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[2024] ZAKZPHC 76
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Starstruck Trading CC t/a Dynamic Construction and Developments v Kohne and Another (4715/2020P) [2024] ZAKZPHC 76 (29 August 2024)
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IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Case
no: 4715/2020P
In
the matter between:
STARSTRUCK
TRADING CC t/a
DYNAMIC
CONSTRUCTION AND DEVELOPMENTS
(CK
2000/03780/23)
PLAINTIFF
and
NICOLA
JANE KÖHNE
FIRST DEFENDANT
LEON
ROBERT KÖHNE
SECOND DEFENDANT
ORDER
The
following order is granted:
1.
The second defendant’s exception is
dismissed with costs, such
costs to be in accordance with scale B.
JUDGMENT
E
Bezuidenhout J
[1]
The plaintiff issued summons against the two defendants for payment
of the total amount of R907 265.82,
framed as three separate
claims, which emanated from re-building and renovation work done by
the plaintiff at the defendants’
home. The particulars of claim
have already previously been amended.
[2]
The plaintiff pleaded that an agreement was concluded between its
representative, Mr O Dallaway,
and the defendants on 21 February
2017, and proceeded to set out what it alleged were the material
facts of the agreement.
[3]
The plaintiff pleaded further as follows:
‘
4A.1.
On 21 February 2017 Oliver Dallaway, representing the Plaintiff sent
the Defendant an email at 08h34, a copy of which is “B1”.
4A.2.
Oliver Dallaway, representing the Plaintiff, had a conversation with
the Defendants during 21 February 2017, during
which conversation the
parties reached agreement on the material terms set out in paragraph
4 below.
4A.3.
On 21 February 2017, after the aforesaid conversation and at
approximately 20h32, Oliver Dallaway representing the Plaintiff
sent
the Defendants an email, a copy of which is “B2”.
4A.4.
These are the legal conclusions that the Plaintiff contends flow from
these material facts:
4A4.1. the agreement
concluded between the Plaintiff and the Defendants should be
classified either as an oral agreement or as a
partly oral and partly
written agreement;
4A.4.2.
if it is classified as an oral agreement, then annexure “B1”
forms part of the context in which the agreement was concluded and
annexure “B2” constitutes evidence of its terms;
alternatively
4A.4.3.
if it is classified as partly oral and partly written then the
identified
paragraphs of “B1” and/or “B2”
below constitute the written portion of the agreement.’
[4]
Annexure ‘B1’ is an email dated 21 February 2017, sent by
Mr Dallaway to the second
defendant, setting out certain points to be
discussed at a meeting, which included, inter alia, building costs
and monthly fees.
[5]
Annexure B2 is another email from Mr Dallaway, sent to both
defendants on 21 February 2017, after
the meeting had taken place,
‘just to confirm a few things’. At least 18 items are
listed, which clearly relate to
the issues discussed in respect of
the construction.
[6]
The plaintiff pleaded in para 4 that the plaintiff and defendants
were parties to a binding agreement,
regardless of whether it should
be classified as oral or as partly written and partly oral. The
plaintiff pleaded further as follows:
‘
4.1
The Plaintiff would perform certain renovations and rebuilding to the
Defendants’ residence at
F[...], D[...] A[...], KwaZulu-Natal.
The Plaintiff would carry out such renovations and rebuilding in
accordance with instructions
received from the Defendants from time
to time. The Defendants would pay the Plaintiff the costs incurred by
it in procuring the
materials, labour and specialist workmanship
necessary to execute the renovations and rebuilding (“the
building costs”).
This term was agreed orally. It is referred
to and confirmed at paragraph 1, 3, 4, 5 and 7 of B1 and paragraphs
1, 9 and 11 of
B2.
4.2
The estimate price for the building costs at inception of the
contract, excluding the project management
fee would be the sum of
R3 954 705.06 in accordance with the attached annexure
“A1-A4”, subject to any agreed
variations;
4.3
The Defendants would pay to the Plaintiff the sum of R400 000.00
on or before the 5
th
March 2017 and such further amounts
as the Plaintiff may require and request from time to time for the
performance of its obligations.
This was agreed orally and recorded
in paragraph 15 of B2;
4.4
The agreed price would include a monthly supervision fee of
R50 000.00 for the plaintiff. This
was agreed orally.
