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[2014] ZAGPPHC 480
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Petrosite (Pty) Ltd v Segage and Another (13765/13) [2014] ZAGPPHC 480 (31 March 2014)

IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
(
REPUBLIC
OF SOUTH AFRICA
)
CASE NO:
13765/13
DATE:
31/3/2014
In
the matter between:
PETROSITE
(PTY)
LTD
.............................................................................................................
Plaintiff
and
HAPPY
EZEKIEL
SEGAGE
............................................................................................
1
st
Defendant
GERDA
KELEBOGILE
SEGAGE
...................................................................................
2
nd
Defendant
JUDGMENT
MAKHUBELE
AJ
INTRODUCTION
[1]
On 05 March 2013, Plaintiff issued summons against the defendants for
payment of an amount of R3,526,523.60 (Three million five
hundred and
twenty six thousand five hundred and twenty three rand and sixty
cents)) plus interest
at
the
prime rate and costs on the attorney and own client scale.
[2]
The plaintiff’s claim against the defendants arises from a
written agreement in terms of which the latter acknowledged

their indebtedness to the plaintiff and bound themselves and their
joint estate jointly and severally liable to repay to the plaintiff

an amount of R2 626 316.80 (Two million six hiundred and twenty six
thousand three hundred and sixteen rand and eighty cents),
being
money paid and received for both their direct business and personal
benefit paid into an Absa banking account held by Shell
South Africa
Marketing (Pty) Limited on 29 October 2009.
[3]
In paragraph 7 of the particulars of claim, plaintiff alleged that
the defendants failed to repay the total amount or any amount
at all
. The amount claimed represent the total outstanding balance as at 30
April 2010 in terms of the Certificate of Balance
signed by the
plaintiff’s director.
[4]
Defendants filed a plea and two counter-claims on 27 May 2013. They
raised the following special pleas that I will briefly mention

