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[2013] ZAFSHC 204
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Pioneer Hi-Bred RSA (Pty) Ltd v Kriek (4670/2012) [2013] ZAFSHC 204 (21 November 2013)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
.................................................................................................................................
.........................
Case No.: 4670/2012
In the matter
between:-
PIONEER HI-BRED RSA
(PTY) LTD
..........................................
Plaintiff
and
J G KRIEK
...............................................................................
Defendant
HEARD ON: 25 OCTOBER
2013
JUDGMENT BY: SESELE,
AJ
DELIVERED ON: 21
NOVEMBER 2013
[1] The plaintiff raised
exceptions to the plea and the counterclaim in that both lack
averments which are necessary to sustain
a defence and a cause of
action, respectively, alternatively, that same are vague and
embarrassing for various reasons.
[2] The plaintiff sued
the defendant for R305 471,80, interest and costs being in
respect of the sale and delivery of goods,
namely, maize and soya
seed during or about September 2011 to December 2011.
[3] The defendant entered
appearance to defend on 13 December 2012 whereafter the plaintiff
filed its declaration on 1 March 2013.
[4] The opposed
application for summary judgment was set down for hearing on 24
January 2013 and by agreement an order was granted
for the defendant
to defend the matter. The costs were ordered to be costs in the main
action.
[5] The plaintiff filed
the notices of exception in respect of both the plea and the
counterclaim on 5 June 2013. The defendant
did not remove the cause
of the complaint.
[6] Further notices of
exception were filed on 4 July 2013 whereafter the same were set down
for hearing.
[7] There was no
appearance for the defendant at the hearing.
[8] Mr Pienaar, for the
plaintiff, submits,
inter alia
, that the reasons for the
exceptions are the following:
8.1. The defendant in his
plea makes reference to a discussion between the plaintiff’s
representative and the defendant’s
representative, but it is
not alleged that an agreement was made arising from the discussion.
8.2. In both the plea and
the counterclaim the defendant alleges he suffered consequential
damages of R2 300 000,00 as
a result of the plaintiff’s
unlawful conduct.
8.3. The allegation
relating to quantum does not comply with Rule 18(10), which provides
that
“
a plaintiff
suing for damages shall set them in such a menner as will enable the
defendant reasonably to assess the quantum thereof”.
8.4. The amount in both
the plea and counterclaim is not set out in a manner to enable the
plaintiff to reasonably determine how
it is calculated –
Nel
and Others NNO v McArthur and Others
2003
(4) SA 142
(T) at 146F – 148I.
8.5. It is not alleged in
the plea that the plaintiff was negligent nor whether the damages
were suffered as a result of the breach
of contract nor is it clear
whether the defendant’s defence is based in contract or in
delict.
8.6. Where the same fact
can give rise to a claim for damages in delict and in contract, a
party must choose which cause of action
he wishes to pursue –
Holtzhausen v Absa Bank Ltd
2008 (5) SA 630
(SCA) at paras [5] – [8].
8.7. The breach of a
contractual duty is not
per se
wrongful
for purposes of Aquillian liability –
Freddy
Hirsch Group (Pty) Ltd v Chickenland (Pty) Ltd
2011
(4) SA 276
at 292 para [33].
8.8. Negligent causation
of pure economic loss is not regarded as
prima
facie wrongful. There must be a legal duty on
a party for it to be wrongful. The imposition of the legal duty is a
matter for judicial
determination involving the criteria of public or
legal policy –
Trustees, Two Oceans
Aquarium Trust v Kantey & Templer (Pty) Ltd
2006
(3) SA 138
(SCA) at 143, para [10] to 146 para [12].
8.9. The defendant’s
claim based on negligence relying wholly on the plaintiff’s
breach of contract is not sustainable
–
Lillicrap,
Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd
1985 (1) SA 475
(A) at 500 – 501.
8.10. I have considered
the facts and Mr Pienaar’s arguments and conclude that the
plaintiff’s exceptions must be upheld
and the plea as well as
the counterclaim are struck out.
[9]
ORDER
9.1. The exceptions
against both the plea and the counterclaim are upheld with costs.
9.2. The plea and the
counterclaim are struck out.
9.3. The defendant is
granted leave to amend the plea and the counterclaim within 10 days
from the date of this order.
9.4. Should the defendant
fail to file the amended plea and counterclaim within 10 days from
the date of this order, the plaintiff
is authorised to apply for
judgment against the defendant.
________________
L.M.S. SESELE, AJ
On behalf of the
plaintiff: Adv C.D. Pienaar
Instructed by:
Rossouws Attorneys
BLOEMFONTEIN
On behalf of the
defendant: No appearance
/spieterse