4.5
The Plaintiff would, in addition, be paid a project management fee
upon completion or termination of
the contract in an amount agreed
upon between the parties alternatively in a reasonable amount in
accordance with industry norms,
being between 10 and 20% of the
building costs. This was agree orally.
4.6
The Defendants would vouch for all costs related to the building
works as set out and discussed in the
various annexures hereto,
including the costs of storing any materials. It was a tacit term of
the agreement that the first and
second Defendants were jointly and
severally liable to the Plaintiff to pay the agreed amounts.’
[7]
Annexures ‘A1’ to ‘A4’ were schedules of
itemised items, provisional costings
variations and comments or
notes.
[8]
The second defendant’s exception is mainly directed at the
aforementioned paragraphs of
the particulars of claim, which, it is
alleged, are vague and embarrassing.
[9]
The second defendant states that the plaintiff’s cause of
action is based on a binding agreement,
as pleaded in para 4 of the
particulars of claim. The plaintiff does not identify whether the
agreement was oral, or oral alternatively
written. Instead, the
plaintiff refers to the exchange of the two emails, annexures ‘B1’
and ‘B2’, as well
as a conversation during which the
parties allegedly reached an agreement on the terms pleaded in para 4
of the particulars of
claim.
[10]
The second defendant further states that in para 4A.4, the plaintiff
pleaded that the agreement pleaded in
para 4 and which agreement was
concluded during the conversation on 21 February 2017, must as a
matter of law be classified as
an oral agreement or as a partly oral
and partly written agreement.
[11]
The second defendant complains that the assertions as to the nature
of the agreement and the terms thereof,
and in particular whether
they are written, oral, or partly written and partly oral, are
contradictory in that:
(a)
In para 4A.2, the entire agreement is alleged to have been
concluded
‘during a conversation’.
(b)
The emails, annexures ‘B1’ and ‘B2’,
are not
alleged to form part of the written agreement, only possibly to be
‘classified as such’.
(c)
The fact that the two emails exist alongside the conversation,
is
alleged to lead to the legal conclusion that the agreement must be
classified as either oral, or partly oral and partly written,
in
which event the emails are to constitute the written portions of the
agreement.
[12]
The second defendant also stated that in paras 4.1, 4.3, 4.4 and 4.5,
all the material terms are alleged
to have been concluded orally and
not orally or alternatively partly written and partly oral.
[13]
The second defendant concluded by stating that it was impossible to
establish from the particulars of claim
whether the plaintiff relies
on an oral agreement, or a partly oral and partly written agreement,
which terms were oral and written.
[14]
Much has been said about a court’s approach to exceptions. In
Merb
(Pty)
Ltd v
Matthews,
[1]
the general principles were summarised, and the following was held:
‘
Where
an exception is raised on the ground that a pleading lacks averments
necessary to sustain a cause of action, the excipient
is required to
show that upon every interpretation that the pleading in question can
reasonably bear, no cause of action is disclosed.
It is trite that
when pleading a cause of action, the pleading must contain every fact
which would be necessary for the plaintiff
to prove, if traversed, in
order to support his right to judgment (facta probanda). The facta
probanda necessary for a complete
and properly pleaded cause of
action importantly does not comprise every piece of evidence which is
necessary to prove each fact
(being the facta probantia) but every
fact which is necessary to be proved.
’ (Footnotes
omitted.)
[15]
According to
Erasmus
,
[2]
the exception that a pleading is vague and embarrassing
‘
is
intended to cover the case where, although a cause of action appears
in the summons there is some defect or incompleteness in
the manner
in which it is set out, which results in embarrassment to the
defendant. An exception that a pleading is vague
and
embarrassing strikes at the formulation of the cause of action and
not its legal validity.
’
(Footnotes omitted.)
[16]
Erasmus
sums up the applicable test in deciding exceptions based on vagueness
and embarrassment as follows:
[3]
‘
(a)
In
each case the court is obliged first of all to consider whether the
pleading does lack particularity to an extent amounting to
vagueness.
If a statement is vague it is either meaningless or capable of more
than one meaning. To put it at its simplest:
the reader must be
unable to distil from the statement a clear, single meaning.
