CMH Car Hire (Pty) Ltd t/a National Car Rental v Siyanda District Municipality and Others (541/2008) [2009] ZANCHC 17 (27 March 2009)

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[2009] ZANCHC 17
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CMH Car Hire (Pty) Ltd t/a National Car Rental v Siyanda District Municipality and Others (541/2008) [2009] ZANCHC 17 (27 March 2009)

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IN THE HIGH COURT OF
SOUTH AFRICA
(Northern Cape
Division)
Case
Nr:
541/2008
Case
Heard:
20/03/2009
Date
delivered:
27/03/2009
In
the matter between:
CMH
CAR HIRE (PTY) LTD t/a
NATIONAL
CAR RENTAL PLAINTIFF
and
SIYANDA
DISTRICT MUNICIPALITY
1
ST
DEFENDANT
JAMES
PETRUS MAPANKA 2
ND
DEFENDANT
DAVID
GEORGE LYONS 3
RD
DEFENDANT
JACOBUS
GILBERT LATEGAN 4
TH
DEFENDANT
LENNOX
HORING 5
TH
DEFENDANT
JUDGMENT
Olivier J:
The
plaintiff, CMH Care Hire (Pty) Ltd t/a National Car Rental SA,
issued summons against the Siyanda District Municipality (1
st
defendant), mr James Petrus Mapanka (2
nd
defendant), mr David George Lyons (3
rd
defendant), mr Jacobus Gilbert Lategan (4
th
defendant), and mr Lennox Horing (5
th
defendant).
In
broad terms the plaintiff’s case is the following:
I
n
a credit agreement concluded between the plaintiff and the first
defendant on 24 November 2004 it was agreed that the first

defendant would be liable for all “
charges
”
incurred through the use of certain vouchers.
T
he
second and third defendants (employees of the first defendant) had
bound themselves as sureties and co-principal debtors
for all
amounts which were or would in future become due and payable by the
first defendant to the plaintiff.
On 10 August 2005 a
rental agreement was concluded between the plaintiff and the first
defendant, alternatively the fourth defendant
(also an employee of
the first defendant).
I
n
concluding the rental agreement the fourth defendant, acting
either on behalf of the first defendant or in his personal

capacity, made use of a voucher as envisaged in the credit
agreement.
In terms of the
rental agreement the first defendant, alternatively the fourth
defendant, hired a vehicle from the plaintiff
and would be liable
for all damages incurred by the plaintiff should the vehicle not
be returned in the same condition that
it was received in, except
insofar as any of the indemnities provided for in clauses 9 and 10
of the rental agreement applied.
The vehicle was not
returned as agreed and had in fact been damaged beyond economical
repair in a collision, resulting in damages
in the amount of R164
500,00.
The
plaintiff claims payment of this amount and alleges that the first
defendant is liable “
in
terms of the credit application agreement, read with the rental
agreement
”,
and that the second and third defendants would then be liable in
terms of the suretyship.
In the alternative,
and should the first defendant be found not to be liable (and
therefore also the second and the third defendants),
the plaintiff
alleges that the fourth defendant would be liable in his personal
capacity, in terms of the rental agreement.
In
the further alternative, “
and
in any event against the Fifth Defendant
”,
the plaintiff pleads that either the fourth defendant or the fifth
defendant (also an employee of the first defendant)
had caused the
damages through negligent driving of the vehicle, and that the
fourth defendant, alternatively the fifth defendant,
should on that
basis be held liable for the plaintiff’s damages.
Copies
of the so-called credit application agreement, the suretyship, the
“
MANUAL
RENTAL AGREEMENT
”
and the “
TERMS
AND CONDITIONS OF THE RENTAL AGREEMENT
”
were annexed to the particulars of claim as, respectively, annexures
A, B, C and D.
The defendants
excepted to the particulars of claim on the basis that it is in some
respects vague and embarrassing and that,
in other respects, it
lacks the necessary averments to sustain a cause of action.
VAGUE
AND
EMBARRASSING
The first complaint in
this regard concerns the allegations in the particulars of claim
that:
“
In
concluding the credit application agreement:
The
Plaintiff was represented by a duly authorised employee;
The First Defendant
as represented by the Second Defendant and/or the Third Defendant.”
In
its notice in terms of Rule 23(1) the plaintiff states that these
allegations do not comply with Rule 18(6) “
in
that it does not disclose who represented either of the parties in
concluding the agreement
”.
The
mere fact of non-compliance with Rule 18(6) would not render such an
allegation vague and embarrassing and, should it not
be vague and
embarrassing because of some other reason, such an allegation would
not be excipiable and the only remedy would
be to follow the
procedure provided for in Rule 30 (see
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a LH Marthinusen
1992 (4) SA 466
(W) at 469-470,
Absa
Bank Ltd v Boksburg Transitional Local Council (Government of the
Republic of South Africa, Third Party)
1997 (2) SA 415
(W) at 418,
Jowell
v Bramwell-Jones and Others
1998 (1) SA 836
(W) at 902,
Nasionale
Aartappel Koöperasie Bpk v Price Waterhouse Coopers Ing en
Andere
2001 (2) SA 790
(T) at 796 and
Venter
and Others NNO v Barritt; Venter and Others NNO
v
Wolfsberg Arch Investments 2 (Pty) Ltd
2008 (4) SA 639
(C) para [16]).
This
would probably explain why, in heads of argument on behalf of the
defendants, it was then submitted that these allegations
do “
not
disclose the necessary information required
(
sic
)
in precise terms
”
and that accordingly the defendants are unable to plead thereto.
As
far as the representation of the first defendant is concerned, I
fail to understand why the plaintiff would not have been entitled
to
make the alternative allegations that either the second or the third
defendant had represented the first defendant. The particulars
of
both the second and third defendants can be found in paragraphs 3
and 4 of the particulars of claim.
As
regards the representation of the plaintiff in the credit agreement,
the question whether the allegation that the plaintiff
was
represented by a duly authorised employee complied with Rule 18(6),
the problem is that this is not an application to have
the
particulars of claim set aside as an irregular step. It is an
exception and, even if the failure to provide particulars
of the
employee who had represented the plaintiff could be viewed as
non-compliance with Rule 18(6), this would not in itself
render such
allegation vague and embarrassing.
In
my view the allegation that the plaintiff had been represented by a
duly authorised employee, contains sufficient particularity
to
respond thereto in the form of a plea without any apparent and
serious prejudice (see
Venter
and Others NNO v Barritt; Venter and Others NNO
v
Wolfsberg Arch Investments 2 (Pty) Ltd, supra
,
para [25]). Put another way, the defendants have failed to satisfy
me that, without further particulars thereto, they will be

