About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Gqeberha
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Gqeberha
>>
2024
>>
[2024] ZAECQBHC 55
|
|
Zoetendal Vineyards (Pty) Ltd v Aquest Colsen (Pty) Ltd (708/2024) [2024] ZAECQBHC 55 (1 October 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No: 708/2024
Date
Heard: 12 September 2024
Date
Delivered: 1 October 2024
In
the matter between:
ZOETENDAL
VINEYARDS (PTY) LTD
RESPONDENT / PLAINTIFF
and
AQUEST
COLSEN (PTY) LTD
APPLICANT / DEFENDANT
JUDGMENT
MULLINS
AJ:
[1]
This is an application brought by the Defendant
[1]
to declare certain allegations in the Plaintiff’s particulars
of claim excipiable on the basis that they are vague and
embarrassing,
alternatively that the particulars of claim lack the
necessary averments to sustain the cause of action.
[2]
During argument the Defendant’s counsel, Ms
Morris
,
quite correctly did not pursue the alternative relief. It
remains to determine whether the allegations objected to are vague
and embarrassing as envisaged by rule 23(1) of the Uniform Rules of
Court.
[3]
The matter involves a dispute over the terms of a contract concluded
between the parties
in terms of which the Plaintiff claims payment of
the balance of the contract paid.
[4]
The averments in the particulars of claim to which the Defendant
objects read as follows:
(a)
“4. During or about
June 2021 and at Cape
Town, the parties entered into a
partly
written
and partly oral contract
, the terms of
which were as follows:
…
4.3.
It was further agreed that payment of the purchase price would be
made as and when
certain milestones
of the
manufacture, assembly, delivery and commissioning and handover of the
Water
Plant had been met.
…”
(b)
“5. The Plaintiff
made payment as and when
the milestones
had been met to the
Defendant, the total amount having been paid by the Plaintiff being
R2,695,000.00 (Two Million Six Hundred
and Ninety-Five Thousand
Rand), and with an amount of R805,000.00 (Eight Hundred and Five
Thousand Rand) becoming due only after
delivery, commissioning, and
handover by the Defendant.”
(c)
“7. During or about
September 2022, and
prior to delivery, commissioning and handover of
the Water Plant, the parties agreed on a
conditional addendum
to the agreement, in terms of which the parties agreed as follows:
…”
.
(Underlined for emphasis).
[5]
With regard to the introductory portion of paragraph 4 of the
particulars of claim
the Defendant’s objection is that it does
not comply with rule 18(6), in that the written portion of the
contract is not
attached.
[6]
With regard to paragraph 5, read with sub-paragraph 4.3, of the
particulars of claim
the complaint is that without knowing the exact
terms of the milestones the Defendant is unable to plead thereto.
[7]
With regard to paragraph 7 of the particulars of claim the Defendant
relies again
on rule 18(6), in that it is not pleaded whether the
conditional addendum is oral or in writing and, if in writing, a copy
thereof
is not attached. In addition, the place where the
conditional addendum was concluded and the identity of the persons
who
represented the parties is not pleaded.
[8]
The Plaintiff, who was represented by Mr
Moela
, argued that
one should not look at pleadings through a magnifying glass and that,
while the particulars of claim may not be perfect,
the Defendant was
able to plead thereto and if necessary in due course request
particulars for trial and/or rely on discovery.
It was further
argued that there was no prejudice to the Defendant.
[9]
Mr
Moela
had another string to his bow. He argued that
the Defendant had adopted the incorrect procedure. It should
have proceeded
by way of rule 30.
[10]
I pause to mention that rule 30 was raised for the first time in
argument before me. When
I pointed this out Mr
Moela
(who was not responsible for the heads of argument) he submitted that
as it was a legal point it was permissible to raise it at
any stage.
In the circumstances he was entitled to argue the point, which
was responded to by counsel for the Defendant.
