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[2014] ZAFSHC 197
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CG Casket & Coffin Manufacturers CC v JNJ Coffins CC and Others (3807/2013) [2014] ZAFSHC 197 (16 October 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No.: 3807/2013
In
the matter between:
CG
CASKET & COFFIN MANUFACTURES CC
….............................................
Applicant/Plaintiff
and
JNJ
COFFINS CC
…..................................................................................
First
Respondent/ Defendant
JACQUES
VAN RENSBURG
…...........................................................
Second
Respondent/ Defendant
NADINE
VAN RENSBURG
….................................................................
Third
Respondent/ Defendant
HEARD
ON:
14 AUGUST 2014
JUDGMENT
BY:
MBHELE, AJ
DELIVERED
ON:
16 OCTOBER 2014
[1]
This is an application in terms of Rule 28 (4) OF Uniform Rules (the
Rules) for an amendment of the plaintiff’s particulars
of claim
dated 13 September 2013.
[2]
The Applicant seeks to amend its particulars of claim in the
following manner:
2.1 By deleting
paragraph 5 in its entirety and substituting it with the following
paragraphs; 5A, 5B, 5C and 5D.
•
5A
During
or about 2008 the first defendant applied to the plaintiff for a
credit facility. The application was in writing, but the
document was
subsequently lost, alternately destroyed and in consequence the
plaintiff does not have a copy thereof;
•
5B
The
plaintiff accepted the first defendant’s application and duly
supplied and delivered its goods to the first defendant
from time to
time on 30 days credit terms and the first defendant frequently
honoured payment.
•
5C
The
arrangement prevailing between the parties at the time was on the
same terms and conditions of the plaintiff’s usual credit
terms
contained in a document called “CG CASKET & COFFIN MNFRS;
CC- CREDIT APPLICATION FOR A BUSINESS ACCOUNT”
which the
Defendants then signed on or about 31 October 2011 and at Heilbronn,
Free Sate (the “credit agreement”).
•
5D
The
credit agreement is annexed hereto marked “A”, and;
5D (1) the parties
acceded to the terms thereof by quasi mutual assent.
5D
(2) the parties have adopted the terms thereof even though it was
not formally signed by the plaintiff nor have the plaintiff
provided
the first defendant with a confirmation of credit letter, despite its
acceptance and approval of the credit facility in
terms thereof; and
5D
(3) the parties
de facto
acted in terms thereof, save only for the confirmation of credit
letter “mentioned above”.
2.2
By deleting the words “…and amplified by separate Deed
of suretyship annexed hereto marked “C”…
from
paragraph 14.
[3]
Consequently, by removing the said annexure “C” from the
particulars of claim.
BACKGROUND
[4]
The Applicant issued summons out of this court on 23 September 2013.
The Respondents took exception against the Applicant’s
particulars of claim. The court upheld the exception in a judgment by
Motloung AJ dated 24 April 2014.The Applicant was given 14
days to
amend its particulars of claim.
On
12 May 2014 the Applicant delivered Rule28 (1) Notice to amend its
particulars of claim.
The
Respondents are objecting to the Applicant’s proposed amendment
on the basis that the proposed amendment to the particulars
of claim
will offend the provisions of uniform Rule 18 (6) and furthermore
that it is excipiable on the grounds that it is vague
and
embarrassing.
[5]
Mr De Wet, on behalf of the Respondents pointed out that an amendment
ought not to be allowed where its introduction into the
pleading
would render such pleading excipiable.
ISSUES
IN DISPUTE
[6]
Mr Hattingh, on behalf of the applicant, argued that it is not stated
in the particulars of claim that the applicant relies
on the contract
signed in 2008. The 2008 contract was only mentioned to show the
genesis of a contractual relationship between
the applicant and the
respondents. He argued further that the applicant relies on a
contract signed in 2011 to prove its claim.
It is his submission that
the agreement was accepted by mutual conduct on the part of the
applicant.
[7]
It is further contended on behalf of the applicant that the terms of
the agreement signed in October 2011 are the same as those
of the
2008 contract. The parties continued to transact with each other on
the same terms as those of the 2008 agreement after
the Respondents
signed an agreement in 2011.
[8]
Mr De Wet on behalf of the respondents submits that the proposed
amendment does not state with clarity why the new credit agreement
was signed in 2011. He further submits that if the 2011
agreement was concluded on the same terms and conditions as the 2008
agreement, it should contain clause11.1 which requires of the
applicant to furnish the respondents with confirmation of acceptance
letter. It is further contended on behalf of the respondents that the
applicant did not comply with its obligations as set out
in the
application when he failed to send respondents letter of acceptance.
