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[2014] ZAGPPHC 151
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Value Cement v Aldes Business Brokers Franchise and Others (29689/2012) [2014] ZAGPPHC 151 (4 April 2014)
IN THE
HIGH COURT OF SOUTH AFRICA
/ES
(
GAUTENG
DIVISION, PRETORIA
)
CASE NO:
29689/2012
DATE: 4 April
2014
REPORTABLE
OF INTEREST TO
OTHER JUDGES
IN THE MATTER BETWEEN
VALUE
CEMENT
.......................................................................
EXCIPIENT/3
RD
DEFENDANT
AND
ALDES BUSINESS BROKERS
FRANCHISE
.............................
1
ST
DEFENDANT/PLAINTIFF
AXAL PROPERTIES 2
CC
..............................................
2
ND
RESPONDENT/1
ST
DEFENDANT
ECKRAAL QUARIES (PTY)
LTD
..................................
3
RD
RESPONDENT/2
ND
DEFENDANT
JUDGMENT
MASETI, AJ
[1] This is an exception in
terms of rule 23(1) by the third defendant against the plaintiff's
particulars of claim on the grounds
that it is vague and embarrassing
alternatively that it does not set out averments necessary to sustain
a cause of action.
The excipient further states that the
particulars of claim are vague to the point that it prejudices the
excipient as the excipient
is unsure what case it has to meet.
[2] During October 2008 the
first and second defendants (as sellers) gave a written mandate to
the plaintiff (as estate agent) to
sell the first and second
defendants' cement operation business.
[3] The plaintiff would be
entitled to commission from the first and second defendants
(as sellers) under circumstances where
the plaintiff would
indtroduce a purchaser to the first and second defendants resulting
in a valid contract of sale being concluded
for the purchase of the
cement operation business.
[4] The plaintiff alleges
compliance with its obligations in terms of the written mandate in
that:
4.1
the plaintiff introduced the third defendant (as purchaser) to the
first and second defendants (as sellers);
4.2
at the time of the introduction the third defendant (as purchaser)
was ready and willing to purchase the cement business operation
of
the first and second defendants;
4.3
a valid sale agreement was concluded in respect of the cement
business operation between the first and second defendants (as
sellers) and the third defendant (as purchaser).
[5] Consequently and based
on the plaintiff's compliance with the written mandate given to the
plaintiff by the first and second
defendants (as sellers) the
plaintiff is entitled to claim compensation in the form of commission
from the first and second defendants.
[6] The plaintiff in its
particulars of claim expressly states that it claims commission from
the first and second defendants (as
sellers) in terms of the written
mandate.
[7] The cause of action
against the first and second defendants (as sellers) is based on
compliance by the plaintiff with the written
mandate given to the
plaintiff by the first and second defendants.
[8] Quite apart and
separate from the plaintiff's cause of action against the sellers,
the plaintiff's cause of action against the
third defendant is based
on an acknowledgement of liability and undertaking to pay which in
itself is a separate cause of action.
[9] The plaintiff in this
regard alleges that during the negotiations pertaining to the written
agreement to be concluded between
the first and second defendants (as
sellers) and the third defendant (as the purchaser) the third
defendant acknowledged its liability
towards the plaintiff and
undertook to pay the aforesaid commission to the plaintiff.
[10] This verbal
acknowledgement of liability and undertaking to pay was subsequently
reduced to writing and forms part of a draft
agreement between the
parties marked "E" which remained unsigned.
[11] The
facta probanda
giving rise to the cause of action against the third defendant is the
acknowledgement of liability and undertaking to pay given
by the
third defendant to the plaintiff during the negotiations between the
parties.
[12] Plaintiff in his
particulars of claim expressly states that it claims commission from
the third defendant based on the acknowledgement
of liability and
undertaking to pay. In addition the plaintiff expressly states that
it prays for judgment against the first and
second defendants (as
sellers) and the third defendant jointly and severally, the one
paying the other to be absolved.
[13] The third defendant's
exception is based on the grounds that the plaintiff's particulars of
claim is vague and embarrassing
in that
13.1
it is unclear whether the third defendant is liable to pay commission
to the plaintiff in terms of annexure "E" being
an unsigned
draft agreement of sale or annexure "F" being a signed
written agreement of sale;
13.2
whether the commission allegedly payable to the plaintiff is payable
by the first, second and third defendants or whether it
is payable by
the first and second defendants alternatively the third defendant;
13.3
whether plaintiff's particulars of claim contains averments necessary
to disclose a cause of action or not;
13.4
whether the claim for commission allegedly payable by the third
defendant to the plaintiff is based on annexure "E"
which
is an unsigned agreement of sale or annexure "F" a signed
agreement of sale which does not confer any liability
on the third
defendant regarding payment of commission or annexure "D",
a mandate agreement between plaintiff and the
first and second
defendants which does not confer any liability on the third
defendant.