[11]
It should also be pointed out that in the present context the
reference to rule 30 should in
fact be to rule 30 read with rule 30A
(which replaced sub-rule 30(5)), but nothing turns on this as the
argument, and the opposition
thereto, was clearly premised on the
provisions rule 30A, which provides as follows:
“
30A
Non-compliance with Rules and Court Orders
(1)
Where a party fails to comply with these rules or with a request made
or notice given pursuant thereto, or with an order or direction made
by a court or in a judicial case management process referred
to in
rule 37A, any other party may notify the defaulting party that he or
she intends, after the lapse of 10 days from the date
of delivery of
such notification, to apply for an order –
(a)
that such rule, notice, request, order or direction be complied with;
or
(b)
that the claim or defence be struck out.”
[12]
Before dealing with the three grounds of exception it would be
apposite to summarize the principles
applicable to an exception which
is taken on the basis that a pleading is vague and embarrassing.
I can do no better than
to quote McCreath J in
Trope
v South African Reserve Bank and Another
(at 211B – C):
[2]
“
An exception 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). As to whether there is prejudice, the ability of the
excipient to produce an exception-proof plea is not
the only, nor
indeed the most important, test – see the remarks of Conradie J
in Levitan v Newhaven Holiday Enterprises CC
1991 (2) SA 297
(C) at
298G-H. If that were the only test, the object of pleadings to
enable parties to come to trial prepared to meet each
other’s
case and not be taken by surprise may well be defeated.”
[13]
In
Quinlan v MacGregor
(quoted in the above passage in
Trope
)
the following was stated (at 393G – H):
“
It seems to me
that 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 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, in his
efforts to plead to the offending paragraph,
by the vagueness
complained of. In each case the Court must, in my judgment,
make an ad hoc ruling as to whether the embarrassment
is, or is not,
so serious as to cause prejudice to the excipient if he is compelled
to plead to the paragraph in the form to which
he objects. It
seems to me that the eventual test as to whether the exception should
be upheld or not is whether the excipient
is prejudiced.
Furthermore, it seems to me that the onus is on the excipient to show
both vagueness amounting to embarrassment
and embarrassment amounting
to prejudice. Unless he can do this, the exception, in my
judgment, must be dismissed.”
[14]
It has also been held that an over-technical approach should not be
adopted,
[3]
that the court looks
benevolently rather than over-critically at pleadings,
[4]
that an excipient must satisfy the court that it will be seriously
prejudiced if the offending pleading were allowed to stand and
that a
very clear and strong case must be made out before an exception can
succeed.
[5]
[15]
In other words, the bar is set very high. In
Van
Zyl NO and Another v Smit
[6]
the
following was stated:
“
[18]
An exception that a pleading is vague or embarrassing will not be
upheld unless the excipient will be
seriously prejudiced
. The
excipient has a duty to persuade the court that the pleading is
excipiable
on any interpretation
that can be attached to it.
An exception that a pleading is vague and embarrassing is not
directed at a particular paragraph within
a cause of action: it goes
to the whole cause of action, which must be demonstrated to be vague
and embarrassing. Such an exception
strikes at the formulation of the
cause of action and not its legal validity. An exception that the
pleading is vague and embarrassing
will not be allowed unless the
excipient will be
seriously prejudiced
if the offending
allegations were not expunged. The court has to consider as a test
for vagueness whether the pleading does lack
particularity to an
extent amounting to vagueness. Where a statement is vague it is
either meaningless or capable of more than
one meaning. The ultimate
test as to whether or not the exception should be upheld is whether
the excipient is prejudiced.”
(Underlined for emphasis).
[16]
I will deal with grounds 1 and 3 together. Rule 18(6) of the
Rules provides as follows:
“
18(6). A party who
in his 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.” (Underlined for emphasis).
[17]
There can be no doubt that rule 18(6) has not been complied with and
that paragraphs 4 and 7
of the particulars of claim do not pass
muster. However, bearing in mind the abovementioned principles,
does this necessarily
mean that the offending paragraphs are
excipiable on the basis that they are vague and embarrassing?
