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2024
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[2024] ZAMPMBHC 46
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Tracexpress (Pty) Ltd v Xsun Transport (Pty) Ltd (5553/2023) [2024] ZAMPMBHC 46 (9 July 2024)
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
(MPUMALANGA DIVISION,
MBOMBELA)
CASE
NO: 5553/2023
(1)
REPORTABLE:NO
(2)
OF INTEREST TO OTHER JUDGES: YES
(3)
REVISED: YES
SIGNATURE
DATE: 09/07/2024
In the matter between:
TRACEXPRESS
(PTY) LTD
Plaintiff
and
XSUN
TRANSPORT (PTY) LTD
Defendant
This judgment was
handed down electronically by circulation to the parties and/or
parties’ representatives by email. The date
and time for
hand-down is deemed to be 09 July 2024 at 10:00.
JUDGMENT
MASHILE J:
[1]
This is an exception raised by the Defendant (Xsun Transport”)
against the amended particulars
of claim of the Plaintiff
(“Tracexpress”). The exception is twofold. Firstly, the
particulars of claim lack the necessary
averments to sustain a cause
of action and/or secondly, that they are vague and embarrassing. It
appears that there was a first
exception to which Tracexpress
responded by amending its particulars of claim. The complaints
concerning the amended particulars
of claim are believed to persist
hence this second exception. The exception is opposed by Tracexpress
as baseless.
FIRST COMPLAINT
[2]
The first complaint arises from Paragraph 4 of the amended
particulars of claim where Tracexpress
pleads that:
“
On
or about 2
nd
of July 2021, Mr. Hander van Graan a manager of the Defendant
telephoned the Plaintiff to set up vica voce [sic] or otherwise and
oral agreement between the Plaintiff and the Defendant”. The
Plaintiff pleads further in paragraph 4.1.2.2 that:
“
The
operators at the Defendant will prepare a load confirmation, delivery
note, final weight ticket and agree on the price for the
transportation of the Defendant’s goods…”
[3]
Xsun Transport states that if one has regards to the amended
particulars of claim, it stands to
reason that each supposed
load/delivery instruction constitutes a discrete and independent
agreement subject to variances in pricing.
While that is the case,
not a single of these alleged agreements have been appended to the
amended particulars of claim. As though
that was not enough,
Tracexpress has not fully pleaded the terms of these agreements. As
such, states Xsun Transport, it is unable
to plead to these vague and
ambiguous allegations.
[4]
Similarly, Tracexpress pleads that the operators of Xsun Transport
carry responsibility for the
preparation of the load confirmation and
pricing, yet it fails and/or refuses to disclose who these operators
were at the time
when the purported transport agreements were
concluded. Tracexpress has therefore failed to adhere to the Uniform
Rules of Court
and no cause of action can be said to have been made
out. In the alternative, Xsun Transport is unable to plead to the
particulars
of claim because of the ambiguity and vagueness of the
allegations.
[5]
Tracexpress further pleads in the next sub-paragraphs of the amended
particulars of claim that
it transferred goods on behalf of Xsun
Transport in exchange for a service fee. The fee would be charged
against it in accordance
with an invoice, which Tracexpress would
render to Xsun Transport. Xsun Transport contends that Tracexpress
fails to disclose when
the goods were transported and to whom they
were delivered.
[6]
Tracexpress also fails to mention the amount of the service fee
and/or how such fee was calculated.
Tracexpress is silent on who
agreed to the service fee. Tracexpress also does not disclose where,
when and/or by whom such instruction
to transport the goods were
received and by whom was it given.
SECOND COMPLAINT
[7]
Here the complaint is that at Paragraph 4.1.2.3 of the amended
particulars of claim, Tracexpress
refers to a supposed delivery note
annexed as Annexure “OS45” without mentioning to which
agreement it belongs. Moreover,
says Xsun Transport, the annexure is
unclear, illegible and confusing. As such, Xsun Transport contends
that it is unable to gather
the relevant information from the annexed
documents to meaningfully plead to the particulars of claim.
Additionally, the balance
of the annexures attached to the
particulars of claim are nonsensical, undecipherable and do not
display the relevant information
necessary to enable Xsun Transport
to meaningfully plead to the amended particulars of claim.
[8]
The question that requires the attention and determination by this
Court is whether the two grounds
of exception raised by Xsun
Transport are well-founded. If this Court finds that they are, the
exceptions must be upheld and if
not, they will stand to be
dismissed.
[9]
Prior to embarking on evaluation of the issues, it will always be
advisable to first set out what
the guiding legal principles are on
the subject. In this regard, Xsun Transport has referred to Uniform
Rules of Court 18(4) and
(6). Rule 18 deals with matters concerning
pleading generally. Sub-rules (4) and (6) respectively provide that:
“
Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his or her claim,
defence or
answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.”
And
“
A
party who in his or her pleading relies upon a contract shall state
whether the contract is written or oral and when, where and
by whom
it was concluded, and if the contract is written a true copy thereof
or of the part relied on in the pleading shall be
annexed to the
pleading.”
[10]
At Page 558 of the Civil Practice of The High Courts of South
Africa, Vol 1 - Juta - by
Herbstein & Van Winsen
the
following is stated
: “T
he function
of pleadings
“
is to give fair notice of the case
which has to be met and to define the issues on which the court will
have to adjudicate in order
to determine the matters in dispute
between the parties”.
