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[2009] ZAGPPHC 333
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Kimiad Sastehuis (EDMS) Beperk and Another v Zwartkloof Mining (EDMS) Beperk and Another (49772/2008) [2009] ZAGPPHC 333 (14 August 2009)
IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
CASE
NO: 49772/2008
DATE:
14 AUGUST 2009
In
the matter between:
KIMIAD
GASTEHUIS (EDMS) BEPERK
First
Plaintiff
MICHAEL
MEYER Second
Plaintiff
and
ZWARTKLOOF
MINING (EDMS)
BEPERK First
Defendant
ZWARTKLOOF
WILDERESERVAAT VERENINGING Second
Defendant
JUDGMENT
LEDWABA,
J
[1]
The excipient, the first defendant, filed an exception to the
plaintiffs’ particulars of claim and an application to strike
out paragraphs 9.3 and 9.5 of the plaintiffs’ particulars of
claim.
[2]
It is common cause that in a written agreement, the first defendant
agreed to deliver three hundred thousand (300 000) litres
of water to
the plaintiffs’ and the second defendant.
[3]
According to the plaintiffs’ the first defendant did not comply
with the terms of the agreement in that it failed to deliver
the
water. An application was made to the court by the plaintiffs’
in terms whereof Mynhardt J, inter alia, ordered the first
defendant
to comply with the court order of Shongwe DJP dated 8 February 2007
and the first defendant was to join a pipe to a pipe
laid by the
plaintiff to effect the delivery of water, failing which the sheriff
was to act accordingly. See annexures Z and Y
respectively.
[4]
There was a dispute between the parties regarding how the water was
to be delivered and from which borehole. Another application
to court
was filed by the plaintiff and Legodi J on 28 March 2008 ordered ,
inter alia, that:
“
1.
THAT the order made on the 8
th
February 2007 is hereby
confirmed.
2.
THAT the water source from which the first respondent is to supply
300 000 litres of water per month to Plot 8, a portion of
Portion 1
of the farm Zwartkloof 707 KR located within the second respondent
shall be the borehole indicated as No 3 on Annexure
“X”
referred to earlier in this judgment.
3.
THAT the first respondent to see to the installation of an electrical
pump together with a water meter and necessary cabling
on the said
borehole and to connect same with a pipe to the pipeline already
installed by the deputy Sheriff in pursuance of the
order of Mr
Justice Mynhardt referred to above within 14 days of payment of the
costs for the pump, the meter, the pie and the
installation thereof
as provided for in paragraph 4. ”
[5]
The first defendant’s counsel Advocate Davis SC informed the
court that the plaintiffs’ filed an application for
leave to
appeal against the order of Legodi J which application was dismissed.
He submitted that the day upon which the dispute
between the parties
began from which borehole the water was to be drawn was sorted out on
the 1
st
April 2009. The plaintiffs’, he submitted,
were therefore not entitled to water from the borehole that they
assumed they
were entitled to draw water from. As a result any action
for the delivery of water before the 1
st
April 2009 is
premature and does not disclose the cause of action.
[6]
The aforesaid ground of exception to the plaintiffs’
particulars of claim was not mentioned in the notice of exception.
As
far as the first, second and third grounds of exception in the notice
of exception are concrete, there is a standing court order
of the 8
February 2007 ordering the first defendant to deliver three hundred
thousand (300 000) litres of water to the applicant.
Whether the
plaintiffs were entitled to the water before the 1
st
April
2009 it is an issue which could be decided by the trial court.
[7]
The plaintiffs’ in paragraphs 12.1, 12.2 and 12.3 of the
particulars of claim made the following allegations:
“
12.1.
As gevolg van Eerste Verweerder se nie-lewering van die ooreengekome
hoeveelheid water (300 000 liter per maand) ly Eisers
skade.
12.2.
Eiser se skade is geiyk aan die waarde van die water wat Eerste
verweerder moes iewer.
12.3.
Die kontraktueie hoeveelheid water wat gelewer moes word, is:
300
000 liter per maand x 29 maande= 8 700 000 liter water
Die
39 maande behels die periode 1 Mei 2006 tot 30 September 2008.
[8]
Plaintiffs’ further alleged in the period 28 August 2008-26
September 2008 plaintiff received 137 893 litres. Paragraph
12.6 of
the plaintiffs’ particulars of claim reads as follows:
“
12.6
In die vooropstelling is Eisers se skade R84 121, 07 wat soos volg
bereken word:
Kontraktueie
verpligting van 1 Mei
2006
Tot
30
September 2008 (12.3 hierbo)
8
700 000 liters
Min
water gelewer soos in 12.4 en 12.5
1
50 000 liter + 137 893 liter
287 893 liters
Balans
(liters) verskuldig
8 412 107 liters
8
412 107 liters is gelyk aan 8 412,107 kiloliter
Koste
van 1 kiloliter is R 10,00
Skade
is 8 412,107 kiloliter x R10,00
Per
kiloliter
R 84 121,07”
[9]
The plaintiffs’ did not, in my view, properly allege and
explain the damages they allege to have suffered. It is not known
if
the plaintiffs’ purchased water from another source and if the
costs of R10, 00 for a kilolitre is fair and reasonable.
APPLICATION
TO STRIKE OUT
[10]
The plaintiffs’ counsel challenged to the application was that
the applicant was not supported by an affidavit. In terms
of Rule 6
(11) interlocutory applications may be brought on notice supported by
such affidavits as the case may require. In my
view, an affidavit is
not required in this interlocutory application.
[11]
I think that the allegations in paragraph 9.3 and 9.5 are irrelevant
scandalous and vexation. The plaintiff will not be prejudiced
if they
are struck out.
[12]
I therefore, make the following
order:
(i)
The first defendant’s exception in respect of prayers one and
two of the notice is dismissed.
(ii)
The first defendant
5
exception in respect prayer 4 is
upheld.
(iii)
Plaintiff is granted leave to amend the particulars of claim within
20 days from the day of this order.
(iv)
Paragraphs 9.3 and 9.4 of the plaintiffs’ particulars of claim
are struck out.
(v)
Plaintiffs are jointly and severally liable to pay the costs.
A.P.
LEDWABA
JUDGE
OF THE HIGH COURT