
nalatiglik oor ‘n tydperk van etlike jare voor en tydens die
datum 20 November 1998 geld wat aan hom toevertrou was in sy
hoedanigheid as beheerder en bestuurder en eienaar van die koopsaak
(die ouditeursfirma Francois de Preez GR (SA) vir himself geneem
en/of wanaangewend;
6.2
Die oorledene het deur sy opsetlike
alternatiewelik
natlatjie en onregmatige optrede, voor en tydens 20 November 1998,
veroorsaak dat die koopsaak se waarde dramaties afneem deurdat
die
oorledene die ouditeursfirma onvoldoende en/of onvolledid en/of nie
behoorlik nie, bestuur, beheer en/of bedryf het en deurdat
die
oorledene die sake en belange van die kliënte van die
ouditeursfirma wesenlik afgeskeep het, tot so ‘n mate dat
die
kliëntetal van die ouditeursfirma dramaties afgeneem het voor en
tydens en na die datum 20 November 1998.
6.3
Die defekte voormeld was latent.
6.4
Die waarde van die koopsaak (die ouditeursfirma) tesame met die
defekte voormeld was Rnil
alternatiewelik
was
die outditeursfirma se waarde nominal gewees (R100 of sodanige ander
bedrag as wat deur die agbare Hof bevind mag word).
[7]
The point taken is that the averments in subparagraphs 6.1 and 6.2
are vague and embarrassing. An exception is a legal
objection
to the opponent’s pleadings. It complains of a defect
inherent in the pleading, admitting for the moment
that allegations
in the particulars of claim or declaration or plea are true. It
asserts that even with such admission, the
pleading does not either
disclose a cause of action or a defence as the case may be
[1]
.
It follows that, where an exception is taken, the court must look at
the pleaded exception as it stands
[2]
.
No facts outside those stated in the pleading can be brought into the
issue, except in the case of inconsistency
[3]
.
Whenever an exception is taken to any pleading, the grounds upon
which the exception is founded shall be clearly and concisely
stated.
[8]
An exception that a pleading is vague and embarrassing is not
directed at a particular paragraph within a cause of action.
It
goes to the whole cause of action, which must be demonstrated to be
vague and embarrassing
[4]
.
The exception is intended to cover the case where, although a cause
of action appears in the particulars of claim or declaration,
there
is some defects or incompleteness in the manner in which it is set
out, which results, in the embarrassment to the defendant
[5]
.
An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not its legal
validity
[6]
.
Non-compliance with the Rules will amount to vagueness and
embarrassment.
[9]
An exception that a pleading is vague or embarrassing will not be
allowed
unless
the excipient will be seriously prejudiced
if the offending allegations were not expunged
[7]
.
The effect of this is that the exception can be taken only if the
vagueness relates to the cause of action. The
defendant/excipient’s
counsel in the present case argued that
the particulars of claim as pleaded in subparagraphs 6.1 and 6.2 do
not meet the requirements
in sub-rules (6) and (10) of Rule 18.
The two sub-rules read as follows:
“
(6)
A party who in his pleading relies upon a contract shall state
whether the contract is written or oral and when, where and by
whom
it was concluded and if a contract is written a true copy thereof or
of the part relied on in the pleading, shall be annexed
to the
pleading.
(10)
A plaintiff suing for damages shall set them out in such a manner as
will enable the defendant reasonably to assess the quantum
thereof:
Provided that a plaintiff suing for damages for personal injury shall
specify his date of birth, the nature and
extent of the injuries, and
the nature, effects and duration of the disability alleged to give
rise to such damages, and shall
as far as practicable state
separately what amount, if any, is claimed for-
(a)
medical costs and hospital and other similar expenses and how
these costs and expenses are made up;
(b)
pain and suffering, stating whether temporary or permanent and
which injuries caused it;
(c)
disability in respect of-
(i)
the earning of income (stating the earnings lost to date and
how the amount is made up and the estimated future loss and the
nature
of the work the plaintiff will in future be able to do);
(ii)
the enjoyment of amenities of life (giving particulars);
and
stating whether the disability concerned is temporary or permanent;
and
(d)
disfigurement, with a full description thereof and stating
whether it is temporary or permanent”.
[10]
The contention by counsel on behalf of the defendant was that the
plaintiff had failed to meet any of the requirements set
out in
sub-rule (6). I cannot agree with this submission. There
are two actions involving the two parties. The
first one was an
action instituted by the executor on behalf of the estate of the
deceased. The second action is the present one
instituted by the
plaintiff who is the defendant in the first action. In his
particulars of claim, the plaintiff refers to the
averments made in
the first action where the oral agreement and reduced into writing in
a document signed by all the parties on
the 17 May 1999 is pleaded.
He pleaded by incorporating the contents thereof as pleaded in the
first action. Based on all
these, the provisions of sub-rule
(6) of Rule 18 should be found to have been complied with and there
is therefore no basis to
attack the particulars of claim that they
are vague and embarrassing for non-compliance with the provisions of
sub-rule (6). The
terms of the agreement are as pleaded in the first
action are incorporated in the present action.
