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[2012] ZAGPPHC 62
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Moreira v McLoughlin (A377/2011) [2012] ZAGPPHC 62 (15 May 2012)
NORTH GAUTENG HIGH COURT, PRETORIA
Case No: A377/2011
DATE:15/05/2012
REPORTABLE:
Electronic Reporting
In the matter between:
AMAVEL MOTA
MOREIRA
….....................................................................
Appellant
and
GEOFFREY KEITH
MCLOUGHLIN
............................................................
Respondent
JUDGMENT
MEYER, J
[1] This is an appeal against the finding of the lower court, which
is to the effect that the appellant’s counterclaim in
action
proceedings before that court does not disclose a cause of action.
[2] The appellant is the defendant in an action instituted against
him in the Magistrates’ Court, Pretoria and in which
proceedings he also instituted a claim in reconvention against the
respondent. The substance of his counterclaim reads as follows:
‘
4. Pursuant to the
written agreement of sale attached to plaintiff’s summons and
during December 2007, the parties reached
an oral agreement that
Plaintiff would pay Defendant occupational rent to the amount of R20
000.00 per month between the date of
occupation to date of transfer
of the property in plaintiff’s name. The dates of occupation
and registration are as alleged
in the summons.
5. Alternatively to paragraph 4
of the counterclaim, defendant avers that clause 4 of the agreement
of sale does not reflect the
common intention of the parties, in that
upon signing of the agreement the parties agreed that occupational
rent would be payable
where one party enjoys occupation while the
other party is still the registered owner, and that the amount would
be the subject
of a later verbal agreement between the parties, and
that through common error between the parties they failed to record
same in
paragraph 4 of the agreement of sale.
6. Despite demand plaintiff has
failed to pay occupational rent at all, and is indebted to defendant
in the sum of R27 741.92.
WHEREFORE defendant claims from
plaintiff:
1. Payment of the amount of R27
741.92
2. Interest thereon calculated
at the rate of 15.5% per annum a tempore morae until date of payment.
3. Costs of suit.
4. Further and/or alternative
relief, including rectification of the agreement of sale as per
paragraph 5 of the counterclaim together
with prayers 1 to 3 above.’
[3] The written agreement concluded between the parties to which
reference is made in the counterclaim is a printed form at the
head
of which appears the name of the estate agents through which the
transaction was negotiated and clinched. Below that appear
the words
“Offer to Purchase (Re-Sale)” and then follows the terms
of the contract with blank spaces in which certain
particulars were
filled in with a pen. Clause 4 reads:
‘
4. Occupation
Occupation of the property
shall be given to the purchaser on ______________. If the date of
occupation does not coincide with
the date of registration of
transfer of the property to the purchaser, the party enjoying
occupation of the property whilst it
is registered in the name of the
other party shall, in consideration thereof, and for the period of
such occupation, pay to the
other party a rental of
R______________________________ (…….…………….….…………………………)
monthly in advance from date of occupation. No tenancy shall be
created by the purchaser taking occupation prior to registration
of
transfer and the purchaser shall immediately vacate the property on
cancellation of the sale whatever the reason thereof. The
purchaser
shall not be entitled to make any alteration or additions to the
property prior to registration of transfer.’
The word
“TRANSFER”
was filled into the first
space and clause 4 accordingly provides for occupation of the
property to be given to the purchaser,
who is the respondent, on
registration of transfer thereof. The other space which forms part
of the provision relating to the
payment of occupational rent was
left blank. Also presently relevant is clause 11, which provides
that the ‘… agreement
constitutes the entire contract
between the parties and that no agreement ‘…to cancel,
alter or add to…’
it ‘…shall be of any
force or effect unless signed by both seller and purchaser.’
[4] The averments in the particulars of claim that the respondent
took occupation of the property on or about 26 January 2008 and
that
registration of transfer thereof into his name took place on 12 March
2008 are incorporated by reference into the counterclaim.
[5] Further particulars were requested by the respondent to enable
him to plead to the counterclaim. The particulars furnished
elaborate on the alleged oral agreement and alternative plea of
rectification. The appellant’s reply in response to the
respondent’s request for him to state the precise words in
terms of which he alleges that the written agreement of sale falls
to
be rectified is to the effect that the words
‘a sum and
subject to any conditions to be agreed verbally between the parties’
are to be filled in the space which was left blank in clause 4 of the
written agreement..
