About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2014
>>
[2014] ZAGPPHC 134
|
|
Figo Putso Construction CC v Lereko Mining Supplies (Pty) Ltd (32630/13) [2014] ZAGPPHC 134 (12 March 2014)
IN THE
NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
CASE
NO: 32630/13
DATE:
12 MARCH 2014
In the matter between
FIGO
PUTSO CONSTRUCTION CC
(Registration
Number: 2006/154073/23)
And
LEREKO
MINING SUPPLIES (PTY) LIMITED
(Registration
Number: 2004/007096/07)
DATE OF
HEARING: 27 JANUARY 2014
DATE
OF JUDGMENT: 12 March 2014
JUDGMENT
MALINDI AJ
INTRODUCTION
[1 ] The plaintiff filed summons on 23 October
2013.
[2]
On 22 July 2013 the defendant delivered
its notice in terms of Rule 23(1) calling upon the plaintiff to
remove certain causes of
complaint within 15 days. The plaintiff
failed to remove the causes of complaint.
[3]
On 22 August 2013 the defendant
delivered its notice of exception to the plaintiffs particulars of
claim on the grounds that they
are vague and embarrassing.
[4]
The plaintiffs claim against the
defendant arises out of a partly written partly oral agreement
entered into between the plaintiff
and the defendant on 12 December
2012. The plaintiff attaches what it contends are the written parts
of the agreement to its particulars
of claim as annexures “A"
and “B”.
[5]
The plaintiff alleges that the defendant
repudiated the agreement by way of a written communication to the
plaintiff which constituted
a "material breach" of the
agreement which entitled the plaintiff to cancel the agreement. The
plaintiff duly cancelled
the agreement and conveyed such election to
the defendant on 22 May 2013. The plaintiff pleads in the alternative
that it accepted
the defendant’s repudiation and communicated
such acceptance to the defendant on 22 May 2013.
[6]
The plaintiff makes allegations that it
and the defendant were aware of certain facts, inter alia that time
was of the essence regarding
delivery of the drill, when the
agreement was entered into and claim damages in an amount in excess
of R1,8 million, the amount
of R1 122 564,38 being payment the
plaintiff made to the defendant, and claims “special damages”
in the amount of R500
000,00 and R200 000,00 allegedly in respect of
expenses incurred as a result of the lease of an alternative drill
and wages allegedly
expended as a result of “standing time”.
THE GROUNDS OF EXCEPTION First Ground of
Complaint
[7]
In paragraph 4 of its particulars of
claim the plaintiff sets out what it alleges were the express,
alternatively tacit further
alternatively implied terms of the partly
written partly oral agreement. It pleads that the written parts of
the agreement are
attached as annexures “A” and “B”
to the plaintiffs particulars of claim.
[8]
It is however apparent from annexure “A”
itself that it contains contractual terms relating to the dates when
stages
of manufacture of the drill would be completed, when the drill
would be delivered by the defendant and when payment would be made
by
the plaintiff to the defendant.
Annexure “B” to the particulars of
claim is an order addressed by the plaintiff to the defendant and is
dated 12 December
2012. Annexure “B” also contains
contractual terms pertaining to the price of the drill and the date
of delivery of
the drill.
In the circumstances, the defendant contends,
the difficulty is that the order dated 12 December 2012 (annexures
“B”)
postulates an offer-to purchase the drill whereas
the pro forma invoice dated 11 December 2012 (annexure “A”)
postulates
acceptance of an offer to purchase the drill. In other
words, the offer to purchase the drill comes after the invoice.
Therefore
the offer was purportedly accepted before it had been made.
This is not explained.
The defendant has further complaints in this
regard that:
11.1.
Annexure “A” (part of the
same written agreement as annexure “B”) contemplates the
main assemblies of the
drill being completed by 15 March 2013 and the
drill itself being ready on 15 April 2013. In contradistinction,
annexure “B”
suggests that the date of delivery would be
8 March 2013.
11.2.
There is thus a material inconsistency
between annexure “A” and “B” and a fortiori,
a material inconsistency
with what the plaintiff pleads the material
terms of the agreement are.
[12]
These discrepancies and inconsistencies
are not explained by the plaintiff at all. The plaintiff does not
explain why or plead any
allegations as to why the offer post-dates
acceptance of the offer, why the express terms of annexures “A”
and “B”
(both parts of the written agreement) are
inconsistent with each other and in conflict with what the plaintiff
alleges the terms
of the agreement were.
