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[2014] ZAFSHC 93
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Bezuidenhout v Lindelo Projects CC and Another (4990/2013) [2014] ZAFSHC 93 (26 June 2014)
FREE
STATE
HIGH COURT,
BLOEMFONTEIN
REPUBLIC
OF SOUTH AFRICA
Case
No.: 4990/2013
In
the matter between:
JACOBUS
WENTZEL TROUT
BEZUIDENHOUT
................................................................
Plaintiff
and
LINDELO
PROJECTS
CC
.................................................................................................
1
st
Defendant
FREDERICK
JANKOWITZ
............................................................................................
2
nd
Defendant
HEARD
ON:
6 JUNE 2014
JUDGMENT
BY:
MBHELE, AJ
DELIVERED
ON:
26 JUNE 2014
[1]
This is an exception to the plaintiff’s particulars of claim on
the basis that it is vague and embarrassing.
[2]
The plaintiff issued summons against the defendants on the 3
rd
December 2013 for a claim in the amount of R480 000.00 arising
from an alleged breach of contract. Defendants filed
a notice
of intention to defend.
[3]
On the 18
th
February 2014, defendants served a rule 23(1) notice on the
plaintiff’s attorneys. Defendants served notice of
exception
on the plaintiff on 14 March 2014 which was preceded by
plaintiff’s response to defendants’ rule 23(1) notice.
[4]
Before dealing with the grounds for exception it is necessary to
summarise applicable principles. These are contained
in
Erasmus, Superior Court Practice at B1-154 to B1-154A.
“
An
exception that a pleading is vague and embarrassing will not be
allowed unless the excipient will be seriously prejudiced if
the
offending allegations will not be expunged…..
(a) 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. A point may be of the utmost importance
in one case, and the
omission thereof may give rise to vagueness and embarrassment, but
the same point may in another case be only
a minor detail.
(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) The ultimate
test as to whether or not the exception should be upheld is whether
the excipient is prejudiced.
(d) The onus is on
the excipient to show both vagueness amounting to embarrassment and
embarrassment amounting to prejudice.
(e) The excipient
must work out his or her case for embarrassment by reference to the
pleadings alone.
(f) 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.”
The
premise upon which the grounds of exception are built is as follows:
“
Die
skriftelike dokument word by die besonderhede van vordering aangeheg
as bylaag ‘A’.
In
bylaag ‘A’ word geen aanstelling van die eiser as
alleenagent (mandaat houer) op rekord geplaas nie. In die
ooreenkoms bylaag ‘A’ word ongeidentifiseerde ‘MLS-lid’
firma die reg en toestemming verleen om die eiendom
te verkoop
onderhewig aan sekere voorwaardes.
In
die dokument word verder op rekord geplaas dat eiendomsagente
kommissie deur die verkoper aan die betrokke (ongeidentifiseerde)
MLS-lid firma betaal sal word.”
[5]
Mr. Danzfuss on behalf of the defendant argued that on the face of
the contract, it shows that parties did not intend to give
the
plaintiff the sole mandate to sell the property based on the
following: In the heading the words “MLS” and
Multi
Listing Services are deleted.
In
the body of the agreement reference is made to the MLS-lid ‘firma’
but in a number of instances the ‘MLS’
part of the word
‘MLS’-lid ‘firma’ has been deleted. The
space meant for the identification of the
person in whose favour the
mandate is granted, has been left blank and scratched out.
[6]
He acknowledges that the handwritten part of the annexure ‘A’
provides as follows:
“
10.2
Geen ander agente of MLS opedae hou oop mandate nie.
10.3
Net, Wentzel Bezuidenhout van ‘ERA’ Bloemfontein mag die
bemarking doen.”
He
further argued that the plaintiff was authorised by ‘ERA’
to accept the mandate and that ‘ERA’ should
be the
litigant and not the plaintiff. He further argues that no oral
evidence will erase the defect on the contract.
[8]
It is common
cause
that parties entered into a contract. The parties used a
pro-forma document to express their intentions. On the face
of
the contract, it is apparent that parties wanted to delete the word
“MLS”-Multi Listing Services. The intention
of the
parties is further amplified in paragraph 10 of the contract wherein
the parties excluded other agents and Multi Listing
Services and gave
plaintiff the sole mandate to market the sale of the property.
[9]
The contract must be read in totality in order to give meaning to the
intentions of the parties. If the assailed paragraphs
are to be
read in the context of the whole agreement, it is apparent that
parties had intended to delete the word ‘MLS’
from the
contract.
[10]
In
Murray & Roberts Construction
Ltd v Finat Properties (Pty) Ltd
1991
(1) SA 508
(A) at 514E – F it was 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.”
[11]
It must be noted that the contract was drafted in a clumsy and
haphazard manner. The contract remains the mode of expression
the parties chose to communicate their intentions which intentions
may not be easily understood by those who were not directly
involved
in the transaction.
[12]
The intention of the parties can be gathered from the language they
used, which language was common to them at the time of
concluding the
contract.
[13]
In
Sun Packing (Pty) Ltd v Vreulink
1996 (4) 176 (A) it was held that:
“
As
a rule, courts are reluctant to decide upon exception questions
concerning the interpretation of a contract.
Francis
v Sharp and Others
2004 (3) SA 230
CPD ‘In addition, it happens more often than not that parties
enter into agreements, either in writing or orally, of which
the
terms are ambiguous, uncertain or disputed. While it is the
function of the courts to resolve these ambiguities and
uncertainties, the exception is generally not an appropriate vehicle
for resolving such disputes.”
[14]
I align myself with the aforementioned statement. The dispute
surrounding the contract involved in this case, cannot
be resolved at
this stage of the proceedings. I am of the view that the oral
evidence might clear the confusion. I
am not of the view that
the particulars of claim lack particularity and clarity that the
first and second defendants should have
difficulty pleading thereto.
ORDER
[15]
In the circumstances, the exception is dismissed with costs.
_______________
N.M.
MBHELE, AJ
On
behalf of plaintiff: Adv T L Manye
Instructed
by:
Hanno
Bekker Attorneys
BLOEMFONTEIN
On
behalf of defendants: Adv F.W.A. Danzfuss SC
Instructed
by:
Rossouws
Attorneys
BLOEMFONTEIN