“
embarrassed
in pleading
”
and that further particulars of the employee “
are
strictly necessary to enable
(them)
to
plead …
”
(see
Jowell
v Bramwell-Jones and Others, supra
,
at 902A-C).
Whether
the person who had concluded the contract on behalf of the plaintiff
had been properly authorised to do so, would appear
to be part of
the
facta
probantia
required to prove the allegation that a valid contract was concluded
(see
Jowell
v Bramwell-Jones and Others, supra
,
at 903A-B).
The
second complaint in this regard is directed at a similar allegation,
as far as the representation of the plaintiff in the
rental
agreement is concerned, and what has already been said above applies
also to this complaint.
LACK OF AVERMENTS
REQUIRED TO SUSTAIN ACTION
The
defendants’ complaint in this regard is, in the first place, that
the “
plaintiff
fails to indicate on what legal basis the ‘charges’ … includes
damages which may be sustained by the use of the
vouchers and/or
orders
”.
In
this regard the test would be whether the defendants have satisfied
the Court that the particular clause in the credit agreement,
when
read with the rental agreement, could on no interpretation at all be
read to mean that the use of the vouchers would render
the first
defendant liable for damages (see
Trustees,
Bus Industry Restructuring Fund v Break Through Investments CC and
Others
2008 (1) SA 67
(SCA) at 74I,
Couve
and Another v Reddot International (Pty) Ltd and Others
2004 (6) SA 425
(W) para [2] and
Frank
v Premier Hangers
CC
2008 (3) SA 594
(C)).
In
my view t
he
defendants have not succeeded in doing so. The plaintiff has made
the allegation, in this regard, that the credit agreement
should be
read with the rental agreement. In this regard it is of interest to
note that the same account number (SIY 002 B)
appears in both these
annexures.
The
rental agreement does provide for liability for damages and it is of
interest to note that, in terms of clause 5.1 of the
rental
agreement, such charges would include the costs of “
repairs,
replacements
”.
In
clause 2.2 of the rental agreement it is provided that the damages
to which the plaintiff would be entitled would include “
repairing
any damages, replacing parts …., replacing the vehicle
”.
Once
it is accepted that the rental agreement should be read with the
credit agreement, the possibility (and I need not put it
any higher
than that) that the charges envisaged in the credit agreement would
include damages, could not be ruled out.
The
second ground upon which the defendants conten
d
that the summons lacks averments required to sustain a cause of
action, is that, while pleading that the rental agreement did

provide for the possibility of indemnity against a claim for
damages:
“
4.3 Plaintiff
fails to plead that a collision damage waiver was indeed taken out to
indemnify the defendants in the event of a collision.
4.4 Plaintiff fails
to plead any facts why the indemnities provided for in clause 9 and
10 should not operate in favour of the Defendants.”
The relevant paragraph
of the particulars of claim reads as follows:
“
Save
to the extent of the indemnities provided for in clauses 9 and 10 of
annexure ‘D’, the First Defendant, alternatively the
Fourth
Defendant, would be liable to the Plaintiff for any damages to the
motor vehicle if the motor vehicle was not returned in
the condition
described in the previous subparagraph.”
The
plaintiff was not obliged to plead “
information
which forms no part of the plaintiff’s cause of action as
formulated
”
or information to enable the defendants “
to
ascertain whether
(they have)
a
defence to the claim, or to formulate such a defence
”
(see
South
African Railways and Harbours v Deal Enterprises (Pty) Ltd
1975 (3) SA 944
(W) at 947-948,
Swil
v Swil
1978 (1) SA 790
(W) at 792 and
Insamcor (Pty) Ltd v Maschienenfabriek Sidler Stalder AG t/a
Sistag
1987 (4) SA 660
(W) at 664).
The
fact that the general possibility of such an indemnity (under
certain circumstances) has been pleaded is a
plus
petitio
.
The existence of a term providing for indemnity under particular
circumstances could never be said to be a part of the plaintiff’s

