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[2014] ZAGPPHC 144
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City Square Trading 512 (Pty) Ltd v Slip Knot Investments 777 (Pty) Ltd and Another (38776/12) [2014] ZAGPPHC 144 (17 March 2014)
REPUBLIC OF SOUTH
AFRICA
NORTH GAUTENG
HIGH COURT
PRETORIA
Case
no:38776/12
DATE:
17 MARCH 2014
In the matter
between:
CITY SQUARE
TRADING 512 (PTY)
LTD
............................................
PLAINTIFF
AND
SLIP KNOT
INVESTMENTS 777 (PTY) LTD
........................
FIRST
DEFENDANT
MARTYCELL
PROPERTIES
...............................................
SECOND
DEFENDANT
JUDGMENT
BAQWA J
[1] This is an
application for an order striking out plaintiff’s particulars
of claim and dismissing the claims set out therein
with costs. The
application is founded in terms of Rule 23 and 30 of the Rules of
Court.
[2] The application
was launched by the first defendant, a company operating under the
name and style of Slip Knot Investments 777
(Pty) Ltd against the
plaintiff which is City Square Trading 512 Pty (Ltd).
[3] The cause of
action is based on lease agreement which was entered into between the
plaintiff and the Department of Public Transport,
Roads and Works of
the Gauteng Provincial Government on 27 August 2008. The lease was in
respect of premises known as Yorkor Park,
Pretoria East situated at
Erf 331 86 Water Meyer Street, Val de Grace, Pretoria.
[4] The exception
relates to a paragraphs 12 and 22 of the plaintiff’s
particulars of claim. Paragraph 12 reads as follows:
‘’It was
at all material times envisaged by and between the plaintiff and the
first defendant that the contract of lease
concluded or to be
concluded between the plaintiff and the lessee would be assigned to
the first defendant and the amount of R8,000,000.00
payable by the
first defendant to the plaintiff in terms of the agreement was in ….
Profit (or commission) payable to the
plaintiff for the successful
conclusion of the lease agreement with the lessee upon fulfilment of
the suspensive conditions set
out in paragraph 8.2.1.3 supra and was
not dependent upon the first defendant acquiring the 100%
shareholding in the special purpose
shelf company from the plaintiff.
The amount of R8,000,000.00 was calculated with reference to the
rental payable per square meter
of the leased premises X12 divided by
a cap rate of 12.39% of the lease value as projected over the lease
period less expenses
relating to the tenant installation. The amount
of R8,000,000.00 was thus directly related to the leased space or
area of the leased
premises.’’
[5] It is common
cause that the suspensive conditions were fulfilled and that the
plaintiff received the amount of R4,000,000.00,
being its share of
the purchase consideration of the shares payable by the first
defendant in terms of annexure ‘’B’’.
[6] First defendant
has taken an exception to the averment in paragraph 12 wherein
plaintiff alleges that the aforesaid sum of R8
million was ‘’in
effect profit (or commission).’’ First defendant submits
that it is not clear whether
plaintiff contends for a tacit term of
the agreement or for what purpose the allegations contained in that
paragraph are incorporated
in the particulars of claim.
The law
[7] Davis J in
Glaser v Heller 1940(2) PH F119(C) succinctly summarised the purpose
of an exception when the said ‘’The
true object of an
exception is either, if possible, to settle the case, or at least
part of it, in a cheap and easy fashion, or
to protect oneself
against an embarrassment which is so serious as to merit the costs
even of an exception.’’
[8] Rule 23(1)
provides for a litigant who is embarrassed by the opponent’s
pleading to give the latter an opportunity to
remove the cause of
complaint. As Davis T (Sutton J concurring) put it ‘’In
my view it is the duty of the court, when
an exception is taken to a
pleading, first to see if there is a point of law to be decided which
will dispose of the case in whole
or in part. If there is not, then
it must see if there is an embarrassment which is real and such as
cannot be met by the asking
of particulars, as the result of the
faults in pleading to which exception is taken. And unless there is
such a point of law or
such real embarrassment, then the exception
should be dismissed.’’
