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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 2021/37505
REPORTABLE: NO OF INTEREST TO OTHER JUDGES: NO ………………………. ……………………….. DATE SIGNATURE
In the matter between: -
THE TRUSTEES OF THE TIME BEING OF Excipient
THE INDEPENDENT DEVELOPMENT TRUST
and
DEALFLOW ACQUISITIONS (PTY) LTD Respondent
DEALFLOW ACQUISITIONS (PTY) LTD Plaintiff
REGISTRATION NO: 2010/007602/07
And
THE TRUSTEES OF THE TIME BEING OF Defendant
THE INDEPENDENT DEVELOPMENT TRUST
_______________________________________________________________________
JUDGMENT
_______________________________________________________________________
INTRODUCTION
[1] The Excipient (Defendant) noted an exception to the Plaintiff’s particulars of
claim as amended on the basis that it lacks the necessary averments to sustain a
cause of action and that the said particulars of claim are vague and
embarrassing.
Parties in this matter will be referred to as they are in the main action for the
sake of clarity. i.e Plaintiff and Defendant.
[2] The grounds relied upon by the Defendant are the following: -
That there is a discrepancy in who is alleged to have concluded the Professional
Client Service Agreement (PROCSA).
That there is no lis / dispute between the Plaintiff and the Defendant;
The third exception is that the exception has been instituted in the wrong court.
That the Plaintiff has instituted the proceedings in the wrong forum.
The fifth exception is that the Plaintiff’s action has prescribed.
The Plaintiff in resisting the exception raised a point in limine to the effect that
the Defendant failed to comply with Rule 23 (1) (a) of the Uniform Rules of
Court. It is contended by the Plaintiff that the purported grounds of exceptions
as tabulated by the defendant are baseless in law or fact.
[3] The background to this matter can be summarized as follows: -
The Plaintiff caused the summons to be issued against the defendant during 29
July 2021. A notice to defend was filed on or about the 16 August 2021. The
plaintiff amended its particulars of claim in line with Rule 28 of the Rules and
served and filed the amended particulars of claim on the defendant on or about
27 September 2021. An exception was noted and served on the Plaintiff during
27 September 2021.
[4] The issue to be determined in this application is whether the grounds relied upon
by the defendant are sufficient to sustain an exception. Put differently, whether
the plaintiff’s particulars of claim as amended do not disclose cause of action and
that they are vague and embarrassing.
APPLICABLE LEGAL PRINCIPLES
The law relating to exceptions
[5] Exceptions are dealt with in terms of Rule 23 (1) of the Uniform Rules of Court.
The purpose of the exception procedure is to avoid the leading of unnecessary
evidence and to dispose a case in whole or in part in an expeditious and cost
effective manner.
In Colonial Industries Ltd .V. Provincial Insurance Co ltd 1920 CPD 627
at 706 the court held that
“… the form of pleading known as an exception is a valuable part of our system
of procedure if legitimately employed, its principal use is to raise and obtain a
speedy and economical decision of questions of law which are apparent on the
face of the pleadings it also serves as a means of taking an objection to
pleadings which are not sufficiently detailed or otherwise lack lucidity and are
thus embarrassing”
Rule 23 (1) provides as follows: -
[6] Where any pleading is vague and embarrassing or lack averments which are
necessary to sustain an action or defence, as the case may be the opposing
party, may within period allowed for filing any subsequent pleading, deliver an
exception thereto and may set it down for hearing in terms of paragraphs (f) of
sub rule 4/5 of Rule 6, provided that where a party intends or take an exception
that a pleading is vague and embarrassing he shall within the period allowed as
aforesaid by notice afford his opponent an opportunity of removing the cause of
complaint within 10 days from the date on which a reply to such a notice is
received or from the date on which such reply is due, deliver his exception.
See Kahn .V. Stuart 1942 CPD 386 at 392
[7] It is upon the excipient (defendant) to show that a pleading is excipiable. The
excipient (defendant) must establish that the pleading is excipiable on every
interpretation that can reasonably be attached to it.
