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[2014] ZAFSHC 230
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Karpah Construction CC v Potgieter and Others (530/2014) [2014] ZAFSHC 230 (12 December 2014)
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Case No: 530/2014
In the matter between:-
KARPAH
CONSTRUCTION CC
....................................................
Plaintiff/Respondent
and
PHILLIPUS
POTGIETER
…........................................................
1
st
Defendant/Excipients
PHILLIPUS
POTGIETER N.O.
….............................................
2
nd
Defendant/Excipients
ANNATHA
POTGIETER N.O.
….................................................
3
rd
Defendant/Excipients
JOHN
HENRY FORD N.O.
….......................................................
4
th
Defendant/Excipients
CORAM:
KRUGER, J
HEARD ON:
12 DECEMBER 2014
DELIVERED
ON:
12
DECEMBER 2014
[1] The defendants except to the plaintiff’s
particulars of claim on the basis of not disclosing a cause of
action, alternatively
being vague and embarrassing. The grounds
of exception can be discussed under the following headings:
(1) Contract not signed
[2] The first ground of exception is
that the plaintiff relies on a written contract, yet the contract has
only been signed by
the contractor and not by the employer. Mr
Pienaar, for the excipient, submits with reference to Christie’s
Law of Contract in South Africa
6
th
edition at 112 that a written contract only comes into existence when
the written document has been signed by both parties. Therefore
Mr Pienaar says plaintiff’s claim based on the “written
contract” does not disclose a cause of action.
[3] The answer to Mr Pienaar’s submission is that,
except in cases where legislation prescribes formalities, such as for
instance
that the contract for the sale of land must be in writing,
the parties are fee to decide on the form of their contract. A
written contract signed by the parties is one such form. Another
form could be that the signatures must be witnessed. Another
form could be that the terms be in writing, but need not be signed by
the parties, or by both parties. The latter is the
type of
contract the parties agreed to here. They acted in terms of
this agreement. The plaintiff alleges in the particulars
of
claim that the defendants have paid close to R6 million. A
written document, although signed by only one party, constitutes
a
written agreement nonetheless, as it was received by one of the
contracting parties without demur by the other and acted upon
by both
parties (
Mervis Brothers v Interior Acoustics and Another
1999 (3) SA 607
(W) at 610D-G).
(2) Non-variation clause;
Plaintiff not entitled to preliminary and 10% payments
[4] The second ground of exception is that in view of
the non-variation clause in the written agreement on which the
plaintiff relies,
all variations have to be in writing and signed by
both parties, therefore there could be no variations of the written
contract,
and the plaintiff is not entitled to claim for “additional
preliminary amounts” as it has done.
[5] The answer to this ground of
exception is that in the initial contract the parties did not require
signature. As Mr Grobler
for the plaintiff points out, this
ground of exception is mutually exclusive to the first ground of
exception. The exception
seems to be excipiable. It could
hardly have been their contemplation that although the original
contract was not signed
by both parties, variations had to be signed.
The non-variation clause is inserted into contracts to protect
them from variations.
Where the parties do not clearly indicate
their acceptance and incorporation of the non-variation clause into
their agreement
by appending their signatures to the contract, the
non-variation clause in the strict terms of clause 1.5 of the
standard contract
prepared by the Joint Building Contract Committee
cannot be deemed to be part of the agreement between the parties. At
the
very least, at this (exception) stage the test is whether, as a
reasonable interpretation, clause 1.5 can be regarded as not forming
part of the agreement (
Pete’s
Warehousing and Sales CC v Bowsink Investments CC
2000 (3) SA 833
(E) par [22], [26]).
[6] Mr Pienaar says that the
agreement, read with annexure “B” thereto makes provision
for additional preliminaries
of R390 133,74, not for additional
preliminaries of R130 044,58 per month. Mr Grobler says the
calculation is hardly unclear
– 3 x R130 044,58 = R390 133,74.
These were the costs for the extended period. The costs are
allowed in terms
of the contract if the period gets longer (Clause
14.8). It cannot be said that these allegations as to
additional payment
in the particulars of claim are so unclear that on
any reasonable interpretation, they cannot sustain a cause of action
(
Pete’s Warehousing
(
supra
)
par [14]).
(3) The variation orders
[7] This complaint falls away once one accepts, as one
has to at this stage, that on one of the reasonable interpretations
of the
agreement between the parties, the written document was not
the sole memorial of their contractual relationship. As Mr
Grobler
points out, the “Contract Sum” (Clause 1.1) is
subject to adjustment.
(4) Further agreements
[8] The excipient complains that the further agreement
alleged by the plaintiff in paragraph 16 of the particulars of claim
is not
stated to have been oral or in writing, as required by the
rules of court, and is therefore vague and embarrassing. Mr
Grobler
explains the allegations in the pleadings by pointing out
that the particulars of claim do not here rely on a further
agreement,
but simply state that the defendants had failed to issue
further payment certificates notwithstanding practical completion and
had failed to make full payment of amounts that were due and owing.
The plaintiff thus pleads, so says Mr Grober, an
impasse
.
Plaintiff simply states that the parties had agreed that the
total value of the works done was R6 016 621,76. The
plaintiff
does not plead a variation of the original agreement, nor does it
plead a novation. It simply states that one of
the essential
elements entitling it to payment is not in dispute. Thus, so Mr
Grobler points out, all that plaintiff is doing
is simply alleging in
the particulars of claim that there is no need to rely on further
payment certificates, nor does plaintiff
need to indicate the
specific contract value. Mr Pienaar says that the terms of the
contract as pleaded do not allow for
the inferences Mr Grobler
contends for. That is in my view a matter for the trial court.
[9] Courts are reluctant to decide
issues on exception which are fact bound (
Dettmann
v Goldfain and Another
1975 (3) SA
385
(A) at 400A per Corbett JA;
Klokow
v Sullivan
2006 (1) SA 259
(SCA)
par [24]). The main purpose of an exception is to avoid the
leading of unnecessary evidence (
Dharumpal
Transport (Pty) Ltd v Dharumpal
1956 (1) SA 700
(A) at 706D-E). In order for an exception based
on the allegation that it is vague and embarrassing to succeed, the
excipient
has to indicate prejudice
Francis
v Sharp and Others
2004 (3) SA 230
(C) at 240E-G. The excipient has not indicated how it is prejudiced.
CONCLUSION
[10] There is no merit in any of the grounds of
exception. It cannot be said that the pleadings do not disclose a
cause of action
or are vague and embarrassing on every possible
interpretation. Furthermore the excipient has failed to indicate
prejudice.
ORDER
The exception is dismissed with costs.
_______________
A. KRUGER, J
On behalf of excipients/defendants: Adv C.D. Pienaar
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
On behalf of respondent/plaintiff: Adv S. Grobler
Instructed by:
Peyper Attorneys
BLOEMFONTEIN