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[2013] ZAGPPHC 256
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Poltimore Trading (Pty) Ltd v Naude and Others (16858/2011) [2013] ZAGPPHC 256 (27 August 2013)
NOT
REPORTABLE
IN THE HIGH COURT OF SOUTH AFRICA
(NORTH GAUTENG HIGH COURT)
In
the matter between:
Case
Number: 16858/2011
DATE:27/08/2013
POLTIMORE
TRADING (PTY)
LTD
.......................................................................
Plaintiff
and
RIAAN
NAUDE
.............................................................................................
First
defendant
MARLISE
NAUDE
.................................................................................
Second
Defendant
HARRY
VAN
BEBBER
..............................................................................
Third
Defendant
FRED
SHERRIFF
......................................................................................
Fourth
Defendant
JUDGMENT
PRELLER
J;
The
plaintiff is a developer who had sold a vacant stand to the third
defendant, who in turn sold it to the first two defendants.
A copy of
the written deed of sale is annexed to the particulars of claim. No
reference is made in the particulars of claim to
any agreement
between plaintiff and third defendant, although there are allegations
that the first two defendants were obliged
to enter into an agreement
with plaintiff as building contractor for the erection of a dwelling
on the property within a fixed
period of time (clause 13.1.1 of the
contract) and that plaintiff was obliged to provide building plans at
its own cost (clause
13.2). The origin of that obligation does not
appear from the particulars and nor is there any allegation that
plaintiff was a
party to the agreement or that the agreement
contained a stipuiatio aiteri in the favour of the plaintiff, which
had been accepted
by the plaintiff. The only possibly relevant clause
is clause 8.10, in terms of which a valid contract of purchase of
(sic, read
"and") sale would come into force between the
parties immediately upon signature thereof by the third defendant and
plaintiff
(underlining added). No further mention is made of
plaintiff's alleged right to the building contract.
Plaintiffs
first claim is based on breach of contract. It is alleged ion
paragraph 9 of the particulars that the first three defendants
had in
breach of the agreement concluded a further sale agreement "amongst
themselves and appointed" the fourth defendant
as a building
contractor. Without pleading that this constitutes a repudiation of
their obligations in terms of the agreement,
the plaintiff alleges
that it elected not to accept the repudiation and that it suffered
damages (sic) of R170 231.71 as a consequence.
Particulars are then
set out of the alleged damage, but there is no prayer at the end of
the claim for payment thereof.
In
the second claim plaintiff alleges that fourth defendant has
unlawfully competed with plaintiff by inter alia publishing injurious
falsehoods of the plaintiff, unlawfully using the fruits of
plaintiff's labour and inducing a breach of the contract concluded
by
(presumably) plaintiff with the first three defendants.
The
first three defendants are not referred to at all in the second
claim. Plaintiff once again alleges that it suffered damages
(sic) in
exactly the same amount and made up exactly as before. The second
claim concludes with an allegation that the damages
(sic) were or
should have been foreseeable by the fourth defendant. The particulars
conclude with a prayer that the four defendants
jointly and severally
pay the damages claimed.
The
particulars of claim are logically, linguistically and legally a
mess, to say the least and it is not surprising that at least
the
first three defendants took an exception to it. The fourth defendant
gave notice in terms of Rule 23(1) to the plaintiff on
17 May 2011
that the particulars of claim are vague and embarrassing but there is
no exception by him before me.
The
following are in effect the three grounds of the very complicated
language in which the exception was taken:
•
There
is no allegation that plaintiff was a party to the agreement or that
it accepted the benefit of a stipuiatlo aiteri;
•
Plaintiff
relies for its cause of action on an "agreement to agree",
which is void;
•
There
is no allegation in the particulars of claim that the plaintiff
signed the agreement or that plaintiff and third defendant
informed
the first two defendants of their "acceptance". ( Clause 16
of the agreement provides that as soon as the seller
(third
defendant) and the developer (plaintiff) have signed the agreement, a
binding agreement of purchase and sale shall come
into force between
the parties (which, incidentally, is not one of the 24 terms that are
defined in the agreement) and it would
then be necessary for them to
inform the first two defendants of their "acceptance", the
meaning of which latter term
is not entirely clear and which once
again is not defined in the agreement. )
In
his written heads of argument Mr. Swanepoel on behalf of the
excipients, made the valid point that the respondent expressly did
not accept the alleged repudiation of the contract by the excipients,
but nevertheless alleges that it suffered damage as a result
thereof.
Hence, according to Mr. Swanepoel, the claim for damages discloses no
cause of action.
Mr.
Wildenboer on behalf of the respondent answered that the latter
objection had not been raised in the Notice of Exception and
could
therefore not be argued before me. Despite the obvious merit in this
objection, it can accordingly not succeed.
The
respondent's answer to the first point listed above was that clause
13 of the agreement created clear reciprocal obligations
as between
the plaintiff on the one hand and the first two defendants on the
other and that plaintiff had signed the agreement.
That
plaintiff had signed the agreement is correct, but the capacity in
which he did so is by no means clear. Above the signature
of each of
the four signatories to the agreement the following words appear:
"THUS
DONE AND SIGNED BY THE PARTIES ON THE DATES AND AT THE PLACE STATED
HEREUNDER." The words are followed by a date
and a place, and
under the name of the respondent the word "DEVELOPER" is
inserted. There is, however, no allegation
in the particulars of
claim that plaintiff signed the agreement or became a party to it in
any other way. Although that allegation
should have been made, the
point is in my view too esoteric for the exception to have succeeded
on this ground alone.
The
second ground of exception is more complicated. Mr. Swanepoel
referred me to the judgment in Premier, Free State v. Firechem
Free
State & Ors., 2000(4) SA 413 SCA where Schutz JA considered in
paragraph [35] the validity of an agreement to conclude
a contract.
Apart from considering the problem of a purely potestative condition
and whether it should be regarded as a term or
as a condition, the
learned judge of appeal concluded that if the commitment of the
parties to negotiate a further agreement leaves
the door open to them
to still disagree, that agreement is not enforceable.
Against
that Mr. Wildenboer argued persuasively with reference to inter alia
Soleruou v. Retco Povntons, 1985(2) SA 922 (A) that
the clause in
question was an enforceable pactum de contrahendo that in terms of
the detailed provisions relating to the construction
of the building
leaves no other outstanding matters on which the parties could
possibly fail to agree.
That
argument overlooks the important factor that in the "agreement
to agree" no provision is made for the price for the
work to be
done or a tariff or a formula by which a definitive price can be
arrived at and still had to be negotiated. As Schatz
JA pointed out,
that leaves the price to be negotiated and to be possibly disagreed
upon. The term is accordingly unenforceable.
The
third objection raised in the notice of exception was not argued
before me and has in any event been to a large extent considered
when
dealing with the first point. In view of my conclusion regarding the
third point there is no need to deal with it any further.
My
conclusion is that the exception succeeds and I make the following
order: ORDER:
1.
The exception is upheld with costs.
2.
The particulars of claim are struck out.
3.
Plaintiff may, if so advised, apply for the amendment of its
particulars of claim within 20 days from the handing down of this
judgment.
F
G PRELLER
JUDGE
OF THE HIGH COURT