[6] The respondent did not deliver an exception to the appellant’s
counterclaim. Instead a plea was delivered in which the
averments
contained in paragraphs 4 and 5 of the appellant’s counterclaim
were denied.
[7] On 14 February 2011 at 15h10, the respondent’s attorneys of
record served a notice in terms of Rule 29(4) of the Magistrates’
Court Rules of Court on the appellant’s attorneys of record in
terms whereof the appellant was notified that the respondent
intends
to make application under the provisions of that Rule at the
commencement of the trial on 16 February 2011 for an order
declaring
the defendant’s counterclaim bad or unsustainable in law on the
grounds set out in the notice. The respondent’s
application
was made at the commencement of the trial. The trial court was
addressed by the legal representative for each party
whereupon
judgment was given in favour of the respondent on that question.
[8] In substance the respondent’s objection to the appellant’s
counterclaim amounts to an exception that the counterclaim
discloses
no cause of action. Counsel for the appellant, Ms MG Goia, submitted
that the respondent should have delivered an exception
in terms of
the provisions of Rule 19 of the Magistrates’ Court Rules of
Court and the trial court should not have entertained
the
respondent’s exception in terms of Rule 29(4)
in limine
and
separately from the other questions.
[9] Rule 29(4) of the Magistrates’ Courts Rules of Court reads:
‘
If, in any pending
action, it appears to the court
mero motu
that there is a
question of law or fact which may conveniently be decided either
before any evidence is led or separately from
any other question, the
court may make an order directing the disposal of such question in
such manner as it may deem fit and may
order that all further
proceedings be stayed until such question has been disposed of, and
the court shall at the request of any
party make such order unless it
appears that the questions cannot conveniently be decided
separately.’
[10] The wording of Rule 29(4) of the Magistrates’ Court Rules
of Court is almost identical to that of Rule 33(4) of the
Uniform
Rules of Court. Exceptions are governed under Rule 19 of the
Magistrates’ Court Rules of Court and its wording is
also
almost identical to that of Rule 23 of the Uniform Rules.
[11] The appellant’s counsel referred us to the following
dictum
by Stegmann, J in
Kriel v Hochstetter House
(Edms) Bpk
1988 (1) SA 220
(T), at pp 230H – 231C:
‘
Dit is na my mening
nodig om n onderskeid te tref tussen regspunte wat behoorlik
in
limine
geopper mag word, en regspunte wat by wyse van eksepsie
geneem behoort te word. Eksepsies word deur Reël 23 van die
Eenvormige
Hofreëls gereël. Waar ‘n pleitstuk vaag
en verwarrend is, of beweringe mis wat nodig is om die aksie of
verweer
te staaf, kan die teenparty ‘n eksepsie lewer.
Ingevolge Reël 23(3) moet die gronde waarop die eksepsie berus
in die
eksepsie aangegee word. Die party wie se pleitstukke by wyse
van eksepsie aangeval word moet gevolglik skriftelike kennis van die
eksepsie en die gronde waarop dit berus vooraf ontvang.
Wat betref regspunte van so ‘n
aard dat dit by n verhoor
in limine
geopper mag word, bestaan
daar in die Hofrëels geen soortgelyke vereiste nie. In die
praktyk word dit egter deur regspraktisyns
goed verstaan dat een
party nie sy teenstaander met n onverwagse regspunt
in limine
mag verras nie.
Die vraag ontstaan of die
regsvraag wat die verweerder by die aanvang van die verhoor geopper
het behoorlik
in limine
betoog kon word, of dit wel by wyse
van eksepsie geopper moes gewees het.
…
Na my mening is dit duidelik
dat die verweerder se sogenaamde punt
in limine
in wese ‘n
eksepsie was. Geen behoorlike kennis daarvan, of van die gronde
waarop dit berus het, is ingevolge Reël
23 aan die eiser gegee
nie. Dit moes nooit as punt
in limine
by die verhoor geopper
gewees het nie: die verweerder moes kennis van sy voorneme om ‘n
eksepsie laat (dws na verstryking
van die tydperk wat daarvoor
vasgestel is) te lewer, gegee het; en hy moes ook die gronde waarop
dit berus het behoorlik in die
kennisgewing uiteengesit het.’