[9] It is also
important for an exception to be allowed to prove that the vagueness
and embarrassment alleged by the excipient strikes
at the root of the
cause of action.
[10] Further, an
exception founded upon the contention that a summons discloses no
cause of action is designed to obtain a decision
on a point of law
which will dispose of the case in whole or in part, and avoid the
leading of unnecessary evidence at the trial.
See Alphina
Investments Ltd v Blacher
2008 (5) SA 479
(C) at 483 B.
[11] An exception
that a pleading is vague and embarrassing is intended to cover the
case where, although a cause of action appears
in the summons, there
is some defect or incompleteness in the manner in which it is set
out, which results in embarrassment to
the defendant. An exception
that a pleading is vague and embarrassing strikes at the formulation
of the cause of action and not
its legal validity.
See Trope v South
African Reserve Bank 1993(3) SA 164(a) AT 269 I
[12] When plaintiff
refers to what was ‘’envisaged’’ by the
parties and which is not contained in the contract,
plaintiff is
alluding to a tacit term. It is trite that a party alleging a
contract must allege and prove the terms (express or
tacit) of the
agreement on which he or she seeks to rely.
[13] When plaintiff
refers to payment of ‘’a profit or commission’’
plaintiff is putting a construction
on the contract annexure ‘’B’’
that differs from the document’s prima facie meaning and in
those
circumstances, plaintiff has to plead the circumstances relied
on as far as this construction.
See Societe
Commerciele de Moteurs v Ackerman 1981(3) SA 422(A)
[14] It is trite
that a tacit term cannot be imported into a contract if it is in
conflict with an express and written terms of
the contract.
See Christie; Law of
Contract in South Africa at p174 and the authorities at footnotes 79,
80, 81 and SA Mutual Aid Society v Capetown
Chamber of Commerce
1962(1) SA 598(A) at 615 D
[15] It is also
correct as submitted on behalf of the first defendant that terms
which in terms of the parole evidence rule cannot
be proved may not
be pleaded unless rectification of the contract is sought. Ex facie
the summons the claim is not one for rectification
and the contents
fall foul of the parole evidence rule.
I accordingly find
that the words ‘’in effect profit or commission’’
in paragraph 12 are in conflict with
the express terms of the written
agreement (annexure B) and evidence relevant thereto would be
inadmissible.
Disallowing the
exception would accordingly compel first defendant to plead to a
summons that is defective or incomplete in the
manner that it is set
out. That cannot but result in embarrassment and prejudice to the
first defendant.
[16] Regarding the
averment in paragraph 22.2 of the particulars of claim plaintiff
contends as an alternative to paragraph 22.1
for an ‘’express
oral alternatively tacit agreement to the effect that the plaintiff
would be entitled to payment of
additional profit….. in the
event of an increase in the leased space in terms of the contract of
lease.’’
[17] Rule 18(6)
provides that a party who relies on a contract in his pleadings shall
state whether the contract is written or oral
and when, where and by
whom it was concluded.
[18] The allegations
contained in clause 22.2 of the particulars of claim do not comply
with the provisions of Rule 18(6) and the
pleading is accordingly
vague and embarrassing alternatively an irregular proceeding.
[19] In the
circumstances I have come to the conclusion that the particulars of
claim do not contain averments which properly sustain
the plaintiff’s
claim and that the first defendant is prejudiced.
[20] In the result
the following order is made:
20.1. First
defendant’s exception is upheld and plaintiff is granted an
opportunity to file an amended pleading within fifteen
(15) days of
this order failing which the plaintiff’s particulars of claims
are struck out.
20.2. Plaintiff to
pay the costs of this application.
It is so ordered.
S.A.M BAQWA
(JUDGE OF THE
HIGH COURT)
Counsel for the
plaintiff: L.M Maite
Instructed
by: Ruan Rabie Attorneys
Counsel for the
respondents: E Ford
Instructed
by: Bax Kaplan Attorneys