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2012
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[2012] ZANCHC 33
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Molema Projects and Developers CC v L F Bantjies Civil t/a Elcon Civil (853/2011) [2012] ZANCHC 33 (17 February 2012)
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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape High
Court, Kimberley)
Case Nr: 853/2011
Case Heard:
10/02/2012
Date delivered:
17/02/2012
In
the matter between:
Molema Projects and
Developers CC
….................................................
PLAINTIFF
and
L F Bantjies Civil
t/a Elcon Civil
…....................................................
RESPONDENT
Coram: Olivier J
JUDGMENT
Olivier J:
The defendant, L F
Bantjies Civil CC (t/a Elcon Civil), has excepted to the particulars
of claim of the plaintiff, Molema Projects
and Developers CC, on the
basis of it being vague and embarrassing.
The
plaintiff’s attorney, Mr Kgotlagomang, argued
in
limine
that
the exception should be dismissed because it was filed three days
late. There is no merit in this point. As pointed out by
mr Burger
SC, counsel for defendant, an exception to particulars of claim is a
pleading and in the absence of a notice of bar
the defendant is
entitled to proceed with the exception
1
.
There is even less merit in Mr Kgotlagomang’s reply that the
defendant must be deemed to have waived its right to file
an
exception. A delay of only three days would not in these
circumstances justify such an inference.
The
cause of action is basically the
conditio
indebiti
,
it being alleged
2
that
the defendant overpaid the plaintiff in the amount of R234 176,37
3
.
It is also alleged that this was caused by a
bona
fide
and
reasonable mistake of fact and in circumstances where there had been
no obligation to pay this amount to the defendant.
In
paragraphs 3 to 9 of the particulars of claim the plaintiff clearly
intended to plead facts to sustain the allegation that
the payment
had been
sine
causa
.
It was alleged that the parties had concluded a written contract in
terms of which the defendant would subcontract for the plaintiff,
at
84 % of the amounts paid to the plaintiff by De Beer Consolidated
Mines (“
the
owner
”
)
4
.
The first complaint
raised by the defendant, in paragraphs 1 and 1.1 of the exception,
is basically that the purported written
contract (annexure A to the
particulars of claim) contains no provision to the effect that the
defendant would be entitled to
84 % of the remuneration
received by the plaintiff.
This is clearly so. In
fact, the contents of the written contract are in effect difficult
to reconcile with an allegation that
the defendant’s
remuneration would amount to 84 % of that received by the plaintiff.
In clause 2.1.1 reference is made
to fixed amounts to be paid to the
defendant for “
site-establishment
”. There is no
indication at all that the plaintiff would also be remunerated for
site-establishment and that the amounts
mentioned in clause 2.1.1
would constitute 84 % (or any other agreed percentage) thereof.
In clause 2.1.2
reference is made to the total amounts payable to the defendant in
respect of the construction of “
the works
”
involved in the two construction contracts. Again these amounts are
on the face of them fixed and there is no indication
of them
constituting 84 % (or, once again, any other agreed percentage) of
payments received by the plaintiff in it capacity
as the contractor.
In
paragraphs 6 to 9 of the particulars of claim it is basically
alleged that the plaintiff rendered an account or invoice for
an
amount of R61 867,80 to the owner (after initially rendering
one for an amount of R207 936,00 on the strength of
an
allegedly erroneous account or invoice rendered to the plaintiff by
the defendant
5
),
and that the defendant was then “
in
terms of agreement
”
only
entitled to an amount of R53 206,30 (on the basis of the last
account rendered by the plaintiff to the owner).
Although this was not
raised by the defendant in its exception, it is clear that the
amount of R53 206,30 would not amount
to 84 % of the amount of
R61 867,80 (the final amount of that particular account or
invoice).
What was, however,
raised in the exception is that it is impossible to reconcile the
amount of R234 176,37, alleged in paragraph
10 to be the amount
overpaid, with the allegations in paragraphs 6 to 9 of the
particulars of claim.
Once
again, this is quite correct. If an amount of R481 919,66 was
paid to the defendant, as alleged in paragraph 10, while
the
defendant had only been entitled to an amount of R53 206,30, as
alleged in paragraph 9, the difference and the amount
of overpayment
would have been R428 713,36, and not R234 176,37
6
.
These defects make it
impossible to discern how the amount claimed (R234 176,37) is
made up, on what basis it is alleged
that the plaintiff had been
under no obligation to pay it and what error of fact had led to the
alleged overpayment.
In my view there is a
further defect in the particulars of claim. The amount of
R481 919,66 allegedly paid to the defendant
is far less than
the total amounts payable to the defendant in terms of the written
contract. It is not clear whether the work
has been completed and
finalised. If so, the defendant would, if no other payments had been
made, be entitled to far more than
the amount of R481 919,66.
If not, the plaintiff’s case should probably have been that
the defendant received remuneration
in the form of progress
payments. No such allegation was made and the only express mention
in the contract of the issue of progress
payments is to the effect
that the plaintiff would receive payment from the owner as the work
progressed.
Be that as it may, I
am satisfied that the allegations in the particulars of claim are
indeed vague and embarrassing, and in fact
contradictory, on the
grounds set out in the exception. The defendant is prejudiced. The
only conceivable way in which it could
approach these allegations in
a plea, would be to simply deny all of them, which would render the
plea excipiable?
It follows that I am
of the view that the exception should be upheld. I am not, however,
prepared to dismiss the claim, as requested
on behalf of the
defendant. In my view the plaintiff should be granted one more
opportunity to amend its particulars of claim.
It is, however, a fact
that the plaintiff was afforded this opportunity to amend, when
confronted with the defendant’s notice
in terms of Uniform
Rule 23 (1). There can therefore be no doubt that the plaintiff
should pay the costs of the exception.
In the premises I make
the following order:
The exception is
upheld with costs.
The plaintiff is
granted leave to amend its particulars of claim within 15 days
hereof.
______________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
For the Plaintiff: Mr C
Kgotlagomang
Towel & Groenewaldt,
KIMBERLEY
For the Respondent: Adv A H
Burger SC
Instructed by: Engelsman Magabane
Inc, KIMBERLEY
1
Erasmus:
Superior Court Practice
, Farlam
et
al
, B1-158;
Landmark
Mthatha (Pty) Ltd v King Sabata Dalindyebo Municipality and Others:
In re
African
Bulk Earth Works (Pty) Ltd v Landmark Mthatha (Pty) Ltd and Others
2010 (3) SA 81
(ECM) paras [10] – [13]
2
i
n
paragraph 10 of the particulars of claim
3
a
llegedly
the difference between the amount of R481 919,66 paid and the
amount of R247 743,48 payable
4
paragraphs
4 and 5 of the particulars of claim
5
the
repeated reference to an “
amount
”
which had been rendered is clearly a typing error
and was probably intended to refer to an account.
6
The
amount alleged in paragraph 10, and which is in any event not the
precise difference between the R481 919,66 allegedly
paid and
the R247 743,48 allegedly payable