[11]
In
Kali
v Incorporated General Insurances Ltd
[1]
the
C
ourt
said that the parties are limited to the pleadings delivered as a
party will not be allowed to direct the attention of his
opponent to
one issue and come to Court to canvass another. Accordingly a
pleading should be so phrased that the opposite
party may reasonably
and fairly be required to plead thereto.
[2]
[12]
The
above is so because, amongst other things, the pleadings
“
enable
the parties to decide in advance of the trial what evidence will be
needed. From the pleadings an appropriate method of trial
can be
determined”
.
[3]
To achieve this objective a pleading should be precise. In particular
it should not be vague and embarrassing: nor lack averments
necessary
to sustain a cause of action.
[13]
A pleading is vague and embarrassing when
“
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...”.
[4]
A pleading is also vague and embarrassing when an intelligible cause
of action cannot be gathered from it.
[5]
[14]
Reading the amended particulars of claim, it is manifest that the
agreements upon which Tracexpress relies
are oral. It is a
requirement of Rule 18(6) that in those circumstances a party
pleading such an agreement ought to set out in
full the terms of the
oral agreements failing which the particulars of claim will lack
averments necessary to sustain a cause of
action. The averment of an
oral agreement without pleading their full terms is also vague and
embarrassing in the sense that Xsun
Transport does not know the
terms. As such, it is embarrassed because of which it is prejudice as
it cannot plead thereto.
[15]
The load delivery instructions amount to written distinct and
separate agreements and there is no argument
to the contrary by
Tracexpress. Accepting that to be the position, Tracexpress has
neither attached the load delivery instructions
to the amended
particulars of claim, nor has it pleaded the terms thereof. Xsun
Transport is, like in the case of the oral agreement,
equally
embarrassed due to the vagueness. It is as such, prejudice because it
is unable to plead to the amended particulars of
claim.
[16]
Tracexpress alleges that the operators of Xsun Transport carry
responsibility for the preparation of the
load confirmation and
pricing. In doing this, it omits to mention who these operators were
when the transport agreements were concluded.
Needless to state that
in the absence of disclosure of the operator’s names, the
particulars of claim are rendered vague
and embarrassing and Xsun
Transport is indubitably prejudiced because it cannot plead to the
claim. To state the obvious –
the names are significant to
avoid any person claiming to have been an operator for Xsun Transport
at the time when the converse
is true.
[17]
Turning to the allegation that Tracexpress transferred goods on
behalf of Xsun Transport in exchange for
a service fee and that the
fee would be charged against it in accordance with an invoice, which
Tracexpress would render to Xsun
Transport. The unmistakable
difficulty here is, as pointed out by Xsun Transport, that
Tracexpress fails to mention when and where
were the goods conveyed.
Additionally, Tracexpress is silent on who received the goods when
they were delivered at their destination.
Again, without these
particulars, the amended particulars of claim are vague and
embarrassing. For that reason, Xsun Transport
is prejudice insofar as
it is unable to plead to the claim
[18]
Also stemming from the preceding allegation is that Tracexpress omits
to state the amount of the service
fee and how it computed it. In
fact, there is a conglomerate of questions that arise because of the
allegation above. In addition
to what I have already stated -
Tracexpress is mute on who agreed to the service fee, where, when and
who gave instructions to
transport and who received them.
[19] I
am mindful that it can be contended that these defects in the
particulars of claim can be cured by a request
for further
particulars for trial. Well, that is not the assertion on which
Tracexpress relies and in any event, not all the defects
in this
specific instance can be remedied by request for further particulars
for trial.
[20]
Lastly, Xsun Transport refers to Annexure “OS45” and
points out that without Tracexpress stating
the agreement with which
it is associated, the annexure is vague leaving it embarrassed and
unable to plead to the amended particulars
of claim and therefore
prejudiced. That is not the only problem though. The annexure is
evidently undecipherable and illegible
to the naked eye. It would not
only be unfair but also unreasonable to expect any person to make out
the contents of the annexure.
Insofar as the other annexures are
concerned, I am unable to conclude that they are nonsensical, unclear
and illegible. That is,
in any case, of little assistance to
Tracexpress in view of the outcome of this judgment.
[21] In
the result, the two exceptions are upheld in consequence of which I
make the following order:
1.
The Court upholds the two exceptions with
costs;
2.
The particulars of claim are struck off and
Xsun Transport is directed to amend its particulars of claim within
10 days of the date
of this order.
B A MASHILE
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA
MPUMALANGA DIVISION,
MBOMBELA
APPEARANCES:
Counsel
for the Plaintiff:
Mr
FM Makhanya
Instructed
by:
Floyd
Makhanya Incorporated
C/O
Nomaswazi Shabangu Attorneys
Counsel
for the Defendant / Excipient:
Adv
JA Van Wyk
Instructed
by:
Swanepoel
& Partners Inc
Date
of Judgment:
09
July 2024
[1]
1976 (2) SA 179
(D) at 182A
[2]
Trope
v South African Reserve Bank
1992
(3) SA 208 (T)
[3]
Jowell
v Brandwell-Jones
1998
(1) SA 836
(W) at 899-903
[4]
Leathern
v Tredoux
1911 NPD 346
at 348
[5]
Keeley
v Heller
1904 TS 104
, Factory Investments (Pty) Ltd v Record
Industries Ltd.
1957 (2) SA 306
(T)