[13]
The failure to plead any explanation for
the inconsistency in the written terms and in particular the delivery
dates has a knock-on
effect in that there is no proper explanation as
to why the defendant was in breach of the agreement and why it failed
to deliver
the drill to the plaintiff on or before 8 March 2013. For
example annexure “A” contemplates the drill only being
ready
for dispatch on 15 April 2013; consequently, the defendant’s
alleged failure to deliver the drill by 8 March 2013 would not
constitute a breach.
[14]
The defendant submits that having regard
to the difficulties highlighted above, the defendant is left guessing
as to the terms of
the agreement. Therefore plaintiff’s
particulars of claim do not have the degree of detail necessary to
properly inform the
defendant of the case that is being advanced.
[15]
The defendant submits that it is
prejudiced thereby as it is unable to plead properly thereto and
objects to pleading to the particulars
in such form.
[16]
The defendant submits that over and
above the alleged breaches of the agreement the plaintiff alleges
that the defendant repudiated
the agreement “by informing the
plaintiff, in writing, on 18 March 2013 that the defendant would not
be able to complete
the drill for the purchase price”. The
plaintiff refers to the email communication and attaches it as
annexure “C”
to the particulars of claim.
[17]
However, annexure “C” does
not say, in so many words, that the defendant would not be able to
complete the drill for
the purchase price. Since the allegations
attributed to annexure “C” do not appear therefrom, the
particulars of claim
do not contain any averments or make any
allegations that support the conclusion that annexure “C”
was a repudiation
of the agreement.
[18]
The criticism of the plaintiffs
particulars, read with annexure “C”, is thus that the
particulars fail to comply with
the basic tenet of pleading. They do
not clearly and concisely state the material facts upon which the
plaintiff relies for its
claim.
[19]
It is submitted that the plaintiff must,
in the particulars of claim, explain precisely what the repudiation
was with reference
to the actual content of the written communication
relied upon, not propound the plaintiffs own conclusion as to what it
says the
annexure says.
[20]
The third complaint is that the
plaintiff ought to have specified with some particularity as to how
the globular amounts of R500
000,00 and R200 000,00 are made up.
[21]
Rule 18(10) provides that a plaintiff
suing for damages shall set them out in a manner as will enable the
defendant reasonably to
assess the quantum thereof, in other words
enable the defendant to know why the particular amount being claimed
as damages is in
fact being claimed. The defendant complains that the
plaintiff has not done so and this is required.
[22]
In paragraph 3.3 and 3.4 of the
exception the defendant excepts on the basis that the plaintiff has
failed to plead any fact that
explains or sets out when the expenses
as a result of the alleged lease of the drill were incurred, when it
leased the alternative
drill, from whom it leased the drill, for how
long it leased the drill, precisely what standing time is, when the
wages in respect
of standing time were expended, why it incurred
those wages, to whom they were incurred, for what period it expended
the wages
and salaries and for how long the standing time endured.
[23]
The defendant submits that as in the
case of the second ground of exception, the failure to specify the
details set out above renders
the
pleading vague and imprecise and makes it
impossible to plead thereto with the resulting prejudice and
embarrassment to the defendant.
It submits that the missing details
highlighted in paragraphs 3.3 and 3.4 constitute facta probanda
relevant to the claim for “consequential
damages” and
without such particulars the pleadings fail to comply with Rule 18(4)
of this Honourable Court.
[24]
The court is to decide whether the
defendant cannot understand the basis of the case against it unless
and until the plaintiff explains
the facts referred to above.
THE LAW
[25]
The parties rely on more or less the
same authorities to advance their contentions. The leading case of
Trope v South African Reserve
Bank
[1]
is referred to by both parties. Essentially, the case states that an
exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration, first, whether the
pleading lacks particularity to the extent that it is vague,
and
secondly, whether the vagueness causes embarrassment of such a nature
that the excipient is prejudiced
[2]
.
[26]
A defendant is not permitted to take
exception by using- Rule 23 as a means of complaining about a lack of
sufficient information
for purposes of trial.
[3]
[27]
Rule 18 (4) requires that:
“Every pleading shall contain a clear and
concise statement of the material facts upon which the pleader relies
for is claim,
defence or answer to any pleading, as the case maybe,
with sufficient particularity to enable the opposite party to reply
thereto."
[28]
Therefore the enquiry will be into
whether the plaintiff has provided sufficient particularity in its
particulars of claim to enable
the defendant to reply thereto without
being embarrassed and prejudiced.
[29]
It has also been stated that whether a
pleading contained sufficient particularity was an issue of fact. A
pleading contained sufficient
particularity if it identified and
defined the issues in such a way that it enabled the opposite party
to know what they were.
[4]
[30]
It has also been said, and this is also
what the plaintiff argues, that Rule 30 may be invoked to strike out
the claim pleaded when
the individual averments do not contain
sufficient particularity and it is not necessary that the failure to
plead material facts
goes to the root of the cause of
action.