because they are not relevant for present purposes.
(a)
The acknowledgement of debt is an  ancillary to  a
management agreement signed by the parties. First defendant is
owner
of Jesmic garage. Jesmic garage is the recepient of the loan and as
such it should have  been joined in the proceedings;
(b)
the defendants have consented to jurisdicton of the Magistrates court
in the acknowledgement of debt, as such, the High Court
has no
jurisdiction and
(c)
The claim is against defendants and their joint estate, however, by
its own admission, plaintiff has paid the money to defendant
and
Jesmic garage which has not been joined in the action.
[5]
On 08 July 2013 plaintiff gave defendants notice in terms of Rule 23
and 30 of its intention to except to the plea and counter
claims on
the basis that it lacks averments necessay to sustain a cause of
action , altenatively that it is vague and embarasing.
[6]
On 23 July 2013, Defendants filed a notice of intention to amend its
plea and counter claim . On 13 August 2013, Plaintiff filed
a notice
of objection to the intended amendment. Plaintiff also filed a
notice of exception. On the same day. There was no
application to
amend the plea before me. Ms Williams tried to persuade me to hear
her out in this regard, an invitation I duly
declined because in my
view, it would have been prejudicial to the plantiff. An application
for amendment is accompanied by an
affidavit explaining the resons
why the amendment is sought. The plaintiffs would have been entitled
to answer thereto.
THE
EXCEPTION
[7]
Plaintiff has raised two complaints against the defendants’
plea and counterclaims.
[8]
The first complaint relates to the the first counterclaim
[1]
in terms of which the defendants’ claim is that the plaintiff
“
1….….……render
a full account supported by vouchers of both the Jesmic and Carousel
filling stations
as well as for immpovable properties ceded to them
2.
debate of the said accounts
3.
payment and or set-off in favour of the Defendants of whatever
amounts appear to be due to the Defendant upon debate of the account”
[9]
The relief claimed in the first counte-claim is preceded by
paragraphs 50 .1 to 50.10, which are a word by word reproduction
of
the terms of the Management Agreement
[2]
allegedly
entered between plaintiff and the defendants.
[10]
The nub of the exception in this regard is in paragraphs 5 and 6 of
the notice exception and reads as follows:
“
5.
The defendants, however fails to state whether as at the time of
takeover, were there any amounts and how much of it, owing and
due to
the defendants, the plaintiff received, which ought to be set off
against the capital borrowed to them.
6.
The Defendants further failed to set out a legal or factual basis for
their entitlement to the accounting, debatement and payment
or
set-off against the loaned amount, which they seek. The counter-claim
fails to set out averments necessary to sustain a cause
of action and
is vague and embarassing. The counter-claim also fails to comply with
the requirements of the Uniform Rules of Court
and thus  also
renders them an irregular step”
[11]
The second complaint is directed at  the second claim in
reconvention that reads as follows:
“
AD
DEFENDANTS 2
ND
CLAIM IN RECONVENTION
60.
The Defendants repeat paragraphs 25 to 28 of its claim in
reconvention
61.
The defendants repeat paragraph 5 of the Plaintiff’s claim in
convention.
62. The two
agreements signed by the parties are mutually destructive, in so far
as the management agreement eventually sets off
the debt and
simultaneously the acknowledgement of debt increases the debt.
63.
It is trite that a contract is interpreted against the party who
drafted and or caused it to be drafted.
64.
It is objectively impossible for the Defendants to perform in terms
of both agreements entered into.
65.
None-the-less the Defendants performed in terms of the management
agreement in a bona fide effort to extinguish the debt owed
to the
plaintiff.
66.
The defendants plead further that both contracts cannot be enforced
due to their coontradictory effects.
67.
Wherefore the defendant prays that:
1.
That both the acknowledgement of debt as well as the Management
agreement be set aside.
2. The Plaintiff
renders a fulll account supported by vouchers of both the Jesmic and
Caousel filing stations as well as for the
immpovable properties
ceded to them.
3.
Debate of the said accounts.
4.
Payment and or set-off in favour of the Defendants of whatever
amounts appear to be due to the Defendant upon debate of the
account”.
12.
Paragraphs 25 to 28 of the defendants’ claim in reconvention
read as follows:
“
25.
AD PARAGRAPH 5.1 THEREOF
The
contents of this paragraph are dnied, the Defendant pleads further
that in terms of the management agreement, particularly paragraph
1.2
thereof, the 1
st
Defendant, as the OWNER AND MANAGING MEMBER of Jesmic Motors CC, has
in his personal capacity received a loan amount of R2. 626
316,
80 from Petrosite (the plaintiff).
26.
AD PARAGRAPH 5.2 THEREOF
The
contents of this paragraph are denied, the Defendants repeat the
allegations made in 5.1 supra.
27.
AD PARAGRAPH 5.3 THEREOF
The
contents of this paragraph are denied.
28.
AD PARAGRAPH 5.4 THEREOF
The
contents of this paragraph are denied.”
13.
Paragraph 5 of Plaintiff’s claim in convention is actually the
terms of the Acknowledgement of debt agreement.
14.
The second complaint reads as follows:
“
7.
The Defendants state in paragraph 60 that they repeat the contents of
paragraphs 25 to 28. The contents of paragraphs 25-28 refers
to
completely different items and as such have no relation and meaning
at all, as such they cannot be a basis for what is sought
to be
relied on by the Defendants in paragraph 60. Accordingly, the
Defendants are requested to particularise what they intend
to refer
to in paragraph 60.
8.
The Defendants in paragraph 61 state that they repeat the contents of
paragraph 5 of the Plaintiff’s claim in reconvention.
They
further add in paragraph 62 that the two referred agreements are
mutually destructive or impossible to perform by the Defendants.
The
Defendants have failed, as they are required in terms of the Rules,
to specify all such particulars for which they allege.
9.
As a result the Defendans Plea and Counter-claim is vague and
embarrassing and fails to set out particulars to sustain a cause
of
action and a defence. Further, the Plea and Counter-claim fails to
comply with the requirements of rule 18 of the uniform rules
of court
and thus renders them as an irregular step”
SUBMISSIONS
Plaintiff
[15]
In his written and oral argument, Mr. Nguntshane highlighted the
following facts ex facie the plea and counter-claims filed
by the
defendants:
(a)
They admitted entering into the acknowledgement of debt agreement,
but deny  its contents, except for their domicilium
citandi et
executandi.
(b)
They claim that plaintiff should render an account, debate such
account, make payment and set-off their debt. However, there
is no
factual or legal basis for this claim.
(c)
They rely on the terms of the acknowledgement of debt as a basis for
their second counter-claim. However, as stated above, save
for
admitting their address, all terms and conditions of this agreement
were expressly denied in the plea in convention.
[16]
Mr. Nguntshane submitted further that plaintiff is not able to file a
plea to the counter-claims because it is unable to see
what case it
is being called upon to meet.
(a)
Before a duty to account arises, there must be an allegation that
plaintiff received certain stock from the defendant. No such

