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[2014] ZAGPPHC 86
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Land and Agricultural Bank of South Africa v Westside Trading 570 (Pty) Ltd and Others (23733/12) [2014] ZAGPPHC 86 (28 February 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 23733/12
DATE:
28 FEBRUARY 2014
In
the matter between:
LAND
AND AGRICULTURAL BANK OF SOUTH AFRICA
and
WESTSIDE
TRADING 570 (PTY)
LTD
....................................................
1
st
DEFENDANT
PETER
JACOB
SIHLANGU
.....................................................................
2
nd
DEFENDANT
MANDLA
JONATHAN
SHUMA
..............................................................
3
rd
DEFENDANT
DESMOND
KHALID
GOLDING
............................................................
4
TH
DEFENDANT
FIRST
EXCIPIENT
LINDIWE
MICHELLE
MASEKO
...........................................................
5
TH
DEFENDANT
KENEILWE
LYDIA
SEBEGO
....................................................................
6
th
DEFENDANT
JUDITH
SUSAN
BORNMAN
.....................................................................
7
th
DEFENDANT
GEZINA
DOROTHEA VAN
ROOYEN
...................................................
8
TH
DEFENDANT
SECOND
EXCIPIENT
NGWANE
ROUX
SHABANGU
.................................................................
9
th
DEFENDANT
ANTON
JOHANNES DU
PLESSIS
.....................................................
10
TH
DEFENDANT
JUDGMENT
BAM,
J
1.
The
two excipients, fourth and eight defendants, raised an exception
against the plaintiffs particulars of claim. The claim against
the
defendant's was initially based on a written loan agreement but
subsequently, after lodging of the exception, amended, substituting
the cause of action with two other causes. The grounds of exception
were however not amended and remained the same.
2.
The
exception is based thereon that the particulars of claim are vague
and embarrassing and/or do not disclose a cause of action.
3.
The
grounds for the exception are the following:
(i)
Failing
to allege that the conditions in paragraph 2 of the loan agreement
were fulfilled or waived;
(ii)
Failure
to allege, in respect of the settlement agreement or acknowledgement
of liability, whether such agreement was oral or in
writing, who
represented the plaintiff and the company in liquidation (Westside
Trading), and the date and place where the agreement
was concluded;
and
(iii)
Failure
to allege that a transaction between a third party and the company to
which repayment in terms of the settlement agreement
was allegedly
subject, was concluded.
4.
The
amended particulars of claim were delivered on 23 October 2013. It
was not opposed. The plaintiff now claims payment of R82
million
based on an acknowledgement of liability and a suretyship. Despite
the amendment the excipients, as alluded to above, persist
with the
exception based on the issues initially complained about, except for
one issue which is not relevant, pertaining to a
now deleted
paragraph of the particulars of claim. The grounds of exception also
include an objection in terms of Rule 18(6) in
respect of par 27.2 of
the present particulars of claim.
5.
It
was contended on behalf of the plaintiff that in view of the
plaintiff now basing its claim on an acknowledgement of liability
and
not on the agreement between the plaintiff and the Company, as
initialiy alleged in the Particulars of Claim, that the excipients'
complaints, save for the objection in terms of Rule 18(6) against the
averment contained in paragraph 27.2 of the amended particulars
of
claim, have fallen away,
6.
It
is common cause that the Company referred to in the particulars of
claim is Westside Trading 570 (Pty) Ltd (in liquidation),
represented
by the liquidator, first defendant.
The
written agreement in question was concluded on 6 July 2006.
7.
The
two excipients, fourth and eighth defendants, are cited in their
personal capacities. The plaintiff did not aver that the two
excipients were parties to the said agreement or how they were
involved with the business of the Company, except to aver that the
two excipients were parties to a written deed of suretyship, attached
to the particulars of claim s annexure "C". The
plaintiffs
case against the two excipients is clearly based on the alleged
suretyship.
8.