[14] The issue to be
adjudicated upon by this court is whether plaintiff's particulars of
claim is in fact and in law vague and
embarrassing and lack averments
to sustain a cause of action.
[15] The excipient's
counsel argued that an exception to a pleading on the ground that it
is vague and embarrassing involves a twofold
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.
She referred to
Quinlan v MacGregor
1960 4 SA 383
(D&CLD)
at 393E H and
Trope v South African Reserve Bank and another
and two other cases
1992 3 SA 208
(TPD) at 211A B.
[16] She further argued on
behalf of the excipient that, as to whether there is prejudice or
not, the ability of the excipient to
produce an exception-proof plea
is not the only, nor indeed the most, important test. 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 to be taken by
surprise may well be defeated,
and refers to
Levitan v Newhaven
Holiday Enterprises CC
1991 2 SA 297
(CPD) at 298G H and
Trope's
case
supra
at 211B C.
[17] She argued that it may
be possible to plead 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. 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 and refers to
Parow Lands (Pty) Ltd v Schneider
1952 1 SA 150
(SWA) at 152F G as well as
Trope, supra
, at
211D E.
[18] Plaintiff's counsel
argued that the plaintiff's cause of action against the third
defendant is based on an acknowledgment of
liability and undertaking
to pay, which in itself is a separate cause of action and refers to
Rodel Financial Service (Pty) Ltd v Naidoo and another
2013 3
SA 151
(KZP) where the following is indicated at paragraph [12]:
"The
mere giving of the acknowledgment of debt coupled with an express
undertaking to pay the debt means that the creditor
may sue either on
the acknowledgment or on the original debt."
[19] He argued that in
order to succeed an excipient has the duty to persuade the court that
upon every interpretation which the
pleading in question, and in
particular the document on which it is based, can reasonably bear, no
cause of action or defence is
disclosed; failing this the exception
ought not to be upheld and refers to
Theunissen en andere v
Transvaalse Lewendehawe Koöp Bpk
1988 2 SA 493
(AD) at
500E F;
Lewis v Oneanate (Pty) Ltd and another
[1992] ZASCA 174
;
1992 4 SA
811
(AD) at 817(F);
Sun Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996 4
SA 176
(AD) at 183E;
Pete's Warehousing and Sales CC v Bowsink
Investments CC
2000 3 SA 833
(EC) at 839G H;
First
National Bank of Southern Africa Ltd v Perry NO and others
2001
3 SA 960
(SCA) at 965C D.
[20] He stated further that
the object of an exception is to dispose of the case or a portion
thereof in an expeditious manner or
to protect the party against an
embarrassment which is so serious as to merit the costs even of an
exception and refers to
Kahn v Stuart en andere
1942 CPD 386
at 391;
Lobo Properties (Pty) Ltd v Express Lift Co (SA) (Pty) Ltd
1961 1 SA 704
(CPD) at 711G;
Miller v Muller
1965 4 SA 458
(CPD) at 468.
[21] He further contended
that an exception founded upon the contention that a summons
discloses no cause of action, or that a plea
lacks averments
necessary to sustain a defence, is designed to obtain a decision or 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. He
referred to
Dharumpal Transport (Pty) Ltd v Dharumpal
1956 1
SA 700
(AD) at 706E. If it does not have that effect the
exception should not be entertained and referred to
Miller and
others v Bellville Municipality
1971 4 SA 544
(CPD) at 546D;
Rumanal (Pty) Ltd v Hubner
1976 1 SA 643
(ECD) at 646C.
[22] Plaintiff's counsel
argued further that an exception cannot be taken to a declaration or
particulars of claim on the ground
that it does not support one of
several claims arising out of one cause of action and referred to
Stein v Giese
1939 CPD 336
;
Du Plessis v Nel
1952
1 SA 513
(AD) at 531H 532A;
Dharumpal Transport, supra,
at 706E.