[5]
_ .
[31]
With that in mind I now proceed to
analyse the grounds of exception as pleaded.
First Ground of Complaint
[32]
The plaintiff pleads a part written part
verbal agreement and attaches two annexures as constituting the
written part thereof. Annexures
to pleadings constitute pleadings
themselves.
[33]
Whilst the plaintiff pleads that the
defendant failed to deliver the drill on or before a date (8 March
2013) which appears in the
plaintiff’s order of certain
equipment, another date appears (15 April 2013) on the invoice issued
by the defendant to the
plaintiff as a date of delivery. The
defendant complains that this inconsistency has caused it
embarrassment and would be prejudiced
if forced to plead thereto.
[34]
The plaintiff correctly argues that the
defendant cannot assume which of the two documents constitutes an
offer and which constitutes
an acceptance. The defendant is similarly
entitled to know which of the two dates the plaintiff contends is the
date upon which
it relies in view of the inconsistency contained in
the pleadings. The plaintiff, must in view of this inconsistency,
make a selection.
The defendant is not expected to plead what it
believes the plaintiff intends.
[35]
The defendant submits further that the
inconsistencies should be explained so that the defendant knows why
the plaintiff relies
on the date of 8 March 2013 and not 15 April
2013.
[36]
In argument it was submitted on behalf
of the plaintiff that such explanations are a matter for evidence as
a part-written and part-verbal
agreement has been pleaded. The
plaintiff has failed to plead any part of the verbal agreement. As a
result of being left totally
in the dark regarding the verbal part of
the agreement and the terms and conditions thereof, the defendant is
left to anticipate
in its plea what the plaintiff’s case would
be, especially regarding why the plaintiff contends that the breach
is failure
to deliver on 8 March 2013.
[37]
The shortcomings in pleading the
necessary degree of particularity in this regard is material. The
defendant would be prejudiced
were it to plead in these
circumstances.
The Second Ground of Complaint
[38]
The plaintiff attaches annexure “C”,
dated 18 March 2013, and pleads that the defendant repudiated the
agreement by
informing the plaintiff in
terms of this annexure that “the
defendant would not be able to complete the drill for the purchase
price. ”
The defendant complains that since the
allegations attributed to annexure “C” do not appear
therefrom, the particulars
of claim do not contain any averments or
make any allegations that support the conclusion that annexure “C”
was a repudiation
of the agreement.
The plaintiff submitted in this regard that the
defendant can simply deny repudiation and that the parts of annexure
“C”
upon which the plaintiff relies would be a matter for
ventilation in the trial. This submission was made in respect of the
other
grounds of complaint.
As stated above, annexures form part of the
pleadings. The purpose of pleadings is to ensure that a party knows
what case it has
to meet. In the face of a document that a party
relies upon where on a passing glance the allegation upon which a
cause of action
is founded does not appear, it is incumbent on the
plaintiff to refer to the portion of the document that it relies upon
for such
allegation.
This pleading is vague and embarrassing, and
the defendant would be prejudiced where it to be compelled to plead
thereto. It is
not enough to say that a bare denial would be adequate
because the meaning or meanings of the document would be traversed on
trial.
The defendant should not be put to the task of anticipating
the plaintiff’s evidence and thereby prepare on aspects that
would not have been necessary. As was stated in the Trope case:
"Thus it may be possible to plead to
particulars of claim which can be read in any one of a number of ways
by simply denying
the allegations made; likewise to a pleading which
leaves one guessing as to its actual meaning. Yet there can be no
doubt that
such a pleading is excipiable as being vague and
embarrassing - see Parow Lands (Pty) Ltd v Schneider 1952 (1) S/A 150
fSH/zAJ
at 152F-G and the authorities there cited.
It follows that averments in the pleading which
are contradictory and which are not pleaded in the alternative are
patently vague
and embarrassing; one can but be left guessing as to
the actual meaning (if any) conveyed by the pleading(My emphasis)
Third Ground of Complaint
[43]
The plaintiff pleads that as a result of
the defendant’s breach or repudiation of the agreement the
plaintiff suffered damages,
including damages in the amount of R500
000,00 incurred as a result of the plaintiff having to lease an
alternative drill, and
R200 000,00 incurred as a result of paying
wages and salaries as a result of “standing time.”
[44]
The defendant complains that the
plaintiff ought to have specified with some particularity as to how
the globular amounts of R500
000,00 and R200 000,00 are made up.
[45]
The plaintiff argued that this is a
matter for evidence. It submitted that the plaintiffs quantum of its
damages have been more
than adequately particularised and that it is
self-evident that the plaintiff had to lease a drill and to pay wages
and salaries
expended as a result of standing time.