See Southernpoort Developments (Pty) Ltd .V. Transnet Ltd 2003 (5)
SA 665 (w)
POINT IN LIMINE
[8] The plaintiff argues that it was not afforded an opportunity to remove the cause
of complaint by the defendant as prescribed in Rule 23 (1) (a) as the defendant’s
first and second exceptions are grounded on the particulars of claim being vague
and embarrassing and not disclosig a cause of action.
[9] It is clear and apparent that gleaning from the defendant’s application, the
plaintiff was not afforded the necessary chance to remedy the defendant’s first
and second grounds of exception.
Rule 23 (1) (a) makes it peremptory that the plaintiff shall be afforded 15 days
to remove the cause complaint of when a party takes an exception based on a
pleading being vague and embarrassing.
[10] The non-compliance with the provisions of Rule 23 (1) (a) cannot simply be
ignored. I regard such contravention in a serious light as it goes to the root of
the first and second grounds of the defendant’s exceptions.
The point in limine is accordingly upheld and I find that failure to comply with
the provisions of Rule 23 (1) (a) is premature.
[11] The defendant contended that the particulars of claim herein are vague and
embarrassing and do not disclose a cause of action in that: -
The plaintiff stated in its particulars of claim that the defendant was represented
by Mqodiso Makupula and the plaintiff by Mzwandile Gcelu when the parties
concluded PROCSA, and the effect of the alleged discrepancy has a fatal
consequence on the plaintiff’s cause of action.
[12] It is further alleged that the plaintiff’s particulars of claim lacks the necessary
particularity as required by Rule 18.6 of the Rules of Court. The defendant is of
the view that it cannot distill a clear and a single meaning as to who represented
the parties without causing an embarrassment to itself which is prejudicial to its
case.
[13] According to the defendant, the plaintiff in its particulars of claim, paragraph 8.5
thereof was supposed to proof where its invoices were sent to and who
approved the said invoices as correct and to enable the defendant to settle the
invoices in question.
The defendant alleged that paragraph 8.5 of the particulars of claim is
meaningless and is thus vague and embarrassing and prejudicial to its case.
In the absence of proof of who the invoices were sent to and proof of receipt
and approval thereof, the said invoices are not due and payable and as such
there is no dispute between the parties and the plaintiff’s particulars of claim are
thus excipiable.
[14] In response the plaintiff stated that the defendant mentioned that it was
represented by Lwazi Jakavula while Mqodiso Makapula represented the
defendant.
The PROCSA however reveal that the plaintiff was represented by Mzwandile
Gcelu.
The plaintiff contended that nowhere in the PROCSA it is indicated that the
plaintiff was represented by the alleged Lwazi Jakavula.
The plaintiff refuted the allegations that it made any contradictory statement as
to who represented it in the PROCSA.
[15] It is the plaintiff’s contention that the PROCSA relied upon by the defendant was
not signed and forwarded to the defendant. As to who represented the parties in
the conclusion of their agreement is a matter of evidence so argued the plaintiff.
The plaintiff’s argument is that in terms of its amended particulars of claim,
paragraph 8.5 does not exist and as such the exception based on paragraph 8.5
is also not existing. Even as it may be argued that the defendant is actually
referring to paragraph 9.5 of the particulars of claim, the defendant was
supposed to have complied with Rule 28 of the Rules of Court which it failed to
do. The plaintiff called for the dismissal of the first and seconds grounds of the
defendant’s exception with costs.
[16] The principles applicable to vague and embarrassing exceptions were said to be
the following: -
That the pleading is vague and embarrassing if it is either meaningless or
capable of more than one meaning, it involves a quantitative assessment.
The embarrassment must be serious so as to cause prejudice to the excipient
if he / she is compelled to plead to the pleading.
The excipient must prove the embarrassment and prejudice.
