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[2015] ZAKZDHC 60
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Autopack Distributors CC v Compendium Insurance Group (Pty) Ltd (9935/2014) [2015] ZAKZDHC 60 (7 August 2015)
IN
HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
CASE
NO: 9935/2014
DATE:
07 AUGUST 2015
AUTOPACK
DISTRIBUTORS
CC
....................................................................................
PLAINTIFF
And
COMPENDIUM
INSURANCE GROUP (PTY)
LTD
...................................................
DEFENDANT
JUDGEMENT
Delivered:
07 August 2015
MBATHA
J
[1]
The Defendant has noted an Exception to the Plaintiff’s
particulars of claim on the basis that they are vague and
embarrassing,
and alternatively fail to disclose a cause of action.
[2]
A notice to the Plaintiff to remove the cause of complaint was
delivered in terms of Rule 23(1) of the Uniform Rules of Court.
The
Plaintiff did not respond to that notice, which precipitated this
application before me.
[3]
It is important that I first deal with the applicable principles in
an Exception as stated in Erasmus, Superior Court Practice
at B1 154
to B1 154A.
“
(a)
In each case the court is obliged first of all to consider whether
the pleading does lack particularity to an extent amounting
to
vagueness. Where a statement is vague it is either meaningless or
capable of more than one meaning. To put it at its simplest;
the
reader must be unable to distill from the statement a clear, single
meaning.
(b)
If there is vagueness in this sense, the court is then obliged to
undertake a quantitave analysis of such embarrassment as the
excipient can show is caused to him or her by the vagueness
complained of.
(c)
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 or she is compelled to plead to the pleading in the form to which
he or she objects. A point may be of the utmost importance
in
one case, and the omission thereof may give rise to vagueness and
embarrassment, but the same point may in another case be only
a minor
detail.
(d)
The ultimate test as to whether or not the exception should be upheld
is whether the excipient is prejudiced.
(e)
The onus is on the excipient to show both vagueness amounting to
embarrassment and embarrassment amount to prejudice.
(f)
The excipient must make out his or her case for embarrassment by
reference to the pleadings alone.
(g)
The Court would not decide by way of exception the validity of an
agreement relied upon or whether a purported contract may
be void for
vagueness.”
Furthermore,
the exception must relate to the entire cause of action and not a
paragraph thereof.
[4]
Briefly, the Defendant acted as an insurance broker for the
Plaintiff. The Defendant had to procure an insurance cover for the
Plaintiff from Hollard Insurance Company. The Plaintiff had its
premiums up to date when on the 25
th
of August 2011 a fire broke out in its premises and caused extensive
damages totalling to a sum of R33 874 735.00. The
insurance
company repudiated the claim. The Plaintiff then sued Hollard
Insurance Company in North Gauteng High Court, where the
Insurance
Company defended the claim on the basis that the installation of an
insured machine by the Plaintiff did not comply with
certain national
standards and regulations. Therefore, the Plaintiff had not complied
with the warranty agreement as a result that
the Plaintiff’s
claim was compromised at R1,8 million.
[5]
Then the Plaintiff proceeded against the Defendant on the basis that
the Defendant owed a duty of care to the Plaintiff in that
it ought
to have ensured that the Plaintiff was adequately insured. The
Plaintiff contends that the Defendant failed to draw
to its attention
the obligations imposed by the insurer, including the specific
warranties in the policy pertaining to the installation
of the
Plaintiff’s equipment and machinery and that in terms of the
policy the Plaintiff was required to have ensured that
the installed
equipment and machinery were covered by a certificate of compliance
issued by a master installation electrician.
[6]
The excipient’s case is that the Plaintiff’s claim
appears to be based on a duty of care owed by the excipient to
the
Plaintiff. It is submitted that a breach of that mandate would
require the Plaintiff to plead the terms of the mandate.
The
mandate would be a contract of agency and the liability of the
insurance broker would be determined by the terms of the mandate.
However, there are no allegations made in the particulars of claim of
the conclusion of such a mandate. The Plaintiff has
failed to
plead the basis for the existence of such a duty. It is further
submitted that a breach of a contractual duty does
not necessarily
constitute a wrongful act for purposes of Aquilline liability.
It
is further averred in the heads of argument that it is not the duty
of the broker to ensure that the Plaintiff had to comply
with his
obligations under the insurance policy.
It
is further submitted that there is no allegation that the Plaintiff
would only have been required to comply with the national
standards
and regulations if the Defendant had informed the Plaintiff that
those were required in terms of the policy of insurance.
Therefore,
the excipient seeks an order that would grant the Plaintiff leave to
amend its particulars of claim to cure the causes
of complaint,
besides upholding the exception.
[7]
In opposing the application, the Plaintiff avers that the broker is
an agent and the laws of agency come into play in this scenario.
He
has the information within his knowledge. Such a contract of mandate
obliges the agent to fulfil his mandate faithfully, honestly
and with
due care and diligence. This is implied in the allegation by the
Plaintiff that the Defendant’s acting as a broker
for purposes
of securing insurance is that an agreement existed between the
Plaintiff and the Defendant for such purpose.
