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[2024] ZALMPPHC 37
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Empact Group v Merensky High School (8467/2022) [2024] ZALMPPHC 37 (24 April 2024)
REPUBLIC
OF SOUTH
AFRlCA
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 8467/2022
In
the matter between:
EMPACT
GROUP Plaintiff
And
MERENSKY
HIGH
SCHOOL Defendant
JUDGEMENT
LEDWABA
AJ
[1] This
matter is about the exception raised by the plaintiff in respect of
the defendant's counterclaim.
[2] The
plaintiff gave the defendant the prescribed fifteen days to remove
the cause of complaint. The basis
of the complaint is that the
plaintiff is prejudiced in that it is unable to plead to the
defendant's counterclaim.
[3] The
purpose of the exception is to protect litigants against claims that
are bad in law or against an
embarrassment which is serious as to
merit the costs even of an exception. It is useful procedural tool to
weed out bad claims
at an early stage, but an overly technical
approach must be avoided.
[1]
While
the exception is a useful mechanism to weed out cases without merits,
it is nonetheless necessary that they.be dealt with
sensibly. It is
where the pleadings are so vague that it is impossible to determine
the nature of the claim or where pleadings
are bad in law in that
their contents do not support a discernable and legally recognized
cause of action, that an exception is
competent.
[2]
[4] The
excipient has a duty to persuade the court that upon every
interpretation which the pleading in question
can reasonably bear, no
cause of action or defence is disclosed, failing which the exception
ought not to be upheld.
[3]
[5] In
the main the plaintiffs cause of complaint is that the defendant's
counterclaim is allegedly vague
and embarrassing.
[6] An
exception that a pleading is vague or embarrassing will not be
allowed unless the excipient will be
seriously prejudice if the
offending allegations were not expunged. The effect of this is that
the exception can be taken only
if the vagueness relates to the cause
of action.
[4]
[7] An
exception that a pleading is vague and embarrassing can only be taken
when the vagueness and embarrassment
strike or goes to the root of
the entire cause of action or defence, as the case may be. The
exception should have the effect of
putting the matter to rest.
[5]
[8] The
plea
that
a
pleading
is vague
and
embarrassing must
be
directed
to
the
pleadings read as
whole and at a particular paragraph.
[9] The
question is whether the embarrassment is so serious as to cause
prejudice to the excipient if he
or she is compelled to plead to the
pleading in the form to which he/she objects.
[6]
[10] Paragraphs
38 to 41 of the defendant's counterclaim relate to counterclaim one.
In respect of this counterclaim,
the complaint is that it fails to
disclose which terms of the agreement the plaintiff has allegedly
failed to comply with. A further
complaint is that while the
defendant lists numbers that were allegedly paid but were not
due/erroneously paid to the plaintiff,
the counterclaim provides no
calculation, reconciliation, bank statement, invoice, order
confirmation or any facts which can be
referred to, to determine
whether the numbers are accurate, or to allow the plaintiff to plead
thereto.
[11] I
understand the defendant's heads of arguments to be that in breach of
the terms of the agreement the
plaintiff claimed and received the
stated amount of money of R2 784 143.33. Paragraph 40 makes it clear
that in the alternative
the plaintiff has been unduly enriched. The
other complaints relate to evidence which need not be pleaded. I
don't think the plaintiff
is prejudiced to respond as to whether it
received the money the defendant alleges is not due to the plaintiff.
To raise that it
is confusing
whether
the cause of
action
is the breach of contract or undue enrichment is technical.
[12] With
regard to paragraph 41 of the counterclaim, the cause of complaint is
that the defendant relies
on two distinct set of facts. I see no
vague and embarrassing, therefore no prejudice in the defendant
stating that the demand
for payment was already made, in the
alternative and in the event of the finding that there was no
previous demand, the pleading
constitutes the demand.
[13] With
regard to paragraphs 43 to 48 of the counterclaim, the cause of
complaint is that the defendant
relies on the third distinct cause of
action that the plaintiff committed breach of contract by
overcharging the defendant. The
allegation is that this is vague and
embarrassing.