Reference must only be made to the pleadings alone when the case for
exception is made.
That the admission of one or two sets of contradictory allegations in the
plaintiff’s particulars of claim would destroy the plaintiff’s cause of action.
See Nasionale Aarappelkooperasie BPK .V. Pricewaterhouse Coopers
2001 (2) SA 791 T.
See Levitan .V. Newhaven Holiday Enterprises cc 1991 (2) SA (c) at
298 J and 300G
[17] The test for an exception to succeed is for the excipient to establish that the
pleading is excipiable on every interpretation that can reasonably be attached to
it and that the excipient is prejudiced.
The court held in Madlala .V. City of Johannesburg and another 2019 JOL
41601 (GJ) that in deciding an exception a court will consider the facts alleged
in the pleadings as correct unless they are palpably untrue or so improbable that
they cannot be accepted. A court will only allow an exception based on a
pleading being vague and embarrassing if the excipient will be seriously
prejudiced if the complaint is not removed.
[18] The plaintiff submitted that the defendant’s intention in instituting
the exceptions is intended to delay the plaintiff’s case. Having considered the
facts, the principles and the law pertaining to exceptions to determine whether
the plaintiff’s particulars of claim are vague and embarrassing. I came to the
following conclusion: -
The plaintiff’s particulars of claim in my view contains the cause of action which
it relies on and the defendant will be able to plead as there is sufficient material
facts necessary to be proved in the hearing of this matter.
The contention that there is a discrepancy as to who concluded the PROCSA
between the parties cannot be supported as the Defendant failed to show any
contradictions in the particulars of claim which have the effect of destroying the
Plaintiff’s cause of action. It is apparent that the defendant is not certain about
who represented the parties as the papers before court indicate different parties
to what the defendant alleges as a discrepancy.
The defendant’s reference to paragraph 8.5 of PROCSA which is non existing and
to argue that it cannot thereof distill any meaning thereto and as such the
plaintiff’s pleading is vague and embarrassing is not based on any facts.
I find that the Defendant is not prejudiced as the Plaintiff’s particulars of claim
are not vague and embarrassing as the plaintiff has pleaded a complete cause of
action. The defendant did not discharge an onus bestowed on it that upon every
interpretation in the Plaintiff’s pleading no cause of action has been disclosed.
The defendant’s third exception is premised on the ground that this court lacks
jurisdiction to entertain this matter. It is contended by the defendant that their
agreement, PROCSA, was concluded in Port Elizabeth and the parties’ addresses
are also situated in Port Elizabeth and therefore the Port Elizabeth High Court is
seized with jurisdiction as the cause of action occurred in its area of jurisdiction.
The defendant argues that the plaintiff’s particulars of claim are excipiable as
they do not disclose a cause of action.
[19] On the other hand the plaintiff submitted that the summons were duly served in
Pretoria at the defendant’s head office which falls within the geographical
jurisdiction of this court. The plaintiff argues that the defendant’s assertion that a
court can only have jurisdiction in a place where the cause of action arose, in my
opinion is not correct. The plaintiff averred that it has clearly mentioned that this
court has jurisdiction to hear this matter in that the principal place of business of
the defendant falls within the jurisdiction of this court. It is further argued that
the place where the cause of action arose is only but one element that can grant
the court jurisdiction. The Plaintiff’s view is that the fact that parties in
an agreement has listed their addresses does not necessarily make such an
address a chosen domicilium for purposes of litigation. It is argued that the
parties’ PROCSA did not state that the addresses as provided are the chosen
domicilium for purposes of litigation. Accordingly the defendant’s exception on
jurisdiction has to be dismissed as it is not sustainable.
[20] Section 21 of the Superior Courts Act 13 of 2013 provides that a High Court has
jurisdiction over all persons residing or being in and in relation to all causes
arising within its area of jurisdiction.