[11]
As regards to non-compliance with sub-rule (10), the suggestion was
that sub-paragraphs 6.1 and 6.2 of the conditional particulars
of
claim lack the necessary averments to comply with what is provided in
the sub-rule.. That is, the plaintiff is claiming
damages based
on the alleged auditor’s firm having no value at all or that at
least its value amount to R100. The contention
was that the
damages are not set out in such a manner as will enable the defendant
reasonably to assess the quantum. That
is, the basis on which
it is alleged that the value of the firm as at the time of the death
of the deceased and at the time the
plaintiff took over was nil or
R100 is not set out with sufficient particularity to enable the
defendant to make a determination
as to how the nil or R100 value was
arrived at.
[12]
The test applicable in deciding an exception based on vagueness and
embarrassment arising out of such lack of particularity,
of relevance
to the present case, can be summed up as follows:
First,
in each case, the court is obliged first of all to consider whether
the pleading does lack particularity to extent amounting
to
vagueness. If a statement is vague, it is either meaningless or
capable of more than one meaning. Put simply, the reader
must be
unable to distil from the statement a clear single meaning.
Second,
if there is vagueness in this sense, the court is then obliged to
undertake a quantitative analysis of such embarrassment
as the
excipient can show is caused to him by the vagueness complained
of
[8]
. It must be shown
that the excipient will be substantially embarrassed by the vagueness
or lack particularity.
Three,
in each case an
ad
hoc
ruling must be made as to whether the embarrassment is so serious as
to cause prejudice to the excipient if he is compelled to
plead to
the pleading in the form to which he objects
[9]
.
The ultimate test as to whether or not the exception should be upheld
is whether the excipient is prejudicial. The
onus is the
excipient to show both vagueness amounting to embarrassment and
embarrassing amounting to prejudice
[10]
.
[13]
Now coming back to the pleading complained of, that is subparagraphs
6.1 and 6.2, it is important to remember that an exception
that a
pleading is vague and embarrassing is not directed at a particular
paragraph within a cause of action. It goes to
the whole cause
of action which must be demonstrated to be vague and embarrassing.
Whilst the defendant’s counsel confined
himself to
subparagraphs 6.1 and 6.2, the enquiries must go beyond just these
two subparagraphs. What was pleaded preceding
subparagraphs 6.1 and 6.2 in paragraph 6, is very important. It
explains the cause of action and the subparagraphs under
paragraph 6,
all of them seek to explain the grounds upon which it is alleged that
the deceased conducted the firm as a going concern
in a manner that
rendered it valueless resulting in latent defects of the business,
which defects are set out in the subparagraphs
up to subparagraph
6.4. Paragraph 6 is quoted in its entirety in paragraph 6 of
this judgment.
[14]
What is clear from averments made in paragraph 6 is the conduct of
the deceased which is alleged made the business to be of
no value.
The fact that there is no quantification of the nil value or R100
value, in my view, would not seriously prejudice
the defendant to be
unable to plead. The plaintiff could still plead. The
twenty four grounds of objection raised as
grounds of exception can
well be suited for further particulars for the purpose of preparing
for trial.
[15]
Consequently, the exception is dismissed with costs.
M
F LEGODI
JUDGE
OF THE HIGH COURT
FOR
THE APPLICANT/DEFENDANT: ADV. J C KLOPPER
INSTRUCTED
BY: CORRIE NEL & KIE ATTORNEYS
c/o
JACQUES ROETS ATTORNEYS
404
Diana Street
Lynnwood, PRETORIA
REF:
J18/12/J ROETS
FOR
THE RESPONDENT/PLAINTIFF: ADV. Z SCHOEMAN
INSTRUCTED
BY: HUTTING ATTORNEYS
c/o
COUZYN HERTZOG & HORAK
321
Middle Street
Brooklyn
Square, PRETORIA
REF: MR
NEL/md/Hat27/003
JUDGMENT
RESERVED ON: 02 MARCH 2015
JUDGMENT
HANDED DOWN ON: 19 MARCH 2015
[1]
Steward
v Botha
[2008] ZASCA 84
;
2008
(6) SA 310
(SCA) at 313 f.
[2]
Burger
v Rand Water Board
2007
(1) SA 30
(SCA) at 32 D-E.
[3]
Soma
v Morulane NO. 1975 (3) SA 53 (T).
[4]
Jowell
v Bramwell-Jones
1998
(1) SA 836 (W).
[5]
Trope
v South African Reserve Bank
[1993] ZASCA 54
;
1993
(3) SA 264
(A) at 268F.
[6]
See
Trope
at
269 I.
[7]
Gallagher
Group Ltd v IO Tech Manufacturing (PTY) Ltd
2014
(2) SA 157
GNP at 166 G-H.
[8]
See
Venter and Other
supra
at 644 A-B.
[9]
International
Tobacco Co of SA Ltd v Wollheim 1953 (2) SA 603 (A).
[10]
Standard
Bank of South Africa Ltd v Huningdory Investments
194
PTY Ltd and Another
(NO.1)
2010 (1) SA 627
(C)