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[2015] ZAGPPHC 579
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Straton v Firstrand Bank Limited (20928 / 2013) [2015] ZAGPPHC 579 (30 July 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 20928 / 2013
DATE:
30 JULY 2015
In
the matter between:
GRAHAM
BRUCE
STRATON
...........................................................................................
PLAINTIFF
AND
FIRSTRAND
BANK
LIMITED
......................................................................................
DEFENDANT
JUDGMENT
MAVUNDLA,
J.
[1]
The crisp issue to be decided in casu,
as a preliminary point is one relating to separation in terms of Rule
33(4) and to dispose
the matter on the grounds that the plaintiffs
particulars of claim do not disclose the cause of action.
[2]
At the commencement of the matter, the
defendant beseeched this Court to grant separation in terms of Rule
33(4) and dismiss the
action. It was further submitted that, the
plaintiffs case as pleaded is that there was noncompliance with rule
19 which is not
applicable in motions proceedings and therefore there
is no wrongfulness proven on the pleadings.
[3]
The approach to be adopted when dealing
with Rule 33(4) application is eloquently stated, with respect, by
Bosielo JA in Molotlegi
v Mokwalase
[1]
as follows:
"A
Court hearing an application for separation of issues in terms of
Rule 33(4) has a duty to satisfy itself (I underline)
that the issues
to be tried are clearly circumscribed to avoid any confusion. It
follows that a Court seized with such an application
has a duty to
carefully consider the application to determine whether it will
facilitate the proper, convenient and expeditious
disposal of
litigation. The notion of convenience is much broader than mere
facility or ease or expedience. Such a Court should
also take due
cognisance of whether separation is appropriate and fair to all the
parties. In addition the Court... is also obliged,
in the interests
of fairness, to consider the advantages and disadvantages which might
flow from such separation. Where there is
a likelihood that such
separation might cause the other party some prejudice, the Court may,
in the exercise of its discretion,
refuse to order separation.
Crucially in deciding whether to grant the order or not the Court has
a discretion which must be exercised
judiciously. The Court cannot
simply grant such an application because it is unopposed."
[4]
In CNA v MTN
[2]
the Supreme Court of Appeal held that:
"Piecemeal
litigation is not to be encouraged. Sometimes it is desirable to have
a single issue decided separately, either
by way of a stated case or
otherwise. If a decision on a discrete issue disposes of a major part
of a case, or will in some way
lead to expedition, it might well be
desirable to have issue decided first."
[5]
In casu,
the reason why the defendant
seeks separation is to enable the Court to deal with the question of
whether the plaintiffs particulars
of claim are excepiable for lack
of averments which disclose the cause of action. It is contended that
granting the separation
and dealing with the exception would be
dispositive of the plaintiffs action and curtail the proceedings. The
defendant contended
that the plaintiffs particulars of claim are
excepiable. It was further submitted on behalf of the defendant that
the exception
raised, if upheld will curtail the leading of evidence
and be dispositive of the plaintiffs action because defendant prays
for
the dismissal of the plaintiffs action; vide Barclays National
Bank Ltd v Thompson.
[3]
[6]
Rule 18 of the Uniform High Court Rules
demands that the pleading must be lucid, logical, and succinct to
state and disclose the
facts upon which the cause of action is
premised; vide Trope v South African Reserve Bank and Another,
[4]
[7]
The plaintiff sued defendant for alleged
damages suffered, in respect of the first claim for financial loss in
an amount of R3 190
000. 00 and an alternative claim for damages in
an amount of R600 000. 00.
[8]
The plaintiff alleged in his particulars
of claim that: he was the owner of immovable property. His purchase
of the property was
financed by the defendant. The defendant
foreclosed on the home loan and obtained judgment against him by way
of an unopposed motion
proceedings. After the judgment was obtained
against him, he sold the property privately and settled the
outstanding debt to the
defendant. The defendant was not entitled to
the judgment because of dies non and that the judgment was therefore
unlawful. The
defendant misled him by not advising him that the
judgment was unlawful. The plaintiff did not know the correct
position (i.e.
the alleged unlawfulness of the judgment) he sold the
property and as the result he suffered damages.
[9]
The plaintiff in his particulars of
claim further pleaded, inter alia, that:
"3.8
On the 21 December 2011 the defendant again issued a Notice of Motion
[instead of a summons] in case 11 / 48607 in the
South Gauteng High
Court Johannesburg in this matter against the plaintiff for the
outstanding amount due on this property.