[23] The
onus
rests
upon the excipient who alleges that a summons discloses no cause of
action; the excipient has the duty to persuade the court
that the
pleading is excipiable on every interpretation that can reasonably be
attached to it. See
Amalgamated Footwear and Leather Industries v
Jordan & Co Ltd
1948 2 SA 891
(C) at 893;
Geldenhuys v
Maree
1962 2 SA 511
(OPA) at 514C.
[24] The pleading must be
looked at as a whole. See
Nel and others NNO v McArthur and others
2003 4 SA 142
(TPD) at 149F.
[25] An exception that a
pleading is vague and embarrassing must not be directed at the
particular paragraph within a cause of action.
It must go to
the whole cause of action which must be demonstrated to be vague and
embarrassing. See
Jowell v Bramwell-Jones and others
1998 1 SA 836
(WLD) at 899G;
Venter and others NNO v Barritt,
Venter and others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd
2008 4 SA 639
(CPD) at 644A.
[26] An exception that a
pleading is vague and embarrassing will not be allowed unless the
excipient will be seriously prejudiced
if the offending allegations
were not expunged. See
Levitan v Newhaven Holiday
Enterprises CC
1991 2 SA 297
(CPA) at 298A.
[27] The exception can be
taken only if the vagueness relates to the cause of action. See
Carelsen v Fairbridge, Arderne & Lawton
1918 TPD 306
at
309, approved in
Liquidators Wapejo Shipping Co, Ltd v Lurie Bros
1924 AD 69
at 74.
[28] The court in
considering the facts and applying the law into the facts first
refers to the general approach to exception in
Telematrix (Pty)
Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA
2006 1 SA 461
(SCA). In
Telematrix
ASA filed an exception
against the particulars of claim of the plaintiff in which ASA
pertinently raised questions whether a negligent
decision which
prohibited the publication of two advertisements and which gave rise
to pure economic loss can be wrongful in the
delictual sense. The
court
a quo
, Snyders J, upheld the exception and
found that the plaintiff's particulars of claim did not disclose a
cause of action.
In an appeal Harms JA at p465 466E
had this to say:
"[2]
... The case does not, therefore, have to be decided on bare
allegations only, but on allegations that were fleshed out
by means
of annexures that tell a story. This assists in assessing
whether or not there may be other relevant evidence that
can throw
light on the issue of wrongfulness. I mention this
because, relying on the majority decision in
Axiam Holdings Ltd v
Deloitte & Touche,
[
Axiam
2006 1 SA 237
(SCA)] the
plaintiff argued that it is inappropriate to decide the issue of
wrongfulness on exception because the issue is fact-bound.
That
is not true in all cases. This Court, for one, has on many occasions
decided matters of this sort on exception. Three important
judgments
that spring to mind are
Lillicrap, Indac
and
Kadir
[
Lillicrap
1985 1 SA 475
(A),
Indac
1992 1 SA 783
(A)
and
Kadir
1995 1 SA 303
(A)].
Some
public policy considerations can be decided without a detailed
factual matrix, which by contrast is essential for deciding
negligence and causation.
[3]
Exceptions should be dealt with sensibly. They provide a useful
mechanism to weed out cases without legal merit.
An
overtechnical approach destroys their utility. To borrow the
imagery employed by Miller J, the response to an exception
should be like a sword that 'cuts through the tissue of which the
exception is compounded and exposes its vulnerability'."
[29] Erasmus
Supreme
Court Practice
B1-153 summed up the position as follows:
"An
exception that a pleading is vague and embarrassing is not directed
at a particular paragraph within a cause of action:
it goes to the
whole cause of action, which must be demonstrated to be vague and
embarrassing. ... 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] ZASCA 54
;
1993 3 SA 264
(A) at 269I.] ...
An
exception that a pleading is vague or embarrassing will not be
allowed unless the excipient will be seriously prejudiced if the
offending allegations were not expunged. [See
Levitan v
Newhaven, supra
.]
The
test applicable in deciding exceptions based on vagueness and
embarrassment arising out of lack of particularity can be summed
up
as follows [
Lockhat v Minister of the Interior
1960 3 765 (D)
at 777A E;
Quinlan v MacGregor
1960 4 SA 383
(D) at
393F H;
Trope v South African Reserve Bank
1992 3 SA 208
(T) at 211B]:
(a)
In each case the court is obliged first of all to consider whether
the pleading does lack particularity to an extent amounting
to
vagueness. Where a statement is vague it is either meaningless or
capable of more than one meaning. To put it at its simplest:
the
reader must be unable to distill from the statement a clear, single
meaning.
