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[2012] ZAKZDHC 37
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Rohm and Haas SA (Pty) Ltd v 3579 Scnafer Road (Pty) Ltd t/a Pinio Design and Another (8293/2011) [2012] ZAKZDHC 37 (29 June 2012)
IN THE KWAZULU-NATAL
HIGH COURT, DURBAN REPUBLIC OF SOUTH AFRICA
CASE NO.: 8293/2011
In the matter
between
ROHM
AND HAAS SA (PTY) LTD
….............................................
PLAINTIFF
and
3579
SCNAFER ROAD (PTY) LTD t/a
PINIO
DESIGN
….............................................................
FIRST
DEFENDANT
ALTO
BUSINESS PARK (PTY) LTD
….......................
SECOND
DEFENDANT
JUDGMENT
MOKGOHLOA
J
[1] The plaintiff
instituted action against the defendants for payment of certain
monies. The defendants are defending the claim
and have delivered a
notice in terms of Rule 23(1) of the High Court Rules. The defendants
maintain that the plaintiff failed to
remove the causes of complaint
as a result of which they delivered a notice of exception.
[2]
The particulars of the plaintiffs claim are that the plaintiff and
the first defendant entered into a written sale agreement
on or about
December 2004. The sale agreement was subject to a suspensive
condition that (he land surveyor procures an approved
sub-divisional
diagram
in
respect of the proposed sub-division within 15 months of the
signature of the agreement. Clause 8(c) of the aforesaid
agreement
provided
that if the suspensive condition was not fulfilled, the agreement
would become null and void. After the conclusion of the
sale
agreement and pursuant thereto, the plaintiff gave occupation of"
the proposed sub-division to the first defendant.
[3]
During or about July 2005 mid pursuant to the occupation given to the
fust defendant in terms of the sale agreement, the first
defendant
allowed the second defendant to lease the proposed sub-division to
Imana
Foods
SA (Ply) Ltd
(/imana').
[4] The land
surveyor did not procure an approved sub-divisional diagram in
respect of the proposed sub-division within 15 months
of the
signature of the sale agreement and accordingly the suspensive
condition was not fulfilled and the sale agreement became
null and
void.
[5]
Notwithstanding the fact that the agreement was void
ah
initio,
Imana
remained in occupation of the proposed sub-division. The first
defendant alternatively the second defendant received monthly
rental
from imana in terms of their lease agreement. The first defendant
v
alternatively,
the second defendant paid rental of R51 300 to the plaintiff from
July 2005 until June 2007 excluding August 2006
and September 2006,
and the plaintiff
accepted
such
payments as rental for the proposed sub-division. Neither the first
defendant nor
the
second
defendant paid rental from June 2007 to date.
[6|
The plaintiff submits that by virtue of the conduct and events
outlined in paragraph 5 above, the parties entered into u tacit
agreement of lease during July 2005, The terms of such
lease
being
that the first defendant,
alternatively
the
second defendant, would pay monthly rental to the plaintiff in
respect of the proposed subdivision in the amount of R51
300.
Furthermore, that the plaintiff permitted the defendants to sub-lease
the proposed sub-division lo Imana. Despite due cancellation
of the
tacit lease, Imana remained in occupation of the proposed
sub-division through its lease with the first defendant,
alternatively,
the second defendant. The plaintiff then claims rental
that the plaintiff would have obtained from another tenant had the
first
defendant, alternatively the second defendant vacated the
proposed sub-division or caused Imana to vacate the proposed
sub-division
after cancellation.
[7]
The
plaintiff
claims
in
the alternative, that, in the event it is found that there was no
tacit agreement of lease between any of the parties, then,
by virtue
of the fact thai the written sale agreement is void
oh
initio,
therefore
there exist no contractual
nexus
between
the plaintiff and the first defendant and
or
die
second
defendant. Consequently, neither the first defendant nor the second
defendant had the right or title to allow Imana occupation
of the
proposed sub-division or lo receive rental from Imana,
[8] The plaintiff
submits thai the first defendant alternatively the second defendant
received monthly rental from Imana in terms
of their lease agreement.
Therefore, according to the plaintiff, the First alternatively the
second defendant was enriched by receipt
of such rental at the
expense of the piaintiiT,
[9]
In the notice of exception the defendants
have
prayed
for an order that the exception be upheld with costs, the
plaintiffs
particulars
of claim set aside and that the plaintiff be given leave should it so
wish, to file amended particulars of claim within
a period to be
determined by this court,
[10] The defendants
have excepted to the plaintiffs particulars of claim on two grounds:
10.1. In respect of
Claim A ~ The defendants contend thai the particulars of claim are
vague and embarrassing on the grounds that
as the first defendant's
possession and occupation of the property from 1 July 2005 until
March 2007 was exercised in terms of
the written agreement of sale,
it is legally and factually untenable to rely on the tacit agreement
concluded in July 2005,
10.2.
In
respect
of
the
alternative
claim
based on an
unjustified
enrichment
- the first defendant contends that the particulars of claim lack
averments to establish its enrichment in that the fust
defendant was
not a party to the written lease agreement and had no entitlement
under the lease, to receive rentals
from
the
second defendant.
