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[2012] ZAGPPHC 348
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Jazzspirit 101 (Pty) Ltd v Cole (38801/2012) [2012] ZAGPPHC 348 (7 December 2012)
NOT
REPORATBLE
IN
THE HIGH COURT OF SOUTH AFRICA (NORTH GAUTENG, PRETORIA)
CASE
NO: 38801/2012
DATE:07/12/2012
In
the matter between:
JAZZSPIRIT
101 (PTY)
LTD
...........................................................................................
Plaintiff
and
MILLER
RORY
COLE
......................................................................................................
Defendant
JUDGMENT
MAKGOKA. J:
[1]
This judgment has taken inordinately long to deliver. A number of
factors led to this, mostly my personal circumstances, well
beyond my
control. Any hardship and inconvenience to the parties is deeply
regretted.
[2]
The defendant has excepted to the plaintiff’s particulars of
claim on the ground that the particulars are vague and embarrassing,
and/or lack the averments which are necessary to sustain a cause of
action. The defendant had invited the plaintiff in terms of
Rule
23(1) of the Uniform Rules of Court, to remove the cause of the
complaint, which the plaintiff declined to do. The plaintiff
opposes
the exception.
[3]
The parties concluded a written building contract (the contract) on
19 October 2004 in terms of which the plaintiff was to construct
and
complete the interior of a unit in a sectional title scheme, on
behalf of the defendant, for a contract sum of R239 000, which
was to
be paid in monthly instalments, in accordance with the value of the
work as certified by a quantity surveyor. Clause 12.2
of the contract
provides:
‘
A
certificate signed by the quality Surveyor specifying the amount due
by the purchaser to the developer shall be sufficient proof
of any
amount due to the developer in terms of this agreement and may be
used by the developer for the purposes of obtaining judgment
whether
by default or otherwise, summary judgment or provisional sentence
against the purchaser.
[4]
The plaintiff issued summons against the defendant, claiming an
interim payment of R119 500 in terms of the contract. It based
its
claim on a document titled ‘Payment Certificate Issued in terms
of 13.0 of the JBCC Minor Works Agreement’. In
terms of clause
2.8 of the building contract, the quantity surveyor is identified as
a certain C.P. De Leeuw. However, in the document
relied on by the
plaintiff, the name of the “principal agent’’ is
recorded as ‘De Leeuw Johannesburg (Pty)
Limited’.
[5]
The gravamen of the defendant’s exception is that the document
referred to above, is not a quantity surveyor’s certificate.
It
was submitted that the document contradicted the plaintiff’s
allegations, resulting in the particulars of claim also not
setting
out a complete cause of action. Mr. Nel, counsel for the defendant,
contended that not only do the contradictions go the
very root of the
respondent’s claim, but that there can be no other possible
interpretation, than that the allegations put
forward by the
plaintiff are contradictory and mutually exclusive.
[6]
Pleadings must be read as a whole. In its exception the defendant
conveniently omits to mention the plaintiff’s allegation
that
not only was practical completion of the building works has been
achieved, but the plaintiff had finally completed the works.
To this
extent, the plaintiff alleges that the defendant had not given notice
of any defect in the building works requiring such
to be rectified.
On the contrary, the defendant notified the plaintiff in writing on
30 January 2009 of his satisfaction with the
works. In a document
tilted ‘Letter of Satisfaction’ (annexure “RCM3’)
the defendant states in paragraph
4 thereof that ‘Building
operations and improvements in the section in terms of (the) building
contract have been completed
to my satisfaction’. In my view,
this renders irrelevant, whether the impugned document qualifies as
quantity surveyor’s
certificate in terms of the contract.
[7]
The object of an exception is not to embarrass one’s opponent
or to take advantage of a technical flaw, but to dispose
of the case
or a portion thereof in an expeditious manner, or to protect oneself
against an embarrassment which is so serious as
to merit the costs
even of an exception
1
.
[8]
I therefore conclude that the defendant is well in a position to
plead to the plaintiff’s particulars of claim. The defendant’s
complaint relates to minor blemishes and unradical embarrassments.
Those can be cured by further particulars
2
.
The defendant’s exception does not raise any substantial
question of law which may have the effect of settling the dispute
between the parties. As a result, the defendant had to make out a
very clear case before his exception is allowed to succeed. In
my
view the defendant has not made such a clear case. I am also of the
view that the defendant invites this court to adopt an over-technical
approach. This was cautioned against by the Supreme Court of Appeal
in Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA 2006 (1) SA 461 (SCA) at para 3.
[9]
In the circumstances the exception falls to fail and it is dismissed
with costs.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
DATE
OF HEARING : 27 JUNE 2012
JUDGMENT
DELIVERED : 7 DECEMBER 2012
FOR
THE DEFENDANT (EXCIPIENT) : ADV GJ NEL
INSTRUCTED
BY : KAREN SHAFER ATTORNEY AND
SERFONTEIN
A TTORNEYS, PRETORIA
FOR
THE RESPONDENT (RESPONDENT) : ADV RF DE VILIERS
INSTRUCTED
BY : FRONEMAN, ROUX& STREICHER
ATTORNEYS,
PRETORIA
1
Barclays
Bank International Ltd v African Diamond Exporters (Pty) Ltd
(2)
1976 (1) SA 100 (W).
2
owell
v Bramwell-Jones and Others 1998 (1) SA 836 (W).