(b)
If there is vagueness in this sense the court is then obliged to
undertake a quantitative analysis of such embarrassment as
the
excipient can show is caused to him or her by the vagueness
complained of.
(c)
In each case an
ad hoc
ruling must be made as to whether the
embarrassment is so serious as to cause prejudice to the excipient if
he or she is compelled
to plead to the pleading in the form to which
he or she objects. ...
(d)
The ultimate test as to whether or not the exception should be upheld
is whether the excipient is prejudiced.
(e)
The
onus
is on the excipient to show both vagueness amounting
to embarrassment and embarrassment amounting to prejudice.
(f)
The excipient must make out his or her case for embarrassment by
reference to the pleadings alone.
(g)
The court would not decide by way of exception the validity of an
agreement relied upon or whether a purported contract may
be void for
vagueness."
[30] In
Francis v Sharp
and others
2004 3 SA 230
(CPD) at 240F G plaintiff's action
arises from an alleged breach of contract by the first and second
defendants and seeks
payment of damages and ancillary relief. The
contract on which the plaintiff relies was not reduced into writing.
The defendants
excepted on the grounds of failure by the plaintiff to
make averments necessary to sustain a cause of action alternatively
the
particulars of claim are vague and embarrassing.
H J Erasmus, J at p237D H stated referring to
Colonial Industries Ltd v Provincial Insurance Co Ltd
1920 CPD
627
at 630 where Benjamin,J said, regarding the general approach to
exceptions:
"
'Save in the instance where an exception is taken for the purpose of
raising a substantive question of law which may have
the effect of
settling the dispute between the parties, an excipient should make
out a very clear, strong case before he should
be allowed to
succeed.'
This
approach has been consistently followed in this Division ... [see
Kahn
's case,
Lobolo Properties
case and
Levitan
's
case as already cited in paragraphs 16 and 20
supra
].
It
has been held that a commercial document executed by the parties with
a clear intention that it should have commercial operation
should not
lightly be held to be ineffective ... In my view, a similar approach
should, in broad terms and
mutatis mutandis
, be adopted in
regard to an oral commercial agreement."
At page 240G
he stated:
"The
approach to be adopted to an exception that a pleading is vague and
embarrassing was stated as follows in
Levitan v Newhaven Holiday
Enterprises CC (supra
at 298A):
'It
has been stated, clearly and often, that an exception that a pleading
is vague or embarrassing ought not to be allowed unless
the excipient
would be seriously prejudiced if the offending allegations were not
expunged.'
To
this must be added the consideration that the validity of an
agreement and the question whether a purported contract may be void
for vagueness do not readily fall to be decided by way of an
exception ..."
[31] In
Southernport
Developments (Pty) Ltd v Transnet Ltd
2003 5 SA 665
(W) and
2005
2 SA 202
(SCA) the appellants' particulars of claim were met with an
exception which was upheld by Blieden, J in the South Gauteng
High Court, Johannesburg, but on appeal the order of the court
a quo
was set aside and the exception was dismissed with costs. The parties
undertook to enter into good faith negotiations to agree
upon and
conditions of a lease agreement. In default of consensus between the
parties the agreement provided for arbitration. Failure
by the
parties to agree would constitute a dispute within the meaning of
that expression thus justifying a referral to arbitration.
Ponnan, AJA in paragraph [12] at p208 held that the duty to
negotiate in good faith is known to our law in the field of labour
relations and referred to the English, American and Australian legal
positions. The English law refuses to recognise a
pre contractual
duty to negotiate in good faith. In the
United States the enforceability of agreements to negotiate in good
faith varies
from state to state.
In Australia in
Coal
Cliff Collieries (Pty) Ltd v Sijehama (Pty) Ltd
(1991) WSWLR 1,
Kirby, P stated at 26E 27B:
"From
the foregoing, it will, I hope be clear that I do not share the
opinion of the English Court of Appeal that no promise
to negotiate
in good faith would ever be enforced by a Court. I reject
the notion that such a contract is unknown to
the law whatever its
term. I agree with Lord Wright's speech in
Hillas &
Co Ltd v Arcos Ltd
[1932] UKHL 2
;
1932 147 LT 503
at 515 that, provided there
was consideration for the promise, in some circumstances, a promise
to negotiate in good faith will
be enforceable ... Nevertheless
... I believe that the proper approach to be taken in each case
depends upon the construction
of the particular contract."
The
Honourable Acting Judge of Appeal at p211 stated:
"It
is the very exercise of the right to contract which has bound the
parties to the negotiation in good faith which they promised.