Mr
Venter, appearing on behalf of the two excipients, submitted that the
plaintiff was obliged to deal with the conditions precedent
to which
the agreement was subject to. In this regard the plaintiffs failure
still caused the particulars of claim, despite the
amendment, to be
without a cause of action, alternatively, vague and embarrassing.
9.
The
excipients are also complaining about the lack of necessary averments
in regards to paragraph 27.2 of the amended particulars
of claim. In
this paragraph the plaintiff referred to the contents of a letter
dated 13 February 2009, attached to the particulars
of claim as
annexure “D", directed by the plaintiff to the Financial
Director of the Company, Mr Golding, The letter
contains, inter alia,
the following:
"...
the Company and the plaintiff agreed to fully and finally settle the
Company's indebtedness to plaintiff on payment of
R82 Million”
10.
The
plaintiff further averred that the "Company" appended its
signature to the letter and thereby acknowledged receipt
of the
Setter..."
Annexure
"D" was indeed signed by somebody representing the Company.
Mr Seleka, appearing for the plaintiff, submitted
it was signed by
the first excipient. This was not contested.
11.
Rule
18(6) is clear. It provides, amongst others, that when a party bases
its case on an agreement it needs to state whether the
agreement was
oral or in writing and who represented the parties. The question
arising in this matter is whether the plaintiff
was obliged to be
more specific in regards to the averments in par 27.2 of the amended
particulars and whether the conditions referred
to in the agreement
should have been addressed.
12.
Both
counsel referred to Net and Others NNO v MacArthur 2003(4) 142 (T).
In view of the ruling in that decision it is clear that
a Court
seized with an application of this nature has to consider the
particulars of claim as a whole.
13.
It
is indeed so that the plaintiff in its amended particulars of claim
still refers to the written agreement entered into between
the
parties. However the new cause of action does not rely on the initial
agreement and the conditions referred to in the agreement.
The basis
for the claim has shifted to a totally different cause of action
being the alleged acknowledgement of debt and the subsequent
signing
of the suretyship. In so far it concerns the two excipients, the
plaintiff's claim is based on the written suretyship.
14.
Accordingly,
the excipients' complaint that the plaintiff failed to make averments
in regards to whether the conditions in paragraph
2 of the agreement
were fulfilled, or waived, seems to me not to be material as far as
it may concern the new causes of action.
In this regard I am in
agreement with Mr Seleka that the applicant's complaints do not
strike at the root of the plaintiffs cause
of action, as it is
required to do in order to be effective. The complaints seem to be of
a peripheral nature and should not preclude
the excipients from
pleading to the plaintiff's averments in respect of the new causes of
action. The excipient's complaints seejn
to be directed to isolated
issues in the particulars of claim. This is contrary to what was
ruled in inter alia Joweli v Bramweil-
Jones 1998(1) A 836(W) at
899F-G and the dictum in Nel, supra.
15.
In
considering the excipients grounds of exception, it is of importance
to determine whether they are material and whether they
affect the
whole cause of action, in view of what the causes of action now are,1
have arrived at the conclusion that the particulars
of claim are not
vague and embarrassing, and, in my view, comply with the provisions
of Rule 18(6). The issues material to the
excipients' alleged
liability are sufficiently addressed to enable the excipients to
plead. There was no need that the plaintiff
had to be more specific.
The excipients were sufficiently informed of what the case against
them is based upon. The mere fact that
certain disputes may exist
between the parties in respect of certain provisions of the agreement
does not affect the excipients'
ability to plead to the averments. In
my view those issues, if they remain in dispute, can be sorted out
during the trial.
16.
Accordingly
the exception cannot succeed and the following order is made:
1.
The
exception is dismissed with costs.
2.
The
excipients are ordered to file their plea to the plaintiffs
particulars of claim not later than 20 March 2014.
A
J BAM
JUDGE
OF THE HIGH COURT
27
February 2014.