[12] In
Imprefed (Pty) Ltd v National Transport Commission
1990
(3) SA 324
(T), this court, at the request of the defendant in that
case, permitted a plea of prescription and three exceptions to
different
claims in the summons to be entertained in terms of the
procedure under Rule 33(4) of the Uniform Rules. Botha, J said the
following,
at pp 331J – 332A:
‘
With regard to whether
the exceptions should be entertained at all in terms of Rule 33(4) I
am mindful of what was said in
Kriel v Hochstetter House (Edms)
Bpk
1988 (1) SA 220
(T) at 230 and 231. In my view, however, the
considerations mentioned in that case do not obtain here.
Defendant’s objections
against the particulars of claim were
set out in the plea and at the last pre-trial conference notice,
albeit short notice, of
the exceptions was given. As a matter of
convenience it seems that claim A, B and C will proceed anyway. If
the exceptions succeed
it will have the effect of curtailing the
duration of the trial. I am therefore prepared to approach the
exceptions on the basis
that they may properly be considered in terms
of Rule 33(4).’
[13] In
Allen & Others NNO v Gibbs & Others,
1977(3)
SA 212 (S.E.C.L.D.), at pp 215H – 216C, Kannemeyer, J said
this:
‘
The question remains
whether it should have been taken. In
Alexander
v. Armstrong,
1879
Buch. 233 at p. 239, where it was
“
clear that the proper
mode of meeting the present action would have been by way of
exception to the plaintiff’s declaration,”
the successful defendant was
only allowed
“
such costs as he would
have incurred if he had excepted to the plaintiff’s
declaration.”
In
Scheepers
and Nolte v Pate
,
1909 T.S. 353
at p. 360, WESSELS, J. (as he then was), remarked
“…
..it is the duty
of a litigant to take the most expeditious course to bring the
litigation to a conclusion. He should take such
exceptions in limine
as will dispose of the dispute or bring the proceedings instituted to
a conclusion.”
Again, in
Algoa
Miling Company v. Arkell and Douglas
,
1918 A.D. 145
at p. 159, INNES C.J., is reported as saying:
“
The declaration as
drafted discloses no cause of action, and should therefore have been
excepted to. Had that been done there would
have been a speedy end to
the litigation, and the heavy costs subsequently incurred would have
been unnecessary.”
However there is no inflexible
rule in this regard, and the Court still has a discretion: see
Cohen
v. Haywood
,
1948 (3)
S.A. 365
(A.D.) at pp. 374 – 375, where GREENBERG, J.A., said:
“
in my opinion the
question in each case is whether the party who did not take the
exception was unreasonable in failing to do so.
If he was, then he
should not be entitled to the costs unnecessarily incurred in the
case going to trial. Ordinarily it would
be unreasonable of a party
not to take an exception which, if allowed, would dispose of the
case, but there may be circumstances
which make it impossible to say
that the omission to take the exception connotes unreasonableness.’
[14] There is accordingly no inflexible rule that questions of law
arising from pleadings and capable of being resolved on exception
may
not be the subject of an application under Rule 33(4) in the High
Court or under Rule 29(4) in the Magistrates’ Courts.
A party
who has failed to deliver an exception under the provisions of Rule
19 of the Magistrates’ Court Rules of Court
at the appropriate
stage and at the trial invokes the procedure under Rule 29(4) to take
the exception, may be permitted to do
so, but, depending on the
circumstances, be mulcted in costs.
[15] The exception in this instance should have been taken at an
earlier stage after the appellant’s counterclaim had been
filed
and within the period allowed for the filing of the respondent’s
plea thereto. The considerations mentioned in
Kriel
do,
however, not obtain in this matter. The respondent notified the
appellant in advance of the commencement of the trial, albeit
short
notice, of his intention to request the trial court to entertain the
exception
in limine
under the provisions of Rule 29(4) and of
the grounds upon which it was founded. The trial court did not make
an order as to costs
and the authorities to which I have referred
should guide it when it is called upon to make an appropriate costs
order in due course.
[16] The oral agreement pleaded in terms of the counterclaim is one
that was entered into after the written agreement had been
concluded.
The respondent’s contention, in terms of his notice in terms
of Rule 29(4) of the Magistrates’ Rules of
Court, was that the
oral agreement fell foul of the provisions of the written agreement.
I have quoted the relevant clause earlier
on in this judgment. It
provides that no agreement to cancel, alter or add to the written
agreement shall be of any force or effect
unless signed by both
parties. A non-variation clause ‘… curtails freedom to
contract and must hence be restrictively
interpreted.’