Thus to enforce that undertaking is not to interfere in the parties'
freedom to contract but to uphold it."
[32] In
Codix Trust and
others v Stockowners Co-operative (in liquidation) and others
[2014] 1 All SA 342
(KZP) an appeal against the judgment of
Radebe, J, upholding the respondents' exception to the
appellants' particulars of
claim on the ground that they lacked an
averment necessary to sustain a cause of action in that the
appellants had not pleaded
and proved compliance with the provisions
of section 215(1) and (5) of the Co operatives Act 91 of 1981
which requires everyone
who has a claim against the liquidated
co operative to give notice to the liquidator of the
co operative in liquidation
of the action or intended action
against the co operative. It was the appellants'
contention that since the relief
they seek is declaratory in nature
such notice was and is not a requirement. Madondo, J at 353c-e
stated:
"[41]
An excipient should make out a very strong case before he or she
should be allowed to succeed. An excipient has the duty
to persuade
the court that upon every interpretation that the particulars of
claim could reasonably bear, no cause of action was
disclosed. See
Francis v Sharp and others
2004 3 SA 230
(C) at 237D I
... It is, therefore, appropriate to except if the point of law
raised will dispose of the case in whole or
in part. A pleading
is excipiable only on the basis that no possible evidence led on the
pleadings can disclose a cause of
action."
The order of the court
a
quo
upholding exception was set aside and the appeal upheld based
on the fact that compliance with the statutory provisions in question
was not an essential ingredient of the appellant's cause of action
but a peripheral issue which should not have been allowed to
bar the
appellant's access to justice and to have their claims properly
ventilated.
[33] In
Quinlan v
MacGregor
referred to by the excipient's counsel,
supra
,
the defendant excepted to paragraphs (6) and (7) of the plaintiff's
declaration on the ground that they are bad in law and/or
vague and
embarrassing by virtue of an acknowledgement of debt which did not
reflect the other instalments not paid by the defendant
within the
due date. Burne, AJ stated that the exception fails on the
ground that it is not directed against the declaration
as a whole but
against paragraphs (6) and (7) alone and counsel for the excipient
did not complain of any lack of clarity as to
the cause of action
relied upon. Individual allegations or paragraphs never aspire
to disclose a cause of action in themselves
and as such cannot be
excepted to at such level. All that seems available to the
excipient is the complaint that there is
a lack of particularity.
Even if some measure of vagueness is caused, such vagueness does not
create embarrassment of such
proportions as to warrant the taking of
an exception. In each case the court is obliged first of all to
consider whether
the pleading does lack particularity to an extent
amounting to vagueness. The eventual test as to whether the
exception should
be upheld or not is whether the excipient is
prejudiced. In the present case as long as the excipient is
informed, albeit
by implication, that it failed to pay some of the
instalments, he is not greatly prejudiced in pleading merely because
he is not
informed of the precise amount which the plaintiff says he
failed to pay. The exception was dismissed with costs.
[34] The court has to
consider further principles relating to an exception taken on the
ground that a pleading is vague and embarrassing.
In
Jowell
v Bramwell-Jones and others, supra,
at 899-903 Heher, J
stated:
(a)
The object of all pleadings is that a succinct statement of grounds
upon which a claim is made or resisted shall be set forth
shortly and
concisely, and the pleader is thus merely required to plead a summary
of the neutral facts.
(b)
It is therefore incumbent upon a plaintiff only to plead a complete
cause of action which identifies the issues upon which he
seeks to
rely and on which evidence will be led, in intelligible and lucid
form and which allows the defendant to plead to it.
(c)
An attack on a pleading as being vague and embarrassing cannot be
found on the mere averment of lack of particularity, although
a lack
of particularity might allow an application in terms of Rule 30,
which is an entirely different proceeding.
(d)
The test whether a pleading is vague and embarrassing has also been
stated to be whether an intelligible cause of action (or
defence) can
be ascertained.
(e)
An exception that a pleading is vague and embarrassing may only be
taken when the vagueness and embarrassment strikes at the
root of the
cause of action or the defence.
(f)
Pleadings must be read as a whole; no paragraph can be read in
isolation. The exception must be directed at the whole
cause of
action which must be demonstrated to be vague and embarrassing.
(g)
A distinction must be drawn between the
facta probanda
, or
primary factual allegations which every plaintiff must make and the
facta probantia
, which are secondary allegations upon which
the plaintiff will rely in support of primary factual allegations.