allegations are made.
(b)
Defendants rely on the terms of the Management Agreement as a basis
for their first counter- claim (actually reproduced them
word by
word). However, they do not allege any compliance by palintiff and as
such a breach by plaintiff of any term or condition
in the agreement.
[17]
In paragraph 42 of their plea, Defendants make a bare denial of the
contents of paragraph 7 of the particulars of claim wherein
plaintiff
makes an allegation that they failed to repay the total amoun
in terms of the acknowledgement of debt.  It
is not clear what
the basis of the denial is, whether they have paid or not.
Mr.
Nghuntsane submitted further that the second claim in reconvention is
entirely meaningless . The defendants effectively say
that they have
a claim based on the denials they have made  with regard to the
contents of the acknowledgement of debt agreement.
[18]
He referred the court to authority for the legal principle that an
exception to particulars of claim on the basis that they
are vague
and embarrassin strikes at the root of the cause of action
[3]
.
Furthermore, the grounds that the defendants rely on for their
counter-claim do not support and cannot sustain the cause of action

sought to be advanced.
Defendants
[19]
In her heads of argument, Ms Williams argued that the relationship
between the parties is regulated by the agreements defendants
rely on
in their claim in reconvention.
[20]
In paragraphs 2.1.2.3 and 2.1.2.4 of her  her heads of argument,
she submitted the following:
“
2.1.2.3
The mentioned  assets were immediately ceded to the excipients,
together with the bank account at Standard Bank.
2.1.2.4
The excipients took immediate possession of all the assets including
the following;
a)
SHELL JECMIC SERVICE STATION IN THEMBA
b)
SHELL CAROUSEL IN HAMMANSKRAAL
c)
ERF NO 589 KUDUBE UNIT D, NORTH WEST PROVINCE
d)
ERF NO 590  KUDUBE UNIT D, NORTH WEST PROVINCE
e)
ERF NO 812 KUDUBE UNIT D, NORTH WEST PROVINCE
f) PORTION 50 OF
FARM NO.65 WITGATBOOM, NORTH WEST PROVINCE
g) PORTION 51 OF
FARM NO. 65 WITGATBOOM, NORTH WEST PROVINCE
h)
UNIT 1 AND W1 ANNLIN 763
To
the full excluson of the Respondents with the intent of extinguishing
the oan between the parties.
[21]
In paragraph 22 of her heads of argument, Ms Williams submitted that
“
The second cause of complaint is
based on a typing error, said error was sought to be rectified in the
notice of amendment objected
to by the excipient.”
[22]
When asked by the court why defendants denied the contents of the
acknowledgement agreement which they do not deny entering
into, Ms
Williams  was adamant that defendants were entitled  to
plead the denials . According to her, it was sufficient
because in
the claim in reconvention they have attached the Management
Agreement, which , in her view should be read with the
Acknowledgement of Debt Agreement.
[23]
Ms Williams went on to argue that  clause 1.3 of the Management
Agreement lays the basis for the counterclaim because
it provides
that the profits shall be set off to settle the debt.
[24]
I must say I was much astonished by Ms William’s reasoning and
argument, not only because she was arguing outside her
papers, but
also because of her attitude towards the court.
At
some point Ms Williams told me that she “
insists”
that her submissions were correct. This was in response to questions
being put to her about the rules of pleading.
[25]
I have perused the plea and counter-claims filed by the defendants
(signed by Adv.T. Williams and defendants’ attorney)
several
times, but I could not find any allegation that:
[25.1]
Certain properties belonging to the defendants were ceded to the
plaintiffs with the intetion to settle the debt in the
Acknowledgement of Debt Agreement as Ms Williams claimed in her heads
of argument. She conceded though that these are the averments
that
should have been pleaded.
[25.2]
Any stock was handed to the plaintiff and its values.
[25.3]
Any reason why defendants deny  the contents of the
Acknowledgement of Agreement, that they admit signing.
LEGAL
PRINCIPLES
[26]
In
considering an exception , the court must look at the pleading
excepted to as it stands, no facts outside those stated in the