Per
Van Heerden, DCJ in
Randcoal Services Ltd v Randgold and
Exploration Co Ltd
[1998] ZASCA 45
;
1998 (4) SA 825
(SCA), at p 841 E-F. I am of
the view that on a restrictive interpretation of the non-variation
clause in this instance the alleged
oral agreement falls foul of it
and is accordingly of no force and effect. See:
SA Sentrale
Ko-op Graanmaatskappy Bpk v Shifren en Andere
1964 (4) SA 760
(A), at pp 766H – 767B. The alleged oral agreement alters the
written agreement insofar as it provides for occupation of
the
property to be given to the purchaser or to be retained by the seller
before or after registration of transfer of the property
into the
name of the purchaser, and it adds to the written agreement insofar
as it provides for the payment of occupational rental.
[17] The appellant’s counsel submitted that the trial court
failed to take cognizance of the appellant’s alternative
claim
for rectification as contained in paragraph 5 of the appellant’s
counterclaim. In
Leyland (SA) (Pty) Ltd v Rex Evans Motors (Pty)
Ltd
1980 (4) SA 271
(W), at p 272F – G and at p 273C,
Melamet, J said the following:
‘
A written agreement
which fails to express accurately the true intention of the parties
may be rectified so as to make it accord
with the parties’
common intention. If the party seeking rectification can prove an
actual agreement anterior to or contemporaneous
with the writing with
which the written agreement, owing to a mutual mistake, fails to
conform, the Court will rectify the erroneous
instrument.
Weinerlein
v Goch Buildings Ltd
1925 AD 282
at 288;
Meyer v Merchants’
Trust Ltd
1942 AD 244
at 253 and 256;
Von Ziegler and Another
v Superior Furniture Manufacturers (Pty) Ltd
1962 (3) SA 399
(T)
at 409E.
…
.
A party who seeks rectification
is not seeking to vary the written agreement but is merely seeking to
place the true agreement before
the Court and to have it interpreted
and applied according to its true terms. Rectification does not
constitute a “variation”
of the written agreement as
envisaged in clause 24, but rather a correction or completion of it
so as to correctly reflect what
the parties actually agreed.’
[18] The non-variation clause in this instance is also not a bar to
the appellant’s claim for rectification. The rectification
pleaded in paragraph 5 of the appellant’s counterclaim
constitutes a correction or completion’ of clause 4 of the
written agreement. The appellant avers an actual agreement anterior
to or contemporaneous with the writing - that occupational
rent would
be payable where one party enjoys occupation while the other party is
the registered owner of the property and that
the amount would be the
subject of a later verbal agreement between them - with which actual
agreement their written agreement,
owing to a mutual mistake, fails
to conform. These averments on their own – without averring
the conclusion of such later
verbal agreement – are
insufficient to disclose a cause of action in support of the
appellant’s claim for payment of
occupational rent.
[19] Averments relating to the conclusion of a subsequent oral
agreement that the respondent would pay occupational rent to the
appellant in the sum of R20, 000.00 per month between the dates of
the respondent’s taking occupation of the property and
the
registration of transfer thereof into his name are to be found in
paragraph 4 of the counterclaim. The averments contained
in
paragraphs 5 of the counterclaim, however, are pleaded in the
alternative to those contained in paragraph 4 thereof. The appellant
accordingly relies on either the alleged subsequent oral agreement,
which on its own is of no force and effect, or on an actual
agreement
anterior to or contemporaneous with the conclusion of the written
agreement with which actual agreement their written
agreement fails
to conform and hence the claim for rectification of the written
agreement, which on its own is insufficient to
disclose a cause of
action in support of his claim for payment of occupational rent.
[20] In the result the following order is made:
The appeal is dismissed with costs.
PHATUDI, J
[21] I agree with Meyer, J.
P.A. MEYER
JUDGE OF THE HIGH COURT
PRETORIA
A.M.L. PHATUDI
JUDGE OF THE HIGH COURT
PRETORIA
15 May 2012
Date of Hearing: 15 May 2012
Date of Judgment: 15 May 2012
Counsel for the appellant: Adv M.G. Gioia
Attorneys for the appellant: Brian Kahn Inc.
Craighall Park, Johannesburg
C/o Friedland Hart Solomon & Nicolson
Monument Park, Pretoria
Counsel for the respondent: Adv S Bunn
Attorneys for the Respondent: Van Eden Attorneys
Eldoraigne, Centurion