In answering that question
I am very much alive to the fact that
individual paragraphs must not be looked at in isolation, but that
the pleading in question,
in this case a particulars of claim, must
be considered in its entirety. And serious prejudice to the
excipient is a necessary
requirement.
[18]
The Plaintiff relies on a contract, which was amended by a
conditional addendum. The paragraphs
objected to must be looked
at in this light. It is thus essential, in my view, that the
contract be pleaded with sufficient
clarity so as to afford the
Defendant an opportunity to know what case it has to meet.
[19]
Which brings me to Mr
Moela’s
argument that the Defendant should have relied upon rule 30 rather
than taking an exception. In support of his argument he
relied
heavily on
Moosa
and Others NNO v Hassam and Others NNO.
[7]
In that
matter the plaintiffs relied on a written contract but failed to
annex it because they were not in possession of a copy
thereof, and
pleaded as much. The defendants relied on rule 18(6) read
with rule 30. On the facts the court found
that the failure to
attach the written contract was indeed an irregular step as provided
for in rule 30.
[20]
Moosa
did not deal with the question of which procedure (rule 30 versus
rule 23) was the appropriate one in the circumstances.
However
this issue was considered by Heher J in
Jowell
v Bramwell-Jones and Others
[8]
(at pp.
902B – 903B):
“
When the lack of
particularity relates to mere detail, the remedy of the defendant is
to plead to the averment made and to obtain
the particularity he
requires:
(i)
either by means of the discovery/inspection of document procedure
in
terms of the Rules; or
(ii)
by means of a request for particulars for trial of those particulars
which are strictly necessary to enable the defendant to prepare for
trial.
The framers of the Rules
have provided different remedies in Rules 18 and 23. The presumption
is that they are not co-extensive,
but designed to deal with
different situations. Rule 18 is restrictive and sets out the bare
minimum required of a factual averment,
while Rule 23 goes to a
vagueness and embarrassment
which
strikes at the whole of the cause of action pleaded
.
As Cloete J said in
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992
(4) SA 466 (W)
at 469J--470, `. . .
if
a pleading both fails to comply with Rule 18 and is vague and
embarrassing, the defendant has a choice of remedies' (i.e. to
proceed by way of Rule 23 or Rule 30).
I agree with counsel that the crucial distinction between Rules
23 and 30 may be summarised as follows:
(a)
an exception that the pleading is vague and embarrassing may only
be taken when the vagueness and embarrassment strikes at the root
of
the cause of action as pleaded; whereas
(b)
Rule 30 may be invoked to strike out the claim pleaded when
individual averments do not contain sufficient particularity; it
is not necessary that the failure to plead material facts goes to the
root of the cause of action.
It is therefore
incumbent upon a plaintiff only to plead a complete cause of action
which identifies the issues upon which
the plaintiff seeks to
rely
, and on which evidence will be led, in intelligible and
lucid form and which allows the defendant to plead to it. The attacks
mounted
by the defendants that their particulars of claim are vague
and embarrassing cannot found on the mere averment that they are
lacking
in particularity. This might, depending on the circumstances,
allow an application in terms of Rule 30.
An allegation that a
pleading is vague and embarrassing is a far more serious one than a
complaint about particulars
.
Furthermore, in
approaching these exceptions, I shall bear in mind the following
general principles:
(a)
minor blemishes are irrelevant;
(b)
pleadings must be read as a whole; no paragraph can be read in
isolation;
(c)
a distinction must be drawn between the
facta probanda
,
or primary factual allegations which every plaintiff must make,
and the
facta probantia
, which are the secondary
allegations upon which the plaintiff will rely in support of his
primary factual allegations. Generally
speaking, the latter are
matters for particulars for trial and even then are limited. For the
rest, they are matters for evidence;” (Underlined
for emphasis).