It
further avers that the Defendant was obliged to have informed the
Defendant of the terms of the policy. The Plaintiff has disclosed
a
cause of action and that the failure of the broker to inform the
Plaintiff of the terms of the policy is the factual basis of
the
Plaintiff’s claim. I was referred to
Evins
v Shield Insurance Co. LTD
[1]
on this aspect.
[8]
The test in deciding an exception is clearly set out in one of my
opening paragraphs as stated in Erasmus. An exception that
a pleading
is vague and embarrassing should not be directed at a certain
paragraph of the pleading but at the cause of action as
a whole,
which must be demonstrated to be vague and embarrassing.
Jowell
v Bramnell Jones and Others
[2]
states as follows:
“
I
must first ask whether the exception goes to the heart of the claim
and, if so, whether it is vague and embarrassing to the extent
that
the Defendant does not know the claim he has to meet…”
Vagueness
could arise from the formulation of the pleading, absence of
necessary averments or incomplete pleadings. Serious prejudice
must
arise from these defects.
[9]
It must also be borne in mind what is stated in Rule 18(4) of the
Uniform Rules of Court which requires that every pleading
“
Shall
contain a clear and concise statement of the material facts upon
which the pleader relies for his claim…with sufficient
particularity to enable the opposite party to reply thereto.”
It
must also not be forgotten that the object of pleadings is to define
the issues between the parties. In
Odgers Principles of
Pleading and Practice in Civil Actions in the High Court of Justice
22
nd
Edition
at
page 113, it is stated as follows:
“
The
object of pleading is to ascertain definitely what is the question at
issue between the parties; and this object can only be
obtained when
each party states his case with precision.”
[10]
I have applied the aforementioned tests to the particulars of claim
before me. I have to be persuaded by the excipient
that the
pleading is excipiable on every interpretation that can be reasonably
be attached to it. See
Picbel
Groep Voorsorg Fonds (in liquidation) v Somerville and related
matters
[3]
.
[11]
The Plaintiff was given a notice to cure the defect by the Defendant,
but did not act upon it. It did not concede even at that
stage that
the particulars of claim were excipiable.
[12]
It was submitted on the behalf of the Defendant that it is not clear
whether this was a delictual or a contractual claim. The
Defendant
relied here on the decision in
Wellworths
Bazaars LTD v Chandlers LTD and Another
[4]
which held that a declaration in which damages are claimed and which
does not set out clearly whether the claim is based on delict
or a
breach of contract or on both, is excipiable as being vague and
embarrassing.
It
was further submitted that the causal relationship between conduct
and result was not set out in the particulars of claim and
what is
stated in the paragraph 23 of the particulars of claim is not
sufficient.
There
is no allegation explaining the mandate, which mandate should be
found in the contract. It relied on
Harvest
Trucking Co. LTD v P.B Davis T/A P.B. Davis
Insurance Services
an English case taken from
Lloyds’
Law Reports page 639
. It
submits that at best the Plaintiff should have set out the terms of
the contract. I do not agree with this submission
as it is
clear from the particulars of claim that there was a contract between
the parties.
[13]
My understanding of the basis of the Plaintiff’s claim is that
the Defendant is sued on the basis of his failure to bring
to the
attention of the Plaintiff the material provisions of the contract
which led to the compromise of the Plaintiff’s
claim.
[14]
I have been unable to find such an embarrassment or vagueness that
would make these pleadings excipiable. The ultimate test
being
prejudice to the excipient. I have looked at the entire
particulars of claim and cannot find such vagueness or embarrassment
that would lead to any form of prejudice to the excipient. The
particulars of claim in my view disclose a cause of action
with
sufficient clarity to enable the Defendant to plead thereto.
[15]
In support of my view, I rely in the case of
MN
v AJ
[5]
relying on
Suid
Afrikaans Oderlinge Brand – en Algemene Versekerings –
maatskappy
Bpk
v Van der Berg en ‘n Ander
[6]
,where
the Court held as follows:
“
[24]
While pleadings must be drafted carefully a court should not read
them pedantically nor should it overemphasize precise
formalistic
requirements; the substance of the allegations should be
properly considered.”
[16]
In all the grounds raised by the excipient, I am not satisfied that
it has discharged the required onus of proof for this Court
to uphold
the exception.
[17]
I therefore make the following order:
(a)
The exception is dismissed with costs.
MBATHA
J
Date
of hearing : 03 August 2015
Date
delivered : 07 August 2015
Appearances
:
For
the Plaintiff : Adv. Voormolen SC
Instructed
by : Tomlinson Mnguni James
GM
Parker Attorneys
Pinetown
For
the Defendant : Adv. AC Camp
Instructed
by : Norton Rose Fulbright South Africa
La
Lucia Ridge
[1]
1980
(2) SA 814
at 825 g.
[2]
1998
(1) SA 836
(W) at 905E-H
[3]
2013
(5) SA 496
(SCA) at 501 A-B.
[4]
1948
(3) SA 348 (W).
[5]
2013
(3) SA 26 (WCC)
[6]
1976
(1) SA 602
(A) at 607E.