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[2014] ZAGPPHC 446
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Tusk Construction Support Services (Pty) Ltd v Stopforth and Others (70737/2012) [2014] ZAGPPHC 446 (20 March 2014)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(REPUBLIC
OF SOUTH AFRICA)
Case
number: 70737/2012
DATE:
20/3/2014
In
the matter between:
TUSK
CONSTRUCTION SUPPORT SERVICES
(PTY)
LTD (Registration No:
1999/01303/07)
............................................................................
Plaintiff
and
JOHN
REGINALD
STOPFORTH
..................................................................................
First
Defendant
SIMON
SIPHO
MKHONDO
.....................................................................................
Second Defendant
CORNELIUS
WILHEIM
HUMAN
..............................................................................
Third
Defendant
THATO
MILDRED
MOFOKENG
.............................................................................
Fourth
Defendant
HELEENDREN
THAVER
...............................................................................................
Fifth
Defendant
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
[1]
On 06 December 2012, Plaintiff issued simple summons against the
defendants for payment of an amount of R508 480. 00 (Five hundred
and
eight thousand rand and eighty) plus interest
a temporae morae
at 15,5% per annum on the outstanding balance until the full debt is
extinguished and costs.
[2]
On 02 August 2012, plaintiff filed a declaration and attached certain
annexures that I will refer to later in this judgment.
[3]
This judgment concerns an exception taken by the defendants to
plaintiff’s declaration. The parties will be referred to
as
they were in the main action.
[4]
The plaintiff’s claim against the defendants arises from
suretyship agreements in terms of which the latter bound themselves
as sureties and co-principal debtors to plaintiff for the due and
punctual performance by Mkwananzi Construction (Pty) Ltd ( “the
principal debtor) of all debts and obligations in terms of a
Construction and Support Services Agreement (“Services
Agreement”)
entered into between plaintiff and Mkwanazi.
[5]
Save for the personal details of the defendants, the deeds of
sureties signed by all defendants are identical
[1]
. I will only refer to the one signed by the first defendant and the
corresponding allegations in the declaration.
[6]
The fact that the Service and deed of suretyship agreements were
entered into is common cause between the parties. Though not
expressly stated, it appears from a reading of the exception that the
dispute is around proof of indebtedness of the principal
debtor in
terms of which the sureties’ liabilities kick in.
The
relevant part of the declaration for purposes of this judgment to
which the exception is directed is paragraphs 14 and 15 that
read as
follows:
“
14.
On or about 5 December 2011 the Principal Debtor owed Plaintiff an
amount of R508 480.00 as appears from the certificate
signed by
Plaintiff’s employee a copy of which is attached as Annexure
‘D’
15.
In the premises and in terms of the suretyship agreement, First
defendant is liable jointly and severally with the Principal
Debtor
for payment of the amount of R508, 480.00”
[7]
Although not part of the documents placed before me, it is common
cause that the defendants duly caused notices to remove the
cause of
complaint to be served on the plaintiff before filing the exception.
THE
EXCEPTION
[8]
The basis of the exception is that the plaintiff’s declaration
is vague and embarrassing. In Paragraph 3 of the Notice
of Exception,
defendants stated the following:
“
3.
In paragraph 14 of the declaration, the Plaintiff alleges that on or
about 15 December 2011 the principal debtor owed Plaintiff
an amount
of R508 480,00 as appears from the certificates signed by the
Plaintiff’s employee, a copy whereof is annexed as
Annexure
“D”.
3.1
It cannot be determined from Plaintiff’s declaration on which
terms of the construction support services agreement the
Plaintiff
relies, if proved, to show that the Plaintiff has an enforceable
claim against the principal debtor;
3.2
From the Plaintiff’s declaration it cannot be determined how
the amount of R508 480,00 , as certified by the Plaintiff’s
employees, is calculated.
3.3
From the Plaintiff’s declaration it cannot be determined
whether or not the Plaintiff fulfilled its contractual obligations
in
terms of the construction support services agreement and that the
principal debtor is indebted to the Plaintiff in the amount
of R508
480,00.”
DEFENDANTS’
SUBMISSIONS
[9]
Mr. Schoeman, on behalf of defendants made the following written and
oral submissions:
(a)
There is no indication as to how the amount reflected in the
certificate of balance was calculated,
(b)
Defendants as sureties are entitled to know whether plaintiff and
principal debtor have fulfilled their respective duties and
obligations,
(c)
The defences available to the principal debtor are also available to
the sureties,
(d)
In terms of Clause 1.2 of the Service Agreement
[2]
,
“
administration
and support services”
is defined as “
the
services to be provided by TUSK to the Applicant in terms of this
agreement and set out in clause 5 below”,
(e)
The duties of plaintiff have been enumerated in clause 5 of the
Service Agreement. The defendants do not know which of those
duties
plaintiff performed that entitled it to payment and issuance of
the certificate of balance,
(f)
In terms of clause 3 titled APPOINTMENT, defendants appointed
plaintiff to provide administration and support services listed
in
clause 5 and certain supplementary services ,
(g)
Plaintiff should have pleaded the duties it has fulfilled in
accordance with the certificate of balance issued,
(h)
Plaintiff should have pleaded the nature of services rendered and the
period thereof in order to enable defendants have
ascertain whether the claim has prescribed or not,
(i)
Plaintiff should not simply rely on the certificate of balance as it
has done in paragraph 12.5 of the declaration wherein the
following
is stated :
“
Any
amount owing to Plaintiff by the Principal Debtor or by the
First Defendant at any time, the fact that such amount is
due and
payable and the relevant rate and dates for working out of interest
will be shown (and unless the First Defendant proves
it wrong, will
be accepted as being correct) by a certificate signed by any
employee of Plaintiff. The appointment of the
person signing the
certificate will not have to be proved; “,.