[9]
Mr De Wet further contends that the doctrine of quasi mutual assent
is not applicable in the circumstances as there are other
basic
principles that the applicant failed to comply with. He failed
to perform in terms of clause11.1 of the 2011 Contract.
Pillay
and Another v Shaik and others
2009(4)
SA 74 SCA
[10]
It is not in dispute that the parties had a contractual relationship
dating as far back as 2008. It is also not in dispute
that the
parties transacted with each other after October 2011. What seems to
be the main source of objection from the Respondents
is the fact that
the 2008 contract is not attached to the Applicant’s
particulars of claim.
EXCEPTION
[11]
Mr De Wet submits on behalf of the respondents that the amendment
should be refused as its introduction will render the pleading
excipiable. He submits that the particulars of claim as amended
does not comply with Rule 18.6 which requires of a party
relying on
an agreement to state if the agreement is oral or in writing. It is
further contended that the applicant must attach
the 2008 contract or
give an explanation as to what happened to the said contract to
enable the respondents to plead.
[12]
Mr Hattingh submits that the applicant has attached a copy of the
contract signed in 2011 to prove its claim. The 2008 contract
was
mentioned for the purposes of proving acceptance of conduct as quasi
mutual assent of 2011 contract.
[13]
He further argued that if one looks at the external manifestation of
the conduct of the parties, the conclusion to draw is
that the
parties were
ad idem
.
The applicant continued to deliver the stock as in terms of the 2011
contract and the respondents honoured their payments regularly
until
at the time they defaulted. He further argued that culpa and fault is
not an element for quasi mutual assent.
[14]
The applicant’s failure to send the respondent letter did not
preclude parties from performing in terms of the contract.
[15]
It is general rule that an exception on the basis that a pleading is
vague and embarrassing will not be allowed unless the
excipient will
be seriously prejudiced if the offending allegation will not be
expunged. The onus is on the excipient to the show
both vagueness
amounting to embarrassment and embarrassment amounting to prejudice.
[16]
Defendants do not complain that the proposed amendment will render
the particulars of claim excipiable on the basis that it
fails to
plead the terms of the agreement with sufficient clarity and
particularity. They contend that the plaintiff’s failure
to
annex the contract signed between the parties in 2008 renders the
pleadings excipiable.
[17]
I am of the view that the objection by the defendants to the proposed
amendment is misplaced. The Applicant attached the agreement
entered
into in 2011, which had the same terms and conditions as the
agreement signed in 2008. I am not of the view that the Applicant
should be barred from enforcing its claim on the basis that it is not
able to produce the written contract. The Applicant gave
an
explanation that the whereabouts of the 2008 contract are unknown.
[18]
In
Absa Bank Ltd v Zalvest Twenty
(Pty) LTD and Another
2014 (2)
SA119 (WCC) it was held:
“
The
rules of court exist in order to ensure fair play and good order in
conduct of litigation. The rules do not lay down the
substantive legal requirement for cause of action, nor in general are
they concerned with the substantive law of evidence. The
substantive
law is to be found elsewhere, mainly in legislation and the common
law. There is no rule of substantive law to the
effect that a party
to a written contract is precluded from enforcing its claim merely
because the contract has been destroyed
or lost. Even when the
contract is required by law to be in writing (a contract for the sale
of land or suretyship) what the substantive
law requires is that a
written contract in accordance with the prescribed formalities should
have been executed; the law does not
say that the contract ceases to
be effective if it is destroyed or lost.”
[19]
I align myself with the above statement. In this case the amended
particulars of claim will show that a contractual relationship
between the Applicant and Respondents existed since 2008 and in 2011
the parties entered into a contract with the same terms and
conditions as the initial contract. The particulars of claim as
amended will not prevent the Respondents from putting their version.
They may deny the existence of a contract or raise any defence
available in law. The objection raised by the Respondents
will
be better ventilated at trial. In the result I am of the view that
the application for amendment must be allowed.
[20]
I therefore make the following order:
1. Applicant is
granted leave to amend its particulars of claim as set out in its
Notice of Amendment dated 06 June 2014.
2.
Respondents to pay applicant’s costs, Respondents to be jointly
and severally liable for such costs.
_______________
N.M. MBHELE, AJ
On
behalf of plaintiff: Adv C. Hattingh
Instructed
by: Wessel & Hattingh Inc
PIETERMARITZBURG
c/o
Phatshoane Henney Attorneys
BLOEMFONTEIN
On
behalf of defendants: Adv P.J.T. de Wet
Instructed
by: Symington & De Kok
BLOEMFONTEIN