It is common cause that the defendant’s head office is situated in Pretoria which
is within this court’s area of jurisdiction. The common law provides that one of
the most factors to be considered when dealing with the issue of jurisdiction is
the doctrine that the issue of jurisdiction depends upon the power of court to
give an effective judgment to issues before it.
See Steytler No .V. Fitzgerald 1911 AD 205 at 346
[21] My view is that since the defendant’s head office is within thus court’s area of
Jurisdiction and the inherent power this court enjoys, this court is empowered to
deal with this matter. I find that effective judgment can be given by this court
and it thus have jurisdiction to entertain the present case. The defendant’s
exception on jurisdiction stand to be dismissed as the defendant did not succeed
in showing that this court lacks jurisdiction.
[22] In the fourth exception, the defendant contended that the Plaintiff instituted its
action in a wrong forum. The defendant refers to clause 18 of their agreement
(PROCSA) that any aggrieved party to their agreement is to first issue a letter of
demand and if there is no satisfactory response to the letter of demand, refer
the dispute to mediation and thereafter to arbitration. Instead of the plaintiff
complying with the provision of clause 18 of PROCSA, it approached the High
Court to adjudicate the parties’ dispute.
The defendant argues that this court does not have jurisdiction to entertain the
plaintiff’s claim and particulars of claim is thus excipiable.
[23] It is disputed by the plaintiff that referral of the dispute either to mediation and
later to arbitration after the issuing of the letter of demand is a matter cast in
stone in terms of clause 18 of PROCSA. Clause 18 of PROCSA provides as
follows: -
“Should any dispute whatsoever arise between the parties, then either party may
declare a dispute by delivering notice of details thereof to the other party which
dispute shall be referred to mediation prior to arbitration”.
[24] Careful reading of clause 18 of PROCSA does not make it mandatory that in the
event of a dispute between the parties, it must refer the dispute to mediation
and thereafter to arbitration. In order for the defendant to rely on the
interpretation of their agreement, it has to demonstrate that it is ambiguous
which I find that the defendant did not succeed to do. I find that there is no
basis to the contention that this Court lacks the necessary powers and
jurisdiction to entertain the parties’ action. This court has inherent power and is
in a position to give effective judgment instituted in this matter.
The defendant failed to demonstrate that the plaintiff’s particulars of claim are
excipiable based on its forth exception and it is therefore dismissed.
[25] The fifth exception is premised on the allegation that the plaintiff’s claim has
prescribed. In support of its contention, the defendant stated that the plaintiff
does not provide proof that it indeed submitted its invoices on the 2 September
2018 and to whom it was sent to. The defendant argues that since the only
invoices allegedly sent to the defendant are dated 10 January 2017, the
plaintiff’s claim expired on 11 January 2020. It is further alleged by the
defendant that the letter of demand from the Plaintiff’s attorneys was sent on 22
June 2021 after one year and five months and it was thus dispatched too late.
The defendant submitted that the plaintiff’s particulars of claim are excipiable
as they do not contain sufficient averments to sustain a cause of action in
respect of the said invoices.
[26] The response of the plaintiff is that the defendant seems not to understand what
the law of prescription provides for.
The plaintiff averred that it stated in paragraph 11 of its particulars of claim that
its invoices were sent and approved by the defendant on the 2 September 2021.
The plaintiff stated that the parties herein agreed that invoices for services
rendered and disbursements incurred, would be settled not later than 30 days
after the accepting or approving of the invoices as correct and final.
It is indeed correct that the due date of the invoices sent on 02 September 2018
would be 30 days after being accepted and approved, that is 2 October 2018
paragraph 9.5 of the plaintiff’s amended particulars of claim, it is stated clearly
that invoices would be settled 30 days after the acceptance and approval of the
invoices sent to the defendant.
In my view the debt owed by the defendant to the plaintiff became due on the
2 October 2018.
It is settled law that the prescription of debt starts to run when payment
becomes due. The cause of action in this matter therefore arose on the
2 October 2018.
[27] According to the papers before this court, summons was issued and was served
on the defendant during 29 July 2021 before it could prescribe on the 2 October
2021.