(j)
the declaration as it is can be read in multiple ways., and it
creates confusion. This prejudices the defendants in pleading.
Its
terms are unclear, indistinct and vague. It is not clear whether the
debtor has defaulted or not. If it has not, the claim
is premature.
(k)
the certificate of balance is prima facie proof of outstanding
amount, it does not prove Debtor’s default. It is only
valid if
plaintiff has complied with its obligations
[10]
Mr Schoeman concluded by submitting in his written submissions that :
“…
Respondent failed to plead the facta probanda
necessary to establish a cause of action against excipients
alternatively
that excipients are correct in their assertion
that the pleading is vague and embarrassing and that they are
prejudiced in pleading
to the Declaration.”
DEFENDANT’S
SUBMISSIONS
[11]
As a starting point, Mr. Stoop referred the court to the matter of
Jowell v Brnwell-Jones 199891) SA 836 (W
) at 899 -903
and submitted that an exception on basis that pleadings are vague and
embarrassing:
(a)
must go to the root of the action; and
(b)
the desired information can be obtained by a request for further
particulars.
[12]
He further submitted, with reference to the case of
Bank of
Lisbon International Ltd v Venter
1990 (4) SA 463
(A
) at 481H
– 482C that plaintiff’s cause of action is the
certificate of balance and that;
(a)
reliance on the certificate of balance clause in the suretyship
agreement establishes plaintiff’s cause of action,
(b)
liability of the sureties is founded in the certificate of balance
which establishes prima facie proof and;
(c)
unless evidence to the contrary is produced, it hardens into concrete
proof.
[12.1]
He however, hastened to add that he was aware of a subsequent
decision in the matter of
Ex Parte Minister of Justice in re;
Nedbank Ltd v Abstein Distributors (Pty) Ltd and Others and Donelly v
Barclays National Bank
Ltd
1995 93) SA 1
(A)
where the
certificate of balance was declared to be contrary to public
policy and void.
Mr
Stoop submitted that the Bank of Lisbon case is binding on this
court.
[13]
It was further submitted on behalf of the plaintiff that:
(a)
on proper construction, clause 21
[3]
of the suretyship agreement means that between plaintiff and the
principal debtor proof has been submitted on how the amount owing
has
been worked out. The clause cannot be used against the Principal
Debtor,
(b)
It was not necessary for a pleader to plead reciprocity of
obligations
[4]
. All he has to do
is to set out the cause of action. He cannot plug out every possible
defence.
[14]
Mr Stoop submitted further that the first ground of the
exception (paragraph 3.1) cannot stand because plaintiff relies
on
suretyship agreements. According to him, paragraph 7
[5]
of the declaration is actually over pleading because even if it is
taken out, the declaration would still stand. Therefore paragraph
10
[6]
is properly pleaded.
[15]
It was also submitted that the second ground of exception (paragraph
3.2 ) has no merit because the agreement states that the
certificate
of balance will, unless proven wrong be sufficient proof.
Plaintiff
does not have to plead how the amount was compounded. Defendants
should request further particulars if they so feel
[7]
.
The
third ground of exception overlaps with the others.
[16]
In reply,
Mr. Schoeman submitted that he does not accept that
the certificate of balance is a cause of action. According to him,
only when
the debt against the Principal Debtor is due and payable,
then claim can be enforceable against a surety.
THE
CERTIFICATE OF BALANCE
[17]
Annexure ‘D’ to plaintiff’s declaration , dated
5 December 2012 reads as follows:
“
CERTIFICATE OF
BALANCE”
I,
the undersigned, BAREND BESTER ROUX, in my capacity as Legal Advisor
of TUSK CONSTRUCTION SUPPORT SERVICES (PTY) LTD (Registration
No.
1999/001303/07), (hereinafter “TUSK”) hereby certify that
at date 5 December 2012 the amount of R508, 480 (Five
Hundred and
Eight Thousand Four Hundred and Eighty Rand) in respect of
administration and support services was owing to TUSK by
MKWANAZI
CONSTRUCTION (PTY) LTD (Registration number 1996/005416/07)”
[18]
The signatory identified himself as the “
Legal Advisor “
of Tusk Construction Support Services (Pty) Ltd.
VAGUE
AND EMBARASSING
[19]
Defendants’ complaint is that plaintiff has failed to plead
sufficient particulars with regard to performance of its
obligations
that entitled it to claim payment of the amount that is allegedly in
arrears.