(b)
If
there is vagueness in this sense the court is then obliged to
undertake a quantitative analysis of such embarrassment as the
excipient can show is caused to him by the vagueness complained of.
(c)
In
each case an ad hoc ruling must be made as to whether the
embarrassment is so serious as to cause prejudice to the excipient
if
he is compelled to plead to the pleading in the form to which he
objects. A point may be of the utmost importance in one
case,
and the omission thereof may give rise to vagueness and
embarrassment, but the same point may in another case be only a minor
detail.
(d)
The
ultimate test as to whether or not the exception should be upheld is
whether the excipient is prejudiced.
(e)
The
onus is on the excipient to show both vagueness amounting to
embarrassment and embarrassment amounting to prejudice.
(f)
The
excipient must make out his case for embarrassment by reference to
the pleadings alone.
(g)
The
court would not decide by way of exception the validity of an
agreement relied upon or whether a purported contract may be void
for
vagueness.
’ (Footnotes omitted.)
[17]
Counsel for the second defendant, Mr Stokes SC, referred to
the
provisions of Uniform rule 18(4) in terms of which every pleading
‘shall contain a clear and concise statement of the
material
facts upon which the pleader relies for his or her claim …
with sufficient particularity to enable the opposite
party to reply
thereto’.
[18]
Mr Stokes also referred to
Erasmus
[4]
where reference was made to
Maharaj’s
Coach and Bus Hire CC v Dealership Middelburg Man (Pty) Ltd
,
[5]
where Koen J found it regrettable that the plaintiff’s
allegations were not helpful in identifying the crisp issues
in
dispute and stated:
‘
It
is regrettable that the allegations in the plaintiff’s
declaration were not helpful in crisply identifying the true issues
in dispute between the parties. The rules regarding pleadings and
practice require that the plaintiff’s case be pleaded in
separate distinct averments setting out in clear concise statements
the material facts upon which it relies for the relief claimed.
Instead, the declaration reads in places like extracts from the
affidavits in the application, which it was conceded during argument
to be. The declaration followed a narrative form, with reference to
various annexures annexed thereto, which were invariably referred
to
with the injunction that “the contents of [the particular
annexure] be incorporated herein as though specifically averred
to.”
That is contrary to accepted practice. It is not expected of a court,
even in application proceedings, to have to trawl
through annexures
to try and determine which portions of the annexures are relevant,
and to identify the possible
facta
probanda.
’
(Footnotes
omitted.)
[19]
Mr Stokes submitted that there was a clear disconnect between the
facts pleaded and the conclusions sought
to be drawn. With reference
to para 4A.4, it was submitted that it was furthermore confusing to
have to plead to ‘legal conclusions’.
It was also
submitted that no facts in respect of a written agreement were
pleaded and furthermore that no particular terms were
pleaded. It was
submitted that absent a factual allegation of the conclusion of a
written, or partly written agreement, the second
defendant is unable
to establish on what basis the agreement should, as a matter of law,
be classified either as an oral agreement
or as a partly oral and
partly written agreement. This makes the particulars of claim vague
and embarrassing.
[20]
Counsel for the plaintiff, Mr Lamplough SC, submitted that it is
clear from the particulars of claim that
the parties concluded an
agreement on a very informal basis. In respect of the second
defendant’s complaint regarding the
legal conclusions to be
drawn, it was submitted that it is not possible for the plaintiff to
draw an absolute distinction between
facts and conclusions, as it is
difficult to distinguish between the two. It was further submitted
that there is, however, no obstacle
to plead, as what is contained in
the particulars is clear to understand: the plaintiff’s
representative sent an email containing
certain proposed terms; on
the same day, he attended a face-to-face meeting with the defendants;
and that evening sent a confirmatory
email recording certain
contractual terms or arrangements.
[21]
It was further submitted on behalf of the plaintiff that it is not
always easy to categorise an agreement
as either oral or partly
written and partly oral. It was also submitted that the plaintiff’s
principal case is that the agreement
was concluded orally but that
the two emails were also sent on the same day containing certain
terms. These emails are relevant
because they provide context and
were written contemporaneously. It was submitted that the question
underlying the exception is
whether the emails should be considered
as the written portion of the partly written and partly oral
agreement or whether they
were simply contemporaneous notes or an
aide-memoire
.