Generally speaking,
the latter are matters for particulars for trial
and even then are limited; for the rest they are matters for
evidence.
(h)
In
Absa Bank Ltd v Boksburg Transitional Local Council (Government
of the Republic of South Africa, third party)
1997 2 SA 415
(WLD)
at 422 it was held that it is sufficient if a defendant knows
adequately what a plaintiff's case is or sufficiently shows
the
defendant the case which he is called upon to meet.
(i)
As already stated in
Levitan v Newhaven Holiday Enterprises CC
(cited
supra
) an exception that a pleading is vague and
embarrassing ought not to be allowed unless the excipient should be
seriously prejudiced
if the offending allegations were not expunged.
[35] During argument
plaintiff's counsel clearly stated that the plaintiff's cause of
action against the defendant is based on an
acknowledgement of
liability and undertaking to pay and that an acknowledgement could be
oral or in writing. The excipient's
counsel conceded that an
oral acknowledgement of debt is enforceable. Plaintiff's
counsel further argued that annexures "D"
(mandate) and "F"
(signed agreement of sale) do not form part of the cause of action
against the third defendant and
therefore no misstatement nor
confusion has been brought about by the particulars of claim. The
onus
rests with the excipient to prove that the pleadings are
vague and embarrassing and lacks the averments to sustain a cause of
action.
[36]
A court seized with this type of an application should carefully
consider whether the complaining party is in fact embarrassed
or
engaged in a game of delaying the prosecution of the action.
The excipient in her contention under vagueness and embarrassment
raises matters which are totally outside the scope of the plaintiff's
particulars of claim as the particulars of claim clearly
refer to an
oral agreement during negotiations between the first, second and
third defendants whereby the third defendant acknowledged
its
liability towards plaintiff and undertook to pay commission to the
plaintiff (
vide
paragraph 8 of the particulars of claim).
At paragraph 10 of the particulars of claim plaintiff clearly states
that the
facta probanda
giving rise to the cause of action
against the third defendant is the acknowledgement of liability and
undertaking to pay given
by the excipient to the plaintiff during the
negotiations between the parties.
In so far as an exception that the particulars of claim
do not contain averments necessary to disclose a cause of action is
concerned,
in her exception the excipient has imported some averments
which are totally irrelevant to the pleadings by bringing annexures
"D" and "F" in issue which were only applicable
to the first and second defendants.
[37] Having taken into
account the following:
(a)
the approach by Harms, JA as to how to deal with exceptions in
Telematrix
's case in paragraph 28
supra
;
(b)
the test applicable in deciding exception based on lack of
particularity as summed up in the
Lockhat
and
Quinlan
cases referred to in paragraph 29 above;
(c)
the approach adopted in
Francis v Sharp
referred to in
paragraph 30
supra
and as to how an oral commercial agreement
should be treated (in this particular case an acknowledgement of debt
to an oral agreement
involving an estate agent's commission is in its
nature a commercial agreement);
(d)
the reference to enforceability of good faith negotiations in the
Southernport Developments
case referred to in paragraph 31
above;
(e)
whether the excipient has been prejudiced or not by the plaintiff's
particulars of claim with reference to
Levitan
' case referred
to in paragraph 26
supra
; the court is not convinced that the
excipient will be prejudiced if the exception is not entertained.
(f)
Whether the excipient has persuaded the court that the pleading is
excipiable on every interpretation that can reasonably be
attached to
it.
(g)
Further considerations and principles as laid down by Heher, J
in
Jowell v Bramwell-Jones
referred to in paragraph 34 above.
(h)
The excipient failed to read the pleading as a whole and direct her
exception at the pleadings as a whole, instead she directed
them at
annexures "D", "E" and "F" (see
Erasmus
in paragraph 29
supra
).
[38] In the premises the
exception must fail.
[39] The following order is
made:
(a)
The exception is dismissed with costs.
P L C
MASETI
ACTING
JUDGE OF THE GAUTENG DIVISION, PRETORIA
29689-2012
DATE OF HEARING: 14 MARCH
2014
DATE OF JUDGMENT: 4 APRIL
2014
FOR THE PLAINTIFF: ADV S G
MARITZ
INSTRUCTED BY: JARVIS
JACOBS RAUBENHEIMER
177
AYER ROAD
PRETORIA
FOR THE EXCIPIENT: ADV M
RILEY
INSTRUCTED BY: WATSON &
VAN STADEN
13
STAMVRUG STREET
PRETORIA