cause of action and the pleading thereof could never have been
required to sustain the plaintiff’s cause of action. The pleading

of this term could therefore not render the particulars of claim
excipiable (compare
Anglo
African Shipping Co (1936) Ltd v Harris and Others
1977 (2) SA 213
(W) at 217).
The
terms concerning such an indemnity are in any event contained in the
“
TERMS
AND CONDITIONS OF THE RENTAL AGREEMENT
”,
a copy of which document is annexed to the particulars of claim as
annexure D.
It
is so that it would appear,
ex
facie
the document titled “
MANUAL
RENTAL AGREEMENT
”
(annexure C to the particulars of claim) and the contents of
annexure D, as though so-called collision damage waiver (CDW)
had
been taken out when the vehicle was hired. In terms of clause 10.3
of annexure D “
Such
CDW will cover any damage to the vehicle incurred in a collision
with another vehicle on a National or Municipal road (excluding

gravel, dirt or rural roads)
”.
There
is no indication in the particulars of claim or in the annexed
documentation that the vehicle was damaged in a collision
“
with
another vehicle
”
or on what type of road the vehicle was damage. It therefore cannot
be said that the particulars of claim disclose a
prima
facie
defence
which the plaintiff had to exclude by reasons of further averments.
It was not necessary for the plaintiff to anticipate
what defence/s
the defendants may raise and to counter them in if particulars of
claim.
These
terms are, as already mentioned, contained in the document titled
“
TERMS
AND CONDITIONS OF THE RENTAL AGREEMENT
”,
annexure D to the particulars of claim. In the heads of argument on
behalf of the defendants it is submitted that the plaintiff
failed
to plead that the defendants had accepted the terms and conditions
contained in annexure D, that it was clear
ex
facie
that document that it had not been signed by the defendants and that
the terms and conditions in annexure D can therefore not
be regarded
as part of the rental agreement.
There is absolutely no
merit in this submission. In its particulars of claim the plaintiff
made the express allegations that:
“
The
rental agreement consists of:
A document headed
‘manual rental agreement’, a copy of which is annexed hereto
marked ‘C’; and
The ‘terms and
conditions of the rental agreement’, a copy of which is annexed
hereto marked ‘D’.”
It
was not required of the plaintiff to plead the evidence which will
be required to pro
ve
that the defendants had indeed accepted the terms and conditions as
set out in annexure D (see
Jowell
v Bramwell-Jones and Others, supra
,
at 903A-B and
Venter
and Others NNO v Barritt; Venter and Others NNO
v
Wolfsberg Arch Investments 2 (Pty) Ltd, supra
,
at 646E-F).
The
fact that annexure D m
ay
not have been signed by or on behalf of the defendants is not
conclusive at all and would not prevent the plaintiff from

presenting evidence to substantiate its allegation that the contents
of annexure D do indeed form part of the rental agreement.
In this
regard it should be noted that, in clause 1.1 in annexure D, it is
stated that “T
hese
are the terms and conditions of the rental agreement
on
the face of this document
”
(my emphasis). It would not, I imagine, be difficult for the
plaintiff to prove that the copy annexed to its particulars
of claim
as annexure D is in fact merely the reverse side of the manual
rental agreement (annexure C), which does contain the
signature of a
“
Renter
”
and at the foot whereof (just above the signature of the renter) the
words “
I
have read and understood
the
terms and conditions on the reverse side of the Rental Agreement
”
appear.
The
defendants appear to have overlooked the fact that although the
plaintiff alleges that annexure A to its particulars of claim
is a
“
credit
application agreement
”,
the copy annexed as annexure A purports to be only an application
for credit, does not reflect the granting thereof or the
agreement
thereto by the plaintiff and can in itself accordingly not be said
to be a copy of any agreement at all.
Be that as it may, it
follows that the exception cannot in my view succeed on any of the
grounds taken by the defendants. There
is no reason why costs
should not follow the result.
It
is unnecessary to consider whether the absence of a prayer in the
notice of exception caused the plaintiff any prejudice (compare
Soma
v Morulane
1975 (3) SA 53
(T) and
Frankel
Pollak Vindirine Inc v Stanton
NO
2000 (1) SA 425
(W) at 452).
In the premises the
following order is made:
The exception is
dismissed with costs.
________________________
C J OLIVIER
JUDGE
NORTHERN CAPE
DIVISION
For the
Plaintiff:
Adv
P R Cronje
Instructed
by:
Fletcher’s
KIMBERLEY
For the
Excipients: Adv F G Janse van Rensburg
Instructed
by: Elliott, Maris, Wilmans & Hay, KIMBERLEY