[20]
Rule
18(4) of the Uniform Rules of Court provides as follows:
"Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim,
defence or answer
to any pleading, as the case may be, with sufficient particularity
[8]
to enable the opposite party to reply thereto."
[21]
Ambiguity on its own is not sufficient. There must be evidence that
the opposing party will be seriously prejudiced
if the relevant
portions in the declaration are allowed to stand. The vagueness must
relate to the cause of action
[9]
[22]
In the Trope case
[10]
,
Macreath J considered the meaning of “vague and embarrassing”
in the context of exceptions and the nature of the enquiry
that the
court should undertake.
“
No
doubt, the absence of the opportunity to clarify an ambiguity or cure
an apparent inconsistency, by way of further particulars,
may
encourage greater particularity in the initial pleading.
The
ultimate test, however, must in my view still be whether the pleading
complies with the general rule enunciated in Rule 18(4)
and the
principles laid down in our existing case law.
An
exception to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is whether
the pleading lacks particularity to the extent that it is vague. The
second is whether the vagueness causes embarrassment of such
a nature
that the Excipient is prejudiced (Quinlan v MacGregor
1960 (4) SA 383
(D) at 393E-H). As to whether there is prejudice, the ability of the
Excipient to produce an exception-proof plea is not the only,
nor
indeed the most important, test - see the remarks of Conradie J in
Levitan v Newhaven Holiday Enterprises CC
1991 (2) SA 297
(C) at 298G-H. If that were the only test, the object of pleadings to
enable parties to come to trial prepared to meet each other's
case
and not be taken by surprise may well be defeated.
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) SA 150
(SWA) 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.”
[23]
In my view, the wording of the certificate of balance clause in
the Ex parte Minister of Justice case and the one under
consideration
are distinguishable from each other.
The
issue in the latter was that the offending clause indicated
that the certificate of balance was “
conclusive proof of
indebtedness”
.
As
stated above, the relevant clause in this matter is worded in such a
way that the sureties have an opportunity to admit or deny
the
correctness of the certificate of balance.
[24]
I agree with counsel for the plaintiff that it is not necessary to
plead the particulars that defendants allege renders the
declaration
vague and embarrassing.
The
particulars can be obtained by way of request for further particulars
for trial purposes or even in terms of the rules relating
to
discovery.
[25]
Defendants in my view will not be prejudiced by lack of particularity
relating to computation of the amount or whether there
has been
compliance with clauses relating to performance of the parties’
respective duties and obligations.
[26]
The case that defendants have to meet is clear from the certificate
of balance read with the relevant paragraphs in the declaration.
Whether
or not the Principal Debtor is in breach and the extent thereof is a
factual enquiry and a matter of evidence.
[26]
In the result, I make the following order:
The
exception is dismissed with costs.
MAKHUBELE
AJ
Acting
Judge of the High Court
APPEARANCES:
PLAINTIFF:
Advocate BC Stoop
Instructed
by Coetzer & Partners
Arcadia,
Pretoria.
Ref:
V Roux/jm/KT0063
Tel:
(012) 343 2560
DEFENDANTS:
Advocate R Schoeman
Instructed
by Jansen Van Rensburg Attorneys
Highveld,
Centurion.
Ref:
LR0173/L J v /Rensburg
Tel:
(012) 940 5826
[1]
Annexures B, E,F, G and H respectively
[2]
Annexure A to plaintiff’s declaration
[3]
paragraph 12.5 of the declaration (proof of indebtedness by
Certificate of balance)
[4]
He referred to the matter of Prince v University of Pretoria 1980
(2) SA 171 (TPD)
[5]
It reads as follows: “
On
or about 26 August 2011 and at or near Centurion, Plaintiff
duly represented by Mr HJ de Villiers concluded a written
Construction Support Services Agreement with an entity known as
Mkwanazi Construction (Pty) Ltd (hereinafter ‘the Principal
Debtor’). At all relevant times, the Principal Debtor was duly
represented by the First Defendant. A copy of the Construction
Support Services Agreement is attached as Annexure ‘A’.”
[6]
It reads as follows: “
On
or about 26 August 2011 and at or near Centurion, the First
Defendant acting personally signed a written suretyship agreement
in
terms whereof the First Defendant bound himself as surety and
co-principal debtor to Plaintiff for he due and punctual performance
by the Principal Debtor of all debts and obligations of any nature
(without limitation of the amount) arising from any cause
at all
which the Principal Debtor owe or may in future owe to Plaintiff. A
copy of the suretyship agreement is attached as Annexure
‘B’
and the contents thereof must be read herein as if specifically
pleaded.”
[7]
Jowell case.
[8]
Trope
and Others v South African Reserve Bank (641/91)
[1993] ZASCA 54
;
1993 (3) SA 264
(AD);
[1993] 2 All SA 278
(A) (31 March 1993)
[9]
Carelsen v Fairbridge , Ardene & Lawton
1918 TPD 306
at 309,
approved in amongst other cases; Liquidators Wapejo Shipping Co. Ltd
v Lurie Bros
1924 AD 69
at 74
[10]
at t 211