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[2009] ZAGPJHC 59
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Dorbyl Limited v Gouws (51752/2008, 27796/2008) [2009] ZAGPJHC 59 (4 November 2009)
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IN THE SOUTH GAUTENG HIGH COURT
(JOHANNESBURG)
CASE
NOS: 51752/2008
27796/2008
In
the matter between:
DORBYL
LIMITED
Plaintiff/Respondent
and
MARTHINUS
GOUWS
Defendant/Excipient
J
U D G M E N T
BLIEDEN,
J
:
[1]
The defendant in this case has excepted to the plaintiff’s
particulars of claim on the grounds that they are vague and
embarrassing. There are two grounds on which the present exception is
based.
[2]
As has been said in numerous cases, an exception that a
pleading is vague and embarrassing strikes at the formulation
of the
cause of action and not its legal validity. In other words the
excipient’s complaint is that there is some defect
or
incompleteness in the plaintiff’s particulars of claim which
results in embarrassment to him in pleading thereto.
As was
said in
Lockhat v Minister of the
Interior
1960 (3) SA 765
(D&CLD) at
777C-D:
“
The
object of all pleadings is that a succinct statement of the grounds
upon which a claim is made or resisted shall be set forth
shortly and
concisely; and where such statement is vague, it is either
meaningless or capable of more than one meaning. It is embarrassing
in that it cannot be gathered from it what ground is relied on by the
pleader.
”
[3]
In similar vein is the statement of McCreath J in
Trope
v South African Reserve Bank and Others
1992
(3) SA 208
(T) at 211B-C:
“
An
exeption to a pleading on the ground that it is vague and
embarrassing involves a two-fold consideration. The first is
whether the pleading lacks particularity to the extent that it is
vague. The second is whether the vagueness causes embarrassment
of such a nature that the excipient is prejudiced (Quinlan v
MacGregor
1960 (4) SA 383
(D) at 393E-H).
”
[4]
It is also settled law that an exception can be taken to
particular sections of a pleading in circumstances where they
are
self-contained and amount to a separate claim or defence as the case
may be.
Salzmann v Holmes
1914 AD 152
at 156;
Barrett v Rewi
Bulawayo Development Syndicate
1922 AD
457
at 459;
Barclays National Bank Ltd v
Thompson
1989 (1) SA 547
(A).
[5] With this introduction it is now
necessary to deal with the plaintiff’s particulars of claim and
the two objections to
it. The particulars contain two separate
claims, these are:
5.1
a claim for the payment of R6,425 million which is alleged to be
secret profits received by the defendant in breach
of his fiduciary
duties to the plaintiff;
5.2
a claim for the repayment of R2,775
million allegedly paid to the defendant in terms of a Management
Participation Scheme Agreement
(the MPS Agreement) which is annexed
to the particulars of claim as “A”, on the grounds that
the defendant had breached
this Agreement and therefore forfeited his
entitlement to the amount which had been paid out to him by the
plaintiff.
[6] The two exceptions brought by the
defendant are directed at the second claim which is based on the MPS
Agreement (“A”).
The following paragraphs in the
particulars of claim are in issue:
“
4 During
or about 2001 Plaintiff embarked on an exercise aimed at refocusing
its operation and which involved the disposal of a
number of
divisions to certain members of its management by way of management
buy-out agreements in order to unlock, and return
to the Plaintiff’s
shareholders, the true value of these divisions.
5
Pursuant to the aforesaid exercise
Plaintiff duly represented, and a number of its employees including
Defendant, entered into a
written,
alternatively
a partly written, partly tacit
,
Management Participation Scheme Agreement (‘the MPS’); a
copy of the writing is annexed hereto marked ‘A’.
6 Pursuant to
this exercise and in accordance with the MPS, the Plaintiff disposed
of its Metals Trading Division to a company which
later changed its
name to, and is now known as, Kulungile Metals (Pty) Ltd (‘the
Purchaser’) for a total consideration
of R205 million.
”
(my underlining)
The
first ground of exception
[7]
The underlined words in paragraph 5 constitute the
defendant’s first cause of complaint. This is that
the
facts relied on for the “
alternatively
a partly written, partly tacit
”
agreement are not pleaded. It is the defendant’s case
that a plaintiff who relies on a tacit agreement in the
alternative
must plead the conduct and circumstances which give rise to such
agreement. Merely pleading its terms is insufficient,
so it is
contended.