[11]
In an unreported case
of
Izinger
v
Nofineyr
and
4 Others
(7575/2010)
[2010]
/.AGP JHC 104 delivered on 4 November 2010,
Reyneke
AJ
stated
tile following on [4] and
'
4.
An
exception that a pleading is vague and embarrassing strikes at the
formulation, of the cause of action and its legal validity,
it
is
not directed at a
particular
paragraph
within
a
cause
of
action
but at the cause
of
action
as a whole, which must be demonstrated to be vague and embarrassing.
As was stated in Jowel
l
v 13ramweJl-Jones and othe
rs
1998[ 1 ] S
A
836
W at 9G5E
-H:
"I must
first ask whether the exception goes to the heart of the claim ami,
if so, whether it is vague and embarrassing to
the extent that the
defendant does not know the. claim he has to meet..."
5.
Vagueness amounting to embarrassment and embarrassment in turn
resulting in prejudice must be shown. Vagueness would invariably
be
caused by a defect or incompleteness
in
the
formulation and is therefore not limited to an absence of the
necessary allegations but also extends to the way
in
which
it is formulated. An exception will not be allowed, even if it is
vague and embarrassing unless the
excipient
will
be seriously prejudiced if compelled to plead to pleading against
which the objection lies.
1
[12]
Reyneke
AJ
referred
to and approved the following approach adopted in
Trope,
v South African Reserve Bank
1992
(3) SA 208
T at 221 A-E:
"An
exception to pleading on t
he
ground
that it is vague and embarrassing involves a two-fold consideration.
The first is
whether
thy
pleading lacks particularity to the extent thai it is vague. The
second is whether the vagueness causes embarrassment of such
that a
nurture
that
the
excipient is prejudiced (Quirtlan v MacOregor
1960 (4) SA 383
(D)
at
393E-H).
As
to whether there is prejudice, the ability
of
the
only,
nor indeed (he most important lest - see the remarks of Conrad re i
in F,evitan v
Newhaven
Holiday
Enterprises
CC
1991
(20
SA
297
(CO
at
298
G-H.
If
thai were the only test, the object of pleadings to enable parties to
come to trail prepared to meet each other's case and not
be taken by
surprise may
well
be
defeated.
Thus
it may be possible to plead to particulars of claim which can he read
in any one of (\ number of ways by simply denying the
allegations
made; likewise to a pleading which leaves one guessing as to its
actual
meaning.
Yyt there can be no doubt
that
such
a
pleading is
excipiahle
as
being vague and
embarrassing
see
Parow
Lands
(Pry) Ltd v Schneider 1952 (l)SA 150 (SWA)
at
152F-G
and
the
authorities
there
cited."
[13]
The plaintiff based its claim on the alleged tacit lease agreement
and not on The sale agreement which is void
ah
initio,
'ibis
is not vague and embarrassing and
the
defendants
arc not prejudiced at all. They can plead to
this
allegation
by either denying or confirming the existence of such tacit
agreement. See
Izinger
'$
ease
supra
at [5]
[14]
Regarding the second complaint, plaintilV alleges in paragraph 27
of
its
particulars of claim that;
"As
aforesaid, the
first
defendant
alternatively
the
second
defendant received monthly rental from IMANA for its occupation of
the proposed sub-division, as detailed in the lease which
is annexure
"B"
hereto
from and including July 2005 until and including February 20! 1 as
more fully set out in annexure
"C"
hereto,"'
[15]
It
further
alleges in paragraph 4 that, the Inst and second defendants share a
common
director,
auditors and has the same registered address. According to the
plaintiff, either the first defendant
alternatively
the
second defendant was enriched by receipt of such rental. The
defendant's duty is to persuade the court that upon every
interpretation
which
paragraphs 27 and 28 of the plaintiffs particulars of claim can
reasonably bear, no cause of action is disclosed. See
Francis
v Sharp and Others
2004
(3)SA 230(C) at 237 0.
[16|
Having slated the above,
I
am
not satisfied that the plaintiffs particulars of claim lack
particularity to the extent that it is vague and embarrassing that
the defendants should have difficulty in
pleading
thereto.
Not one of the grounds of exception that the
particular,
of
claim
are
vague
and
embarrassing is such that the defendants would be seriously
prejudiced if compelled to plead thereto.
Order
The exception is
dismissed with costs.
MOKGOHLOA,
J
COUNSEL
COUNSEL
FOR EXCIPIENTS (DEFENDANTS):
Advocate
S Miller
INSTRUCTED
BY: Bernard Vukic Potash & Getz
C/O
De Viiliers Evans & Petit
2m
Floor,
136 Victoria Embankment Durban
Ref:
PCombrink/oj/02B035012
COUNSEL
FOR THE RESPONDENT (PLAINTIFF): Advocate AJ Boulle
INSTRUCTED
BY: Strauss Daiy Attorneys
C/O
Lawrie Wright & Partners
1stSliver
Oak Building
14/36
Silverton Road
Musgrave,
Durban
Ref:
J.Senekel/ROH14/00l2