[46]
Rule 18(10) requires a plaintiff suing
for damages to set such damages out in a manner “as will
enable, the defendant reasonably
to assess the quantum thereof."
[47]
The setting out of these two globular
amounts does not meet the requirements of sub-rule (10). For example,
the plaintiff does not
state for what period these damages were
incurred or why they had to be incurred. Although the inadequacies
complained of in this
regard could be remedied by resort to Rule 30
as provided for in Rule 18(12), this ground of complaint is best
dealt with together
with the other two.
[48]
The plaintiff submitted that on the
authority of Doyle v Sentraboer (Corporative) Ltd
[6]
the requirements of Rule 18(10) have to be read in similar tone to
the requirements of Rule 18(4) which requires a “clear
and
concise statement of the material facts." In Grindrod (Pty) Ltd
v Delport and Others
[7]
Blieden J in reference to the Doyle case stated the following:
“However, in as much as the learned judge appears to have
coupled the provisions of Rule 18(4) with those of Rule 18(10), I
must respectfully disagree with him. It seems to me that these
two
sub-rules have entirely different functions and are not in any way
related.
Rule 18(4) relates to the pleading of facts
which make up either a claim, defence or answer. Here the requirement
is that such facts
be pleaded with “sufficient particularity to
enable the opposite party to reply thereto" (italics original)
[49]
It is clear therefore that Rule 18(10)
requires particularity for the damages claimed as opposed to the
particularity of the material
facts required for pleading a cause of
action, defence or answer to any pleading.
[50]
Accordingly, I find that the plaintiff
has failed to provide the particularity as required by Rule 18(10).
[51]
The plaintiff submitted also that
on the authority of Absa Bank Ltd v Borksburg Transitional Local
Council
[8]
“in light of the relationship between the parties, the
defendant cannot be disadvantaged or prejudiced by the plaintiff’s
pleadings."
[52]
In the case of Deane v Deane
[9]
it was said that:
“It may well be that in the present case
there are circumstances in the light of which the allegations in the
declaration
are not sufficiently precise. But the court knows nothing
of those circumstances because they do not appear from the
declaration
itself. There is this fundamental difference between a
question of insufficient particularity raised on exception in such a
question
raised on an application to court for particulars that in
the former case the party aggrieved must make out a case of
embarrassment
by reference to the pleadings alone, whereas in the
latter case he may allege in his affidavit this special
circumstances, outside
the pleadings, which cause him embarrassment.
If the present defendant is truly embarrassed he has his remedy in an
application
to the court for an order on plaintiff to give further
particulars. Such application would have to be supported by an
affidavit
setting out the special circumstances in the light of which
the allegations in the declaration are insufficient.” (My
emphasis)
Although this case was before the abolishment
of the right to request further particulars for the purpose of
pleading from 1 January
1988, this statement is an answer to the
plaintiff’s contention that because of the relationship between
the parties the
defendant cannot be disadvantaged or prejudiced by
the plaintiff’s pleadings. It seems to me that reliance on such
a relationship
which has not been pleaded, will require the plaintiff
to ask the court to go outside of the bounds of the pleadings by
filing
an affidavit that, in addition to the pleadings, sets out such
a special relationship. This has not been done and I cannot have
regard to any special relationship that may exist between the
parties.
54.1.
The exception is upheld;
54.2.
The particulars of claim are struck out;
54.3.
The plaintiff is granted leave to amend
its particulars of claim within 20 days of date of delivery of this
order.
54.4.
The plaintiff is ordered to pay the
costs of this application.
SIGNED AT PRETORIA ON THIS 12
th
DAY
OF
MARCH 2014
Malindi, AJ
Acting Judge of the High Court of South
Africa
Appearances:
For Applicant/Defendant: Adv T Dalrymple
Instructed by: Read Hope Phillips
For Respondent/Plaintiff: Adv R.
Raubenheimer Instructed by:
Magda Kets Incorporated
[1]
1992
(3) SA 208 (T)
[2]
At210 G -211 E
[3]
Venter and Others NNO
v
Barritt; Venter and Others NNO v
Wolfberg; Arch Investments 2 (Pty) Ltd 2008 (4) SA 639 (C)
[4]
Nasionale Aartappel Kodperasie Bpk v PriceWaterouseCoopers
2001 (2)
SA 790
(T) at 7991-}
s
See Harms: Civil procedure in the Supreme Court (issue 49)
LexisNexis at B-l 68
[6]
1993 C3] SA 176 (SE)
[7]
1997 (1) SA 342
at 346 F
[8]
1997 (2) SA415(W)
[9]
1955 (3) SA 86
(N) at 87E-G