[8]
As authority for these contentions counsel for the defendant
relied on a number of passages in
Roberts
Construction Co Ltd v Dominion Earthworks (Pty) Ltd
1968 (3) SA 255
(A) at 261F-262F;
Triomf
Kunsmis (Edms) Bpk v AE & CI Bpk en Andere
1984 (2) SA 261
(W) at 267D-G;
Bezuidenhout
v Otto and Others
1996 (3) SA 339
(W)
at 344I.
[9]
The logical basis for the defendant’s contention is
illustrated in the example referred to with approval in
Roberts
Construction Co Ltd (supra)
at
261H-262B where a passage from
Goodwood
Municipality v Joyce and
McGregor
Ltd
1945 CPD 424
at 428 per Jones J is
quoted:
“
That
conduct unaccompanied by writing or use of words can constitute
binding reciprocal obligations admits of no doubt. Several
instances
are given in Wessels, Law of Contracts, vol. 1, pp. 82 and 83, of
contracts being formulated by conduct. But when a pleader
wishes to
formulate a claim based on such a contract it is not sufficient
merely to state that such a contract comes into existence
because of
the defendant’s conduct. He must go further and set out what
the conduct was. Let me take one of the examples
given by
Wessels in order to ascertain what it would be essential for the
pleader to set out. The running of a tram or a bus between
certain
points ‘A’ and ‘B’ constitutes a constant
offer to carry a member of the public at the usual fare.
Entering and remaining on the tram or bus constitutes an acceptance
of that offer and involves a liability to pay the fare. In
an action
to recover the fare it would not be sufficient to allege that
defendant’s conduct imported a contract involving
liability; it
must be alleged that defendant’s conduct in entering and
remaining on the vehicle imported the liability. In
other words, the
actual conduct must be set out.
”
[10]
The position is succinctly summed up by Coetzee J (as he
then was) in
Triomf Kunsmis (Edms) Bpk
(supra)
at 266H-267B:
“
Die
belangrike punt wat ek in aanmerking moet neem en in gedagte moet
hou, is dat daar ‘n fundamentele verskil in ons reg
tussen
enersyds ‘n stilswyende term van ‘n uitdruklike kontrak
en andersyds, ‘n stilswyende kontrak is. In die
geval van ‘n
stilswyende kontrak is dit geykte reg dat slegs bepaalde gedrag
aangemerk kan word as ‘n wilsverklaring.
Dit is dus nie ‘n
geval waar mens ‘n bestaande kontrak, hetsy mondelings of
skriftelik, by implikasie sekere terme
moet inlees op die
veronderstelling dat stilswyend daarop ooreengekom is nie. In ‘n
geval waar ‘n persoon steun op
so ‘n kontrak moet hy
beweer en bewys, bepaalde gedrag of gedraginge wat, òf
individueel òf kumulatief, op
net een gevolgtrekking dui,
naamlik dat tussen hierdie partye ‘n stilswyende kontrak tot
stand gekom het.
”
[11] In answer to the above
propositions plaintiff’s counsel referred to the provisions of
Rule 18(7) of the Uniform Rules
of Court, which read:
“
18(7) It
shall not be necessary in any pleading to state the circumstances
from which an implied term can be inferred.
”
[12] The argument advanced is that
the agreement relied on by the plaintiff as pleaded is a written
agreement in which certain
tacit terms are to be imputed. Rule
18(7) specifically excuses the pleading of the circumstances relied
upon for such tacit
terms.
[13]
This argument fails to correctly reflect the pleading
concerned, which relies on a written agreement (Annexure
“A”)
and in the alternative, a further and other agreement “
which
is partly written, partly tacit
”,
but is not “A”. It is the facts leading to this
latter agreement which have not been furnished and which
are required
to be stated. The distinction between a tacit term of a
specific contract and a tacit contract as such is important.
In
the first case Rule 18(7) is of application while in the second case
the facts leading up to the tacit conclusion of the contract
relied
upon must be stated. A failure to do this will result in the
other party, the defendant in the present case, not knowing
what case
he has to meet in this regard.
[14]
It therefore seems to me that the first exception has been well
taken.