[22]
Mr Lamplough referred to
Christie’s
Law of Contract
[6]
where the following was stated:
‘
The
terms of the contract are the promises agreed on by the parties that
together make up the contract. When there is doubt or dispute
about
what statements, oral or written, or conduct should be included in
the contract as terms a court may have to carry out a
two-stage
inquiry to decide first, what was said, written or done and second,
whether it must be included among the terms of the
contract.’
It was submitted that the
court hearing the matter will have to undertake this enquiry but in
the meantime, the plaintiff, by including
and referring to annexures
‘B1’ and ‘B2’, has provided material which
would be relevant at the trial. It
was also submitted that in light
of the plaintiff's difficulty in classifying the agreement, it
pleaded that on the particular
facts, the agreement should be
labelled as either an oral agreement or a partly written and partly
oral agreement.
[23] It
was further submitted by Mr Lamplough that the second defendant is
required to establish either vagueness,
embarrassment, or prejudice,
which he has failed to do, because the allegations that the
defendants are called upon to answer are
clear. It was submitted that
the second defendant has failed to point to any vagueness or
embarrassment, as there is none. It was
submitted that if the
defendants wished to plead that the agreement could only be an oral
agreement and not a partly written and
partly oral agreement, they
were free to do so, as the point is immaterial and will have no
bearing on the outcome of the case.
It was submitted that the
exception should accordingly be dismissed with costs.
[24] I
am not convinced that the second defendant has demonstrated vagueness
amounting to embarrassment and embarrassment
amounting to prejudice.
The second defendant clearly has a difficulty with the label to be
attached to the agreement. I agree with
the submissions by Mr
Lamplough that there are no obstacles to plead to the particulars of
claim, as the facts are clear and that
it is the label in respect of
the type of agreement that is posing a difficulty for the plaintiff,
and the defendants, for that
matter. The particulars of claim are
framed in an unusual way (Mr Lamplough was quick to point out that he
was not the draughtsman)
but as pointed out in
Christie’s
,
the court will determine the terms of the agreement in due course. In
the meantime, there are sufficient allegations to enable
the
defendants to plead. I am of the view that it has not been shown that
there is some defect or incompleteness. The plaintiff
has, on the
contrary, included the emails as additional information which will
assist the parties and the court in due course to
determine the exact
terms of the agreement. I am accordingly of the view that the
exception must fail. No submissions were made
on the question of
costs or the scale thereof. In my view there is no reason to deviate
from the general rule that costs should
follow the result. As far as
the scale is concerned, I am of the view that the appropriate scale
would be scale B.
[25] I
grant the following order:
1.
The second defendant’s exception is dismissed with costs, such
costs to be in accordance
with scale B.
E
BEZUIDENHOUT J
Date
of hearing: 4 June 2024
Date
of judgment: 29 August 2024
Appearances:
For
the second defendant:
Mr A
Stokes SC
Instructed
by:
Shepstone
& Wylie
24
Richefond Circle, Ridgeside Office Park
Umhlanga
Rocks
C/O
Shepstone & Wylie
Tel:
031 575 7000
Email:
jmanuel@wylie.co.za
For
the plaintiff:
Mr AJ
Lamplough SC
Instructed
by:
Thornhill
& Company
50
Old Main Road
Hillcrest
C/O
Bertus Appel Attorneys
Tel:
033 3423551
Email:
bertusappelattorneys@gmail.com
thornhill@iafrica.com
[1]
Merb
(Pty)
Ltd and others v
Matthews
and others
[2021] ZAGPJHC 693 para 13.
[2]
D E van Loggerenberg
Erasmus:
Superior Court Practice
(RS 23, 2024) at D1 Rule 23-11 (‘
Erasmus
’).
[3]
Ibid
at D1 Rule 23-13 to 14.
[4]
Ibid
at D1 Rule 18-8.
[5]
Maharaj’s
Coach and Bus Hire CC v Dealership Middelburg Man (Pty) Ltd and
others
[2022]
ZAKZPHC 34 para 15.
[6]
G
B Bradfield
Christie’s
Law of Contract
8
ed (2022) at 193-194 (‘
Christie’s
).