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[2014] ZAGPPHC 323
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Qualitor (Pty) Ltd v Emfuleni Resorts (Pty) Ltd and Others (1505/13) [2014] ZAGPPHC 323 (30 May 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case Number: 1505/13
Date: 30 May 2014
Not Reportable
Not of interest to other judges
In the matter between:
QUALITOR (PTY)
LTD
.............................................................................
PLAINTIFF
and
EMFULENI RESORTS (PTY)
LTD
............................................................
1
st
DEFENDANT/EXCIPIENT
AFRISUN GAUTENG (PTY)
LTD
............................................................
2
nd
DEFENDANT/EXCIPIENT
SUN INTERNATIONAL (SOUTH AFRICA)
LTD
...................................
3
rd
DEFENDANT/EXCIPIENT
TEEMANE (PTY)
LTD
...............................................................................
4
th
DEFENDANT/EXCIPIENT
SUNWEST INTERNATIONAL (PTY)
LTD
...............................................
5
th
DEFENDANT/EXCIPIENT
MEROPA LEISURE AND ENTERTAINMENT
(PTY)
............................
6
th
DEFENDANT/EXCIPIENT LTD
AFRISUN KZN (PTY)
LTD
........................................................................
7
th
DEFENDANT/EXCIPIENT
TRANSKEI SUN (PTY)
LTD
............................................................////.....
8
th
DEFENDANT/EXCIPIENT
MANGAUNG SUN (PTY)
LTD
.................................................................
9
th
DEFENDANT/EXCIPIENT
LESOTHO SUN (PTY)
LTD
.....................................................................
10
th
DEFENDANT/EXCIPIENT
MANZANE ESTATES
LTD
.....................................................................
11
th
DEFENDANT/EXCIPIENT
EZULWINI PROPERTIES (PTY)
LTD
..................................................
12
th
DEFENDANT/EXCIPIENT
SUN INTERNATIONAL MANAGEMENT
LIMITED
.........................
13
th
DEFENDANT/EXCIPIENT
(INCORPORATED IN BERMUDA)
Coram:
HUGHES J
JUDGMENT
Delivered on: 30 May 2014
Heard on: 18 March 2014
HUGHES J
1. This is an exception application
raised by the defendant/excipient, for convenience the parties
will be cited as in the
main action, which is plaintiff and
defendants.
2. After the exception was raised the
plaintiff sought an amendment of the particulars of claim. The
defendant objected to
the proposed amendment and sought the
dismissal of the amendments and the exception to be upheld with
costs.
3. From the outset it must be emphasised
that the plaintiff's claim is against thirteen (13) defendants
which all form part
of Sun International Group of Companies
("SIGC"). The claims against the first to the twelfth
defendants are
virtually the same and reliance is on a written
alternatively oral contract. The claim against the thirteenth
defendant
relies on an issue of vindication of certain property
of the plaintiff provided to the thirteenth defendant and as such
differs from the other twelve claims. Likewise, the exceptions raised
in the twelve claims though they are similar, they differ
from the
claim raised against the thirteenth defendant.
4. Under the circumstances I propose to
deal with the claims as follows, claims one to twelve will be
dealt with as one, since
they are the similar, but for the
amounts claimed, and the claim thirteen on its own.
5. The sequence of events occurred as
follows; the defendant raised exceptions, two in respect of
claims one to twelve and
one in respect of claim thirteen. The
plaintiff proceeded to amend the particulars of claim in an
attempt to cure the
complainants. However the defendant objected
to the proposed amendments that the plaintiff sought to cure the
complainants
raised.
6. In respect of claims one to twelve
the plaintiff instituted an action against the defendants based
on a written agreement
alternatively an oral agreement. The
plaintiff claims that it is not in possession of the written
agreement entered into
on 21 April 2006 attached and as an
annexure an unsigned written agreement. The plaintiff contends
that the terms of
the written agreement were as appears in the
annexure attached. Alternatively, if I find that no written agreement
was
concluded between the parties then the terms of the oral
agreement concluded by the parties, were exactly the same as
appears in the written agreement annexed. For purpose of this
application it is not necessary to go into the terms of
the agreement.
7. The case of the plaintiff set out in
the particulars of claim is that the defendant repudiated the
written agreement when
it purported to cancel. According to the
plaintiff the defendant could not cancel and as such the
piaintiff demanded
performance. Due to the defendants conduct
the plaintiff sought payment from the defendant of the
"membership fee"
to which the agreement alluded to in
respect of the Environmental Management Programme.
8. The exceptions raised were that the
unsigned written agreement annexed does not constitute the
agreement entered into by
the parties. Further, as regards the
oral agreement the written agreement annexed as at clause 12
makes provision that
the agreement will only be considered valid
and final between the parties unless signed by the parties. Thus
the defendant
avers the oral agreement would not have come into
existence without the written agreement being signed by the
parties.