I find that the plaintiff’s claim has not prescribed as alleged by the defendant.
The contention by the defendant that the plaintiff’s particulars of claim lack
the necessary averments to sustain a cause of action against the defendant is
rejected and is therefore dismissed as the claim has not prescribed as alleged.
COSTS
[28] It is submitted by the defendant that should the court uphold the third
and fourth exceptions, the plaintiff’s entire claim be dismissed with costs.
The Plaintiff is of the view that the purpose of launching of this application is just
to delay the hearing of this matter as the defendant’s grounds for the exceptions
are bad in law. Failure by the defendant to afford the plaintiff an opportunity to
remove the cause of complainant makes the exception premature. As such the
plaintiff prays that the exceptions be dismissed with a punitive costs order.
[29] The issue whether to award costs is primarily based on two basic rules namely: -
That the award of costs is a matter of judicial discretion by the court;
That the successful party should as a general rule be awarded costs.
See Fripp .V. Gibbon and Company 1913 AD at 354 – 347
[30] The court has to consider all the facts of each case when exercising its discretion
and has to be fair and just to all the parties.
An award of costs on a punitive scale will not be easily granted by the court
unless there are exceptional and appropriate circumstances warranting the court
to do so. The court will award costs on the punitive scale in order to penalize
dishonest, improper, fraudulent reprehensible vexatious, frivolous, malicious,
reckless or a party has committed a grave or blameworthy conduct in the
conduct of the case.
See Van Dyk .V. Conradie 1963 (2) SA 413 at 418 E-F
See also Madyibi .V. Minister of Safety and Security 2008 JDR 0505 (TK)
at paragraph 31.
It is clearly discernible from the papers filed of record that the defendant omitted
and failed to comply with the provisions of Rule 23 (1) (a) of the Rules of Court.
The defendant did not afford the plaintiff the opportunity to remove the cause of
complaint in his exception application.
This court takes a very dim view for non-compliance with the Rules of Court
without any reasonable justification to do so.
Non-compliance with Rule 23 (1) (a) is not only premature but fatal as
reliance to the first and second grounds of the exception are based on the
grounds that such particulars of claim are vague and embarrassing and that no
cause of action is disclosed. The defendant’s grounds in my view are not
sustainable.
The third, fourth and fifth grounds for the exception are with respect bad in law
as there are no legal basis that the plaintiff’s particulars are excipiable.
[31] After considering all the facts in this application, a punitive costs order is
warranted against the defendant. I find that the conduct of the defendant is not
only slack, blameworthy but also reckless as in my view, there is no basis in law
or fact to justify any of the grounds relied upon by the defendant.
The purpose of an award of costs to a successful litigant is to indemnify that
party for the expense to which it has been put through having unjustly
compelled to initiate or defend litigation as the case may be.
See Nienaber .V. Struckey 1946 AD 1049 at paragraph 1059.
Indeed the plaintiff was put through unnecessary trouble and expenses and
deserves to be awarded costs on attorney and client scale.
ORDER
The excepient’s exceptions are dismissed;
The excipient to pay the costs on attorney and client’s scale.
__________________________
S S MADIBA
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES
Heard on: 14 FEBRUARY 2022
Date of Judgment: 11 NOVEMBER 2022
Plaintiff’s Attorneys: BAZUKA & COMPANY INC.
3RD FLOOR BLACK HEATH MEWS
258 BEYERS NAUDE DRIVE
RANDBURG
TEL: 011 431 4144
E MAIL: bazukam@bazukalaw.co.za
Defendant’s Attorneys: MOTSOENENG BILL ATTORNEYS
85 WESYERN SERVICE ROAD
WENDYWOOF
SANDTON
TEL NO: 011 463 9401
E MAIL: admin@mbaincoporated.co.za