The
second ground of exception
[15]
As is plain from paragraphs 5 and 6 of the
plaintiff’s particulars of claim reliance is placed on
“A”
as the document in terms of which the defendant was paid certain
monies. On behalf of the defendant it was
pointed out that on a
plain reading of the first page of Annexure “A” the
document “
is subject to the
approval by the non-executive directors of the Board
”.
The agreement relied upon by the plaintiff is therefore subject to a
suspensive condition the fulfilment of which
is necessary to give
rise to the rights and obligations on which this claim is based.
Design and Planning Service v Kruger
1974 (1) SA 689
(T) at 695C-D;
Odendaalsrus
Municipality v New Nigel Estate Goldmining Co Ltd
1948 (2) SA 656
(O) at 666-667.
[16]
In the circumstances, so it was submitted, it is
necessary for the plaintiff to plead that the suspensive condition
concerned has been fulfilled and more specifically that the
non-executive directors of the Board have approved the agreement
concerned.
See
Resisto Dairy (Pty)
Ltd v Auto Protection Insurance Co Ltd
1963 (1) SA 632
(A) at 644G and
Rohroff
v Nothling
1971 (1) SA 14
(E) at 16F.
[17] No such allegation appears in
the plaintiff’s particulars of claim and for this reason, as
well, the particulars of
claim are objected to as being vague and
embarrassing.
[18] In answer to this complaint the
plaintiff’s submissions as they appear in the heads of argument
filed by counsel are
as follows:
“
17
We reiterate that the excipient must accept all the facts pleaded in
the particulars of claim.
18
We also reiterate the fact that the
agreement was concluded in 2001 and that the sale of Plaintiff’s
Metals Trading Division
under this agreement was concluded long ago
and that the Defendant was paid under the agreement in 2003:
the Plaintiff’s
claim is for repayment of the amount paid under
the agreement.
19
To suggest that
the Plaintiff, in these circumstances, was obliged to allege that
some condition (which has nothing to do with its
cause of action) had
been fulfilled is, with respect, fanciful.
20
The Plaintiff is not attempting to
enforce an agreement, on the contrary for the purposes of the
exception it must be accepted that
the Contract has been discharged.
21
It
is consequently not necessary for the Plaintiff to plead as to the
suspensive condition.
22
Moreover,
in our law, a promise is presumed to be absolute so that conditional
promises are exceptions to the Rule. It is presumed
that a Contract
is unconditional and the party who alleges that it is conditional
must prove that condition. See
Alexander v
Opperman
1952 (1) SA 609
(O)
”
[19]
In my view this argument begs the question. The
plaintiff’s case is squarely based on the provisions
of
Annexure “A”. Paragraph 12 of the plaintiff’s
particulars of claim relies on a breach of the provisions
of this
agreement, while paragraph 13 refers to the payment of the R2,775
million claimed as having been made “
under
the MPS
”. The existence of
the document, “A” as a binding agreement is therefore
fundamental to this portion of
the plaintiff’s claim.
However, on reading the document concerned it is clear that in itself
it is not a binding document
until the occurrence of an event, that
is the approval of the non-executive directors of the Board. If
this did not occur,
the plaintiff’s cause of action as
presently couched cannot stand. In my view the defendant is
entitled to be informed
whether the agreement came into being as
stated in Annexure “A” or not. A failure to do so
makes the pleading
vague and embarrassing. The second ground of
exception must therefore also be upheld.
[20] Counsel were agreed that this
was a matter which justified the employment of two counsel by each of
their respective clients.
I agree. I therefore make the
following order:
1.
The two exceptions to the plaintiff’s particulars of claim
as being vague and embarrassing are upheld.
2.
The plaintiff is given 20 days within
which to amend its particulars of claim.
3.
The plaintiff is ordered to pay the defendant’s costs, such
costs are to include the costs of two counsel.
P BLIEDEN
JUDGE
OF THE HIGH COURT
COUNSEL
FOR PLAINTIFF/
ADV C
W JORDAAN SC
RESPONDENT
ADV
G D DOUBELL
INSTRUCTED
WEBBER
WENTZEL
COUNSEL
FOR DEFENDANT/
ADV
WIM TRENGOVE SC
EXCIPIENT
ADV
J WILSON
INSTRUCTED
BY
READ
HOPE PHILLIPS THOMAS & CADMAN INC
DATE
OF HEARING
20
OCTOBER 2009
DATE
OF JUDGMENT
4
NOVEMBER 2009