Thabakholo Landscaping (Pty) Ltd v Hydromulch (Pty) Ltd and Another (496/05) [2006] ZASCA 124; [2006] SCA 152 (RSA) (30 November 2006)

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Thabakholo Landscaping (Pty) Ltd v Hydromulch (Pty) Ltd and Another (496/05) [2006] ZASCA 124; [2006] SCA 152 (RSA) (30 November 2006)

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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
Case No: 496/05
NOT REPORTABLE
In the matter
between:
THABAKHOLO
LANDSCAPING (PTY) LTD APPLICANT
v
HYDROMULCH (PTY)
FIRST RESPONDENT
NOFFPROP
PROPERTY INVESTMENTS
(PTY) LTD
SECOND RESPONDENT
Coram: Navsa,
Conradie JJA, Cachalia AJA
Heard: 16 November
2006
Delivered: 30
November 2006
Summary: Where an
exception to a pleading is taken on the basis that the pleading
discloses no cause of action, the exception will
not succeed unless
no cause of action is disclosed on all reasonable constructions of
the pleading in question.
Neutral
citation: This case may be cited as
Thabakholo Landscaping v
Hydromulch
[2006] SCA 152 (RSA)
_____________________________________________________________________
JUDGMENT
___________________________________________________________
CACHALIA AJA
[1] This is an
application for leave to appeal against an order of the Pretoria High
Court (Legodi J) upholding the respondents’
objection to the
applicant’s proposed amendment of its counterclaim, leave having
been refused by that court. It comes before
us by a direction of
this court, in terms of s 21(3)
(c)
(ii) of the Supreme Court
Act 59 of 1959, that the application for leave to appeal is referred
to oral argument and that the parties
be prepared, if called upon to
do so, to address this court on the merits.
[2] The respondents
issued summons against the applicant in which they claimed inter alia
payment of the sum of R204 693,69. The claim
arises from an
agreement, annexure ‘A’, attached to the particulars of claim.
The applicant then filed a plea and counterclaim
to which the
respondents gave notice in terms of Rule 23(1) of their intention to
except. When the applicant failed to respond to
the notice, the
respondents filed an exception to the applicant’s plea and
counterclaim. As a result the applicant notified the
respondents of
its intention to amend the plea and counterclaim. The respondents
then gave notice in terms of Rule 28(3) objecting
to the proposed
amendment. In response the applicant launched an application in terms
of Rule 28(4) for its plea and counterclaim
to be amended. The
respondents successfully opposed the application in the court below –
hence the present proceedings.
[3] It was not clear
from the papers or from the judgment of the court below whether the
respondents’ objection related both to
the plea and the
counterclaim, or only the counterclaim. It was agreed before us that
there was in fact no objection to the plea.
[4] The respondents
contend in this court, as they did in the court below, that the
proposed amendment would render the counterclaim
excipiable for lack
of a cause of action. This, so they contended, was because the
proposed counterclaim relies upon another agreement,
annexure ‘B’,
which predates annexure ‘A’, and because any claims based on the
former were expressly excluded by the latter.
[5] Before I deal
with this contention it is important to point out that the
applicant’s proposed amendment sought to introduce
seven separate
and distinct claims against the first respondent (no relief is sought
against the second respondent). These were:
‘
5.1 A
claim for an order compelling first respondent to comply with its
obligations in terms of clause 4.5 of annexure “A”.
5.2 A claim for an
order compelling first respondent to comply with its obligations in
terms of clause 15.1 of annexure “A”.
5.3 A claim for an
order compelling first respondent to comply with its obligations in
terms of clause 15.4 of annexure “A”.
5.4 A claim for
payment of the amount of R150 773,59 arising from clause 9 of
annexure “A”.
5.5 A claim for
payment of the amount of R14 919 019.92 arising from annexure “A”.
This was disputed by respondents.
5.6 An alternative
claim for payment of the amount of R14 919 019.92 is based on an
alleged wrongful and intentional appropriation
of the amount of R14
919 019.92 by first respondent.
5.7 A claim for a
declaratory order that applicant is not indebted to first respondent
in the amount of R849 535.00 as reflected in
the financial statement
furnished by first respondent to applicant.’
[6] Of the seven
claims, only that referred to in para 5.5 arguably, arises from
annexure ‘B’. The court below did not deal with
each of the seven
claims separately, as it should have done. The court also appears to
have confused annexure B to the particulars
of claim, with annexure
‘B’ to the proposed amended counterclaim. Annexure B to the
particulars of claim is the document which
sets out the calculation
of the amount claimed in the summons. Annexure ‘B’ to the
counterclaim is the contract which predates
annexure ‘A’. This
confusion led the court to conclude, erroneously, that the claim for
R150 773.59 was excluded by annexure
‘A’.
[7] It
follows that the court below erred in upholding the objection to the
counterclaim in so far as it relates to 5.1, 5.2, 5.3,
5.4, 5.6 and
5.7. I turn to deal with the main issue in this appeal, whether the
remaining part of the proposed counterclaim would,
if allowed, be
excipiable because it
purports
to introduce a claim that is excluded expressly by the terms of
annexure ‘A’. This objection relates only to para 5.5,
the claim
for payment of the amount of R14 919 019.92.
[8] The clauses in
annexure ‘A’, which the respondents rely on are:
‘
3.4.1 In the last
clause of the preamble thereof:
“AND
WHEREAS there is in existence agreements between HYDROMULCH,
THABAKHOLO and NYATHI, the parties have agreed that by their
signature hereto,
such
agreements will be cancelled and be of no further force and effect
.”
(My
emphasis.)
3.4.2 In clause 17
thereof:
“17. WAIVER/CLAIMS
17.1 . . .
17.2 Save
for what is contained herein, the parties to this agreement will have
no
further claims
one against the
other in respect of any association, employment, rights, damages or
from whatsoever other cause arising, [unless]
same is contained in
this agreement.”
(My
emphasis.)
[9] It
is common cause that annexure ‘B’ predates annexure ‘A’ and
that it is one of the agreements
referred to in the last clause of the preamble. The applicant
contends that its accrued rights arising
from annexure â€˜B’
were not extinguished by the above clauses.
[10] I do not intend
to embark on an analysis of either contract. This is because I think
that the construction the applicant places
on annexure ‘A’ is at
least arguable. It is trite that an exception will not succeed unless
no cause of action is disclosed on
all reasonable constructions of
the pleading in question. That being so, I think it would have been
prudent for the court below to
allow the exception to stand over for
decision at the trial of the matter.
[11] It follows that
the appeal must succeed. I make the following order:
(i) The applicant is
granted leave to appeal.
(ii) The appeal is
upheld.
(iii) The
respondents are jointly and severally ordered to pay the costs of the
application for leave to appeal and also the costs
of the appeal.
(iv) The order of
the court below is set aside and replaced with the following order:
The defendant’s
plea and counterclaim in the above matter is amended in the respects
set out in defendant’s notice of amendment
of its plea and
counterclaim dated 10 February 2005;
The defendant is
ordered to pay the costs of the application for amendment in terms of
Rule 28(4) on the basis of an unopposed application,
but the
plaintiffs, jointly and severally, the one paying the other to be
absolved, are ordered to pay the costs occasioned by their
opposition
to the application for amendment.
_____________
A
CACHALIA
ACTING
JUDGE OF APPEAL
CONCUR:
NAVSA JA
CONRADIE
JA