pleadings can be brought into issue
[4]
.
[27]
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
[5]
to enable the opposite party to reply thereto."
[28]
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
[6]
[29]
In the Trope case
[7]
, 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.”
CONCLUSION
[30]
The defendants have not laid a basis or set out facts to sustain
the relief sought in the first counter-claim, accordingly
, the
exception in the first ground of complaint must succeed.
[31]
Counsel for the defendant has conceded that “
The second
cause of complaint is based on a typing error, said error was sought
to be rectified in the notice of amendment objected
to by the
excipient.”
[31.1]
In my view, it is more than a typing error because allegations are
made that the two agreements entered into between the
parties are
“
mutually destructive in so far as
the management agreement eventually sets off the debt and
simultaneously the  acknowledgement
of debt increases the debt”.
[31.2]
Other than quoting the claused in the management agreement, this is
all that has been pleaded to support the relief of set-off,

debatement and accounting.
[32]
The  exception in the second ground of complaint must
accordingly succeed too.
[33]
Although no exception was specifically  raised against the plea
in convention,   it became clear during argument
that the
denials with regard to the contents of the acknowledgement of debt
agreement lack particularity to enable the plaintiff
to know the
basis of defendants’ defence in this regard.
[34]
The defendants admitted in paragraph 24 of the plea that they entered
into the acknowledgement of debt agreement, however,
in paragraphs 25
to 40 they denied all the material terms of the agreement. In
paragraphs  41 and 42 of the plea, defendants
also made a bare
denial in response to  the allegation that they failed to repay
the loan and were in arrears.
[35]
Accordingly, paragraphs 25 to 42 of the plea lack averments to
sustain a defence .
[36]
Under the circumstances, I
am
satisfied that the exceptions are good and well taken, and I make the
following order;
[36.1]
The exceptions are upheld;
[36.2]
The defendants’s first and second claims in reconvention are
hereby set aside.
[36.3]
Paragraphs 25 - 42 of the defendants plea in convention  are
hereby set aside;
[36.4]
The defendants are granted leave to amend their claims in
reconvention as they may be advised , and their  plea in
convention only to the extent that it has been set aside within 15
days of this order.
[36.5]
The defendants  are ordered to pay costs jointly and severally,
one paying the other to be absolved.
MAKHUBELE
AJ
Acting
Judge of the High Court
APPEARANCES
PLAINTIFF
/ EXCIPIENT
:
ADVOCATE V P NGUTSHANE
Instructed
by: Raborifi Inc. Attorneys
C/o
Rothmann Phahlamohlaka Inc.
Brooklyn,
PRETORIA
Tel:
012 460 0220
Ref:
SJ Rothmann/cvn/RAB3/10
DEFENDANTS:
ADVOCATE TRACEY WILLIAMS
Instructed
by:          Mpoyana
Ledwaba Inc
Nieuw
Muckleneuk, PRETORIA
Tel:
(012) 346 4093/4348
Ref:
MLL/MM/X 1451/06
[1]
Paragraphs
47 – 55 of defendant’s plea
[2]
Annexure
HES 1
[3]
such
as Jowell v Bramwell-Jones and Others 1998(1) SA  836 (W) at
899 F-G and 9021-903D
[4]
Minister
of Safety and Security vs Hamilton
2001
(3) SA 50
(SCA) at 52 G-H.
[5]
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)
[6]
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
[7]
at
t 211