3.9
The dies non did not expire according to
the rules of the... court and on 26 January the defendant obtained a
default judgment against
the plaintiff for the outstanding amount and
the property was declared specially executable. The plaintiff had
only been granted
4 days to defend the matter instead of 10 days.
3.10
Defendant obtained default judgment
which is unlawful and contrary to the procedures and rules of the....
Court.
3.11-3.25
4. 5.2
The defendant's actions and obtaining the default judgment against
the plaintiff pertaining to dies non was illegal."
[10]The
defendant contended, quite correctly so, in my view, that Rule 19
only provides for dies non in respect of the delivery
of notice of
intention to defend in actions and not to a notice of intention to
oppose in motion proceedings. In any event it was
open to the
plaintiff to bring an application for rescission, which he failed to
do.
[11] It
is trite that Rule 6(5) in motion proceedings the respondent must
file his notice of intention to oppose within 5 days of
being served
with the application papers. In casu, the plaintiff contended that he
was given only 4 days. It may well be so, but
the fact that default
judgment was nonetheless granted against him, does not make the
default judgment unlawful or illegal. Such
judgment remains valid
until set aside.
[12]It
was submitted on behalf of the defendant that in essence the
plaintiff is alleging that the defendant's conduct in obtaining
judgment was wrongful and therefore legally actionable; or that the
defendant's failure to advise the plaintiff that it had obtained
the
allegedly wrongful judgment constitutes a misrepresentation by
silence causing the plaintiff to suffer damages. It was submitted
that there is no obligation on the part of the defendant to provide
legal advise to the plaintiff nor to inform him of the legality
or
lack thereof of the judgment obtained, which is in any event not
illegal.
[13]The
grounds upon which the exception is raised are that the plaintiff is
relying on an is delictual. It is trite that most delictual
actions
arise from acts which are prima facie, clearly wrongful, such as the
causing of damage to property or injury to a person;
vide of
Lillicrap, Wassenaar and Partners v Pilkington Brothers
[5]
.
For the plaintiff to succeed with his action against the defendant he
must allege and prove facts which establish an act on the
part of the
defendant, which is wrongful and has caused patrimonial damages. It
is contended that the plaintiffs particulars of
claim fail in this
regard.
[15]In
respect of wrongfulness; the conduct is wrongful if it either
infringes a legal duty owed by the defendant to the plaintiff.
The
legal duty may be imposed by statute or by the operation of common
law, in which case the imposition of the duty depends on
the
particular circumstance of the case. The inquiry is whether the
plaintiffs right has been infringed or the defendant has contravened
a duty which is based on whether the infringement of the plaintiffs
interest was in the particular circumstances objectively justifiable
or unjustifiable.
[6]
A conduct is wrongful or unlawful if it is unreasonable in the light
of all the circumstances. The defendant is expected to behave
in a
manner which will not harm the plaintiff; vide Adminsitrateur, TVL v
Van Der Merwe.
[7]
The question whether the action of the defendant in the circumstances
of a case was wrongful or unreasonable is a value judgment
call on
the part of the trial court.
[16]In
the matter of Carmichele v Minsiter of Safety and Security and
Another
[8]
it was held that: " [7] The appropriate test for determining the
wrongfulness of omissions in delictual actions for damages
in our law
has been settled in a number of decisions of this Court such as
Minister van Poiisie v Eweisl975 (3) SA 590 (A) at 597A
- C; Minister
of Law and Order v Kadirl995 (1) SA 303 (A) at 317C - 3181; C Knop v
Johannesburg City Councill995 (2) SA 1 (A) at
27G -1 and Government
of the Republic of South Africa v Basdeo and Another
1996 (1) SA 355
(A) at 367E - H. The existence of the legal duty to avoid or prevent
loss is a conclusion of law depending upon a consideration
of all the
circumstances of each particular case and on the interplay of many
factors which have to be considered. The issue, in
essence, is one of
reasonableness, determined with reference to the legal perceptions of
the community as assessed by the Court."
[17]The
plaintiff seems to be premising his cause of action on the default
judgment which was obtained by the defendant. In my view,
there is
nothing in the particulars of claim which demonstrate that the
obtaining of the default judgment is per se wrongful or
illegal as
alleged. Therefore there could never have existed a duty on the part
of the defendant to inform the plaintiff that the
judgment was
obtained wrongfully or illegally when there was no such wrongfulness
or illegality. From the particulars of claim,
one has difficulty in
discerning in what manner the defendant was negligent in obtaining
the default judgment. I deem it not necessary
to traverse every issue
raised by the plaintiff because, in my view, the particulars of claim
as a whole do not disclose any cause
of action and remain excepiable.