[21]
The Plaintiff’s cause of action relies on a contract, which the
Plaintiff has pleaded,
albeit imperfectly. That goes to the
particularity, not the root cause of the action. In the
circumstances, while the
paragraph objected to is irregular, it is
not vague and embarrassing.
[22]
Paragraph 7 is on a similar footing, although the terms of the
conditional addendum are pleaded
at length in nine sub-paragraphs.
It is so that the place where the conditional addendum was concluded,
who represented the
parties and whether it was in writing or oral
have not been pleaded, but the Defendant knows precisely what the
Plaintiff’s
case is in this regard. In addition,
quite apart from pleading the terms of the conditional addendum in
detail, reference
is made in the particulars of claim to an exchange
of correspondence between the parties’ attorneys, which
exchange is attached
thereto, in which,
inter alia
, the
Plaintiff’s case with regard to the conditional addendum (and
other issues) is exhaustively set out.
[23]
As pleadings must be examined holistically and be given their most
benevolent interpretation
I find that paragraph 7 is also not vague
and embarrassing. The fact that the paragraph does not comply
in all respects with
rule 18(6) is another matter. The
Defendant did not rely on a rule 30 and in this regard I must agree
with Mr
Moela
. Most important, the Defendant is not
seriously prejudiced by the manner in which the conditional addendum
has been pleaded.
[24]
I turn now to paragraph 5, read with paragraph 4.3, of the
particulars of claim. The debate
over which procedure (rule 30
versus rule 23) is not of relevance to this complaint. What the
“
milestones”
were is not pleaded, nor can they be
gleaned from the particulars of claim as a whole. In my view,
having pleaded that payment
was to be made on the achievement of
certain milestones it was incumbent upon the Plaintiff to have
specified them. This
goes beyond a mere failure to comply with
rule 18. As the claim is for the payment of monies outstanding,
which payment depended
on the achievement of the milestones, the
failure to detail those milestones goes beyond mere particularity and
is patently prejudicial
to the Defendant and in this regard I find
that the particulars of claim are vague and embarrassing.
[25]
Insofar as costs are concerned, as both parties have been partially
successful, I intend to make
no order as to costs.
[26]
In the circumstances I make the following order:
1.
Paragraph 5, read with sub-paragraph 4.3, of the particulars of claim
is declared
to be vague and embarrassing in that it fails to plead
the details of the “
milestones
” upon which payment
of the contract price was dependent.
2.
The Plaintiff is afforded 15 days from the date of this order in
which to amend
the particulars of claim, failing which the Defendant
shall be entitled to approach the court on the same papers, duly
amplified
if necessary, for the dismissal of the Plaintiff’s
claim.
3.
There will be no order as to costs.
NJ
MULLINS
(ACTING
JUDGE OF THE HIGH COURT)
REPRESENTATION
:
Obo
the Defendant/Excipient:
Adv.
K MORRIS
Instructed
by:
BDLS
ATTORNEYS INC.
60
Second Avenue
Newton
Park
GQEBERHA
Obo
the Plaintiff/Respondent:
Adv.
L MOELA
Instructed
by:
FERREIRA
ATTORNEYS
15
Club Street
Linksfield
JOHANNESBURG
c/o
HARDY ATTORNEYS
Suite
207A, 2
nd
Floor, The Greenhouse
248
Walmer Boulevard
South
End
GQEBERHA
[1]
The parties will be referred to as they are cited in the main
action.
[2]
1992 (3) SA 208 (TPD)
[3]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority
SA
2006 (1) SA 461
(SCA) at 465H.
[4]
First
National Bank of SA Ltd v Perry NO
2001 (3) SA 960
(SCA) at 972I.
[5]
Francis
v Sharp
2004
(3) SA 230
(C) at 240 E – F and 237 D – I.
[6]
[2021] ZAGPPHC 499 (5 August 2021) at para [18]
[7]
2010 (2) SA 410 (KZN)
[8]
1998 (1) SA 836
(WLD)