In
paragraph 43 to 48 the defendant pleads alternative claim two to
claim one. This alternative claim is in the event of the finding
that
the plaintiff was entitled to charge, in addition, to the fixed fee
for the meals provided during government marking periods.
The
defendant pleads that the plaintiff did not comply with its
contractual obligations in that it impermissibly overcharged,
applying a higher rate than that applicable per meal.
This
is permissible further alternative which produce no prejudice for the
plaintiff to deal it.
[14] The
third cause of complain starts from paragraph 49 of the defendant's
counterclaim. The cause of complaint
is that the defendant again
seeks to plead alternative facts. The defendant's heads of argument
states that this deals with the
application of an incorrect
escalation and/or a failure to apply the agreed escalation as
provided for in terms of the Fixed Fee/
Management Fee as provided
for in terms of clause 3 of appendix 4A of the agreement.
The
introduction of alleged overcharging as an alternative cause of
action should not be prejudicial to the plaintiffs conduct of
its
case.
[15] At
issue is the formulation of the cause of action, not its validity.
[7]
How parties formulate claims differ but that should not lead to the
other pa,:ty seeing that as being exceipiable. The parties
should
take the other's claims as formulated and in the case of exception,
the facts must be accepted as pleaded. The exception
must be
determined on the pleadings as they stand, assuming the facts stated
therein to be true.
[16] It
is legally permissible to formulate claims in the alternative, even
if the alternative claims are
different causes of action.
[17] On
the balance of probabilities, the applicant has not proved that the
defendant's counterclaim is vague
and embarrassing and that that
strike or goes to the root of the entire cause of action/ claim or
defence, as the case may be.
It has not proved that the alleged
embarrassment is so serious as to cause prejudice that it is unable
to plead to the counterclaim.
The applicant's application fails.
[18] There
is
no
basis
to
deviated
from
the
position
that
the
cost
follows
the
result.
Order
(a) On
the balance of probabilities, the plaintiff has failed to prove that
the defendant's counterclaim
is vague and embarrassing and it is
prejudice to plea to the counterclaim
(b) The
plantiff's application is dismissed with costs.
LEDWABA
AJ
ACTING
JUDGE OF THE HIGH COURT
LIMPOPO
DIVISION: POLOKWANE
APPEARANCES
For
the plaintiff:
Adv
JP Morton
Instructed
by: MacGregor
Attorneys
C/0
Rheeder Attorneys
56A
Hoog Street
Polokwane
For
the first defendant: RJ
Groenewald
Instructed
by:
Joubert
& May Attorneys
C/O
De Bruin Oberholzer
Polokwane
Heard
on: 19th
February 2024
Judgement
delivered electronically on: 24th
April 2024
[1]
Pretorius
& Another v Transport Pension Fund & Another
(2018) ZACC;
2019(2)
SA 37(CC)
[2008] ZALC 24
; ;
(2018) 7 BLLR 633(CC)
; 2018(7) BCLR 838(CC) - par
15
[2]
Tembani
& Others v President of RSA & Another (
2022) ZASCA 70
(20/05/22) par 14
[3]
Picbel
Group Voorsorgfonds ( in Liquidation) v Somerville, and Related
Matters
(2013) ZASCA 24-
par 7: 2013(5)SA 496(SCA) at 501A-B :
Theunissen & Others v Transvaalse Lewendehawe Kooperasie
(1987)
ZASCA 93
;
(1998) 1 All SA 289(A):
1988(2) SA 493(A)
[4]
Erasmus:
Superior Court Practice at Vol 2 D1-299.
[5]
Jowell
v Bramwell- Jones & Others 1998(1) SA 836(W) at 905 H-1.; Giant
Leap Workspace Specialists(Pty) v Scion Trading (Ply)
Ltd T/A The SA
Gold Exchange ( 2014/3764) (2016) ZAGPJHC 321( 23 Nov 2016)
[6]
Ramanna
& Associates CC v Ekurhuleni Development Company(Pty)Ltd (2014)
ZAGPJHC 73 at par 14
[7]
Trope
v SA Reserve Bank 1993(3) SA 164(A) at 2691