9. The amendment sought by the plaintiff
to cure the complaints, was to replace paragraph 5.3 of the
particulars of claim which
reads as follow:
"An
unsigned copy of
their written agreement is attached hereto as annexure 'A' "
with
this paragraph:
"An unsigned template agreement
representing a similar agreement with the same contents and terms and
conditions as contained
in the agreement referred to entered
into between the parties, is attached hereto as annexure 'A'
10. The plaintiff submits that it
specifically pleaded that it was not in possession of the signed
and original written agreement
between the parties and that the
written agreement was in defendant possession. The defendant's
exception was that the
agreement that the plaintiff relies upon
is a "generic application for membership with no indication
that it intended
to be an agreement between the plaintiff and
the first defendant" and thus this written document does
not amount
to an agreement between the parties.
11.
The defendant further argued that by virtue of the plaintiff's
intent to amend the particulars of claim to cure the complaint
the exception raised was good in law and valid. On the other
hand the plaintiff submitted that the amendment was sought
for
the sake of
"proper
housekeeping and semantics...to rectify the objection insofar as
it discloses a ground for exception
."
12. After the amendment was sought by
the plaintiff the defendant objected to same on the basis that
the propose amendment
sought by the plaintiff would render the
particulars of claim non-compliant with rule 18(6) of the
Uniform Rules of court.
13. Rule 18(6) reads as follows:
“
A party who in a pleading relies
upon a contract shall state whether the contract is written or oral,
and when, where and by whom
it was concluded, and if the
contract is written a true copy thereof or of the part relied on
in the pleading shall be annexed to
the pleading."
14. It is noted that the exception and
amendment pertain to the same issue of the written agreement and
alternatively the oral agreement.
In my view it is convenient to
deal with both exception and amendment.
15.
With regards to compliance of the rule the plaintiff submitted that
it was sufficient that it had specifically pleaded
that the
written agreement was not in its possession but in the
defendant possession and therefor the non-compliance
is not of
its own volition. Further, that annexure 'A' attached is a true
copy of the relevant terms of the written agreement
that the
plaintiff relies upon and thus plaintiff has complied with the
portion of rule 18 (6) that states:
"the
part relied upon in the pleading shall be annexed to the pleading".
16.
The plaintiff referred to the case of
Dass
and Others NNO v Lowewest Trading (Pty) Ltd
2011 (1) SA 48
(KZN)
at 53 paragraph (15)
where
it highlights that substantial compliance of the rules as long
as there is no prejudice to the other party should be
condoned.
17.
On the other hand the defendant referred to the case of
Moosa and
Others NNO v Hassam
2010 (2) SA 410
(KZP) at paragraph (20)
where
Swain J as he then was stated:
"It
is therefore clear that a party who bases its cause of action upon a
written agreement should obtain a true copy of the agreement
before advancing its claim. However
,
this is not to say
that a failure to annex a written agreement relied upon may never
be condoned in terms of rule 27(3)".
18.In the position that the plaintiff
found itself, where it relied on a written agreement that was
not in its possession,
it had the option of rule 27(3) which
reads as follows:
"The court may, on good cause
shown, condone any non-compliance with these rules".
19.
The plaintiff to its own detriment did not seek condonation from
the court as is envisaged in rule 27(3) and as such resulted
in
none compliance with rule 18(6). Plaintiff argued that the court
could condone the non-compliance
mero
motu,
this
is in line with the decision of
Dass
mentioned
above. From a reading of this case the
not
prejudicial to the other parties. In this matter it is clearly
prejudicial for the defendant as the defendant is unable to plead
to the particulars of claim of the plaintiff. In addition the
argument of the plaintiff that the defendant is well aware
that
there was a written agreement as it is evident from the
termination correspondence to my mind the plaintiff is merely
grasping at straws. The termination letters make mention of "any
and all agreements...", thus in my view this
is further
prejudice to the defendant as in these circumstance the
defendant would not have an idea of the agreement
relied upon
and in return which case it needed to meet.
20. The argument that a portion of the
written document as annexed, that the plaintiff place reliance
upon, cannot stand in
the face of the fact that the agreement
annexed was not that signed by the parties but merely a
template. The plaintiff
also made much of the best evidence rule
which in my view becomes operative at the trial stage. The
plaintiff places
reliance on the written agreement to substantiate
its claim in furtherance of its cause of action. If this document
is
not available during the pleadings stage then condonation
should be sought in terms of rule 27(3). Once condonation is
granted then at trial the plaintiff may use the template as the
best evidence of the non-existent written agreement.
21. Turning to deal with the agreement
having been an oral agreement along the same terms of the
written agreement annexed
as 'A', it is clear on an
interpretation of clause 12 of the written agreement that no
final or valid agreement comes
into effect unless signed by the
parties. The proposed amendment sought by the plaintiff to exclude
clause 12 from the
oral agreement attempts to solves the problem
of the oral agreement. There need not be signatures of the
parties for
the oral agreement to be relied upon to validate the oral
agreement. The defendant has correctly made this concession and thus
the amendment will sufficiently cure the complainant as regards
the oral agreement.