[18]The
plaintiff in his particulars of claim in the main and alternative
claim alleged, inter alia, damages for pain and suffering.
As
pleaded, the plaintiff is enjoined by Rule 18(10) to specify, inter
alia, the nature and extent of the bodily injuries suffered.
A
careful reading of the particulars of claim does not disclose any
facts upon which this claim is premised. In so far as the claim
for
pain and suffering is concerned, it needs to be borne in mind that
"whereas physical injury to a person or to corporeal
property is
prima facie unlawful, causing pure economic loss is not. Similarly,
loss caused by an omission may be actionable where
there is a legal
duty to act positively, but where the conduct complained of takes the
form of an omission, such conduct is prima
facie lawful. " vide
BOE Bank Ltd v Ries
[9]
.
The plaintiff must allege facts and prove that there was a legal
duty, not a moral duty, on the part of the defendant to avert
any
suffering or financial loss; vide Minister of Police v Ewels.
[10]
In my view, the particulars of claim are lacking in disclosing any
duty on the part of the defendant, obliging him to avert such
alleged
financial loss. Neither are any facts alleged showing any negligence
on the part of the defendant.
[19]In
my view, the particulars of claim fail to disclose any cause of
action. The defendant will be prejudiced were he to be subjected
to a
trial where evidence has to be led, when there is no cause of action
founded on the papers.
[20]Where
the pleadings are vague and embarrassing, or fail to disclose a cause
of action, the party complaining thereof may take
steps to raise such
complaint either in terms of rule 23 or rule 30; vide MN v AJ .
[11]
In casu, it is common cause that the defendant had in fact brought an
application seeking an order that: (i) the question of whether
the
plaintiff's particulars of claim are excepiable and be dealt with
separately in terms of Rule 33(4); and (ii) that the particulars
of
claim be declared excepiable and struck out. That particular
application came before the Court on the 8 October 2015, however
inexplicably, the defendant's counsel appeared before Ledwaba DJP and
the matter was removed from the roll and costs were reserved;
while
on the other hand the plaintiff's counsel appeared before Louw J and
the matter was removed from the roll and defendant was
ordered to pay
the costs. Both matters bore the same case number. In my view, under
such circumstances, it cannot be said that
the plaintiff was caught
by surprise when the defendant at the commencement of this matter
moved that the issue of separation and
excepiability of the
particulars of claim be argued before this Court. On the other hand,
in view of the fact that this Court holds
the view that the
particulars of claim do not disclose a cause of action, it is in the
interest of both parties that the separation
of the issues in terms
of rule 33(4) be granted. Further, in the light of the finding herein
above that the particulars of claim
do not disclose a cause of
action, this goes directly against the root of the action and
therefore warrants that this Court should
dismiss the action with
costs.
[21]It
is trite that the costs follow the event. It would therefore be
proper and fair that the plaintiff should be mulcted with
the costs
which must invariable include the reserved costs.
[22]
In the result, the following order is
made:
1.
That the issues of excepiability of the
particulars of claim is separated from the merits in terms of Rule
33(4);
2.
That the particulars of claim do not
disclose a cause of action;
3.
That the plaintiff's action is dismissed
with costs.
N
.M. MAVUNDLA JUDGE OF THE COURT
DATE
OF HEARING : 28/07/2015
DATE
OF JUDGEMENT : 30/07/2015
APPLICANT'S
ADV : ADV S J VAN RENSBURG
INSTRUCTED
BY : LAMPRECHT ATTORNEYS
DEFENDANT'S
ADV : ADV. R. H. WILSON
RESPONDENTS'
ATT : GLOVER INCORPORATED
[1]
2010
(4) ALL SA 258
(SCA) at 264 par 20.
[2]
2010 (3) SA 382
(SCA) at 408 par. 89
[3]
1989 (1) SA 547
(A) at 553H; Canadian Superior Oil Ltd v Concord
Insurance Co Ltd
1992 (4) SA 263
(W) at
266F-J.
[4]
1992 (3) SA 208 (TPD).
[5]
1985 (1) SA 475
(AD) at 497.
[6]
LAWSA, Vol 8, Part 1, 2
nd
Edition, para 59.
[7]
1994 (4) SA 3457
(A) AT 361.
[8]
[2000] ZASCA 149
;
2001 (1) SA 489
(SCA) at 494 par7
[9]
2002 (2) SA 39
at 46E-G/H.
[10]
1975 (3) SA 590
(AD) at 596h.
[11]
2013 (3) SA 26
(WCC) at 32-33 paragraphs [20]-[25].