22. I now turn to deal with claim
thirteen. It would seem that the plaintiff provided the
defendant with collateral material
that was to be returned on
cancellation of any of the agreements between the plaintiff and
any of the companies forming
part of the Sun International Group
of Companies ("SIGC").
23. In this claim the plaintiff pleaded
that the defendants purported to cancel the agreements by the
companies of SIGC and
as such the return of the material arises
from this cancellation.
24. The defendant argued that this is a
vindicatory action based on the plaintiff's ownership of the
goods. The defendant raised
an exception to the effect that the
plaintiff having conceded that the defendant had the right to
have the material,
for the material to be returned to the
plaintiff, it would be necessary for plaintiff to plead that the
agreements had
been cancelled. The current situation is in fact
the opposite as the plaintiff in its particulars of claim,
pleads that
the contracts are still in existence and sought
performance by the defendant.
25. Yet again the plaintiff after
receipt of the exception, proposed to amend clause 13. In
dealing with the exception the
plaintiff proposed to amend
clause 13 making it a provisional claim based on the court
finding that the agreements were
in fact cancelled and if so
clause 13 to become operative.
26. The proposed amendment by the
plaintiff makes the claim conditional upon the finding that the
agreements are cancelled.
In the same vein the plaintiff pleads that
the agreements are in existence. How can one come to a conclusion of
cancellation, if
on the one hand the plaintiff states that the
agreements are in existence and on the other hand states that
the defendants
have purportedly cancelled the agreements.
27. The defendant argued that in the
circumstances the pleadings will remain excipiable as long as
the claim is premised on
a conditional claim of cancellation,
even with the proposed amendment sought.. The plaintiff reliance
of the cancellation
having taken place is the letters of
termination that it received from the defendants and even-in the face
of these letters
the plaintiff persists that the contracts subsisted.
28.
In advancing the plaintiff's case in respect of claim thirteen
the case of
CONSOL
Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty) Ltd and Another
(2) 2005 (6) SA (23) (C),
the
headnote, was referred to which I set out below:
"When one party to a contract
commits a breach of a material term, the other party is faced with an
election. He may cancel the
contract or he may insist upon due
performance by the party in breach. The remedies available to
the innocent party are inconsistent.
The choice of one
necessarily excludes the other, or, as it is said, he cannot
both approbate and reprobate. Once he
has elected to pursue one
remedy, he is bound by his election and cannot resile from it
without the consent of the other party. Three
exceptions have
been admitted to the principle of election, expressing
circumstances under which the innocent party may pursue
a remedy
which is incompatible with his election. They are the following:
(1) Firstly, the innocent party may adopt the so-caiied
'double-barrelled’ procedure of claiming enforcement of a
contract, with an alternative claim for cancellation and damages.
However, this is not a true instance of the innocent party
pursuing inconsistent remedies, because the claim for cancellation
only arises where the defendant, despite an order given pursuant
to the main claim for enforcement, persists in his breach
of the
contract. (2) Secondly, the innocent party may claim
cancellation or enforcement of the contract as alternative remedies,
based upon different factual averments. Effectively, it appears,
this exception amounts to the proposition that the strict operation
of the principle of election is relaxed where the innocent party
couples his election with a qualification or condition.
(3)
Finally, the innocent party may claim enforcement of the
contract if, in initially seeking damages upon cancellation, he
proceeded upon the mistaken belief that the defendant had repudiated
the contract."
29.
Taking
into account the dicta above and the circumstance of this matter
my view is that none of the exceptional circumstances mentioned
above are applicable and as such no cause of action has been
made out for the plaintiff's entitlement to claim thirteen
since there
is no cancellation as is required by the agreement
and the fact that the plaintiff seeks due performance by the
defendants. Consequently
this amendment must fail and the
exception upheld in respect of claim thirteen.
30. Accordingly I make the following
order;
30.1 The
amendment in respect of claims one to twelve in relation to the
written agreement is refused and the exception
upheld;
30.2 The
amendment in respect of claims one to twelve in relation to the
oral agreement is granted;
30.3 The
amendment in respect of claim thirteen is refused and the
exception is upheld;
30.4 The
plaintiff is ordered to pay the costs;
30.5 The
particulars of claim of the plaintiff are struck out and the
plaintiff is granted leave to deliver amended particulars of
claim within 10 days of this order.
W. Hughes
Judge of the High Court
Delivered on: 30 May 2014
Heard on: 18 March 2014
Attorney for the Excipient/Defendant:
KNOWLES HUSAIN LINDSAY INC
c/o FRIEDLAND HART SOLOMAN &
NICOLSON
Suite 301, Block 4
Monument Office Park
79 Steenbok Avenue
Monument Park
PRETORIA
Tel: 012 424 0200
Ref: TRUDIE VAN STRAATEN/nm/313183
Attorney
for the Plaintiff:
MARUIS
VILJOEN ATT
9
Black Cap Street
Wierda
Glen Centurion
Tel:
012 653 6441
Ref:
MV1541/10
c/o
BADENHORST ATT
643
Avril Street
Eloffsdal
Pretoria