City of Tshwane Metropolitan Municipality v Constantia Metering Services (Pty) Ltd (4095/17) [2018] ZAGPPHC 627 (23 August 2018)

REPUBLIC OF SOUTH AFRICA

IN TIIE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) NOT REPORTABLE

(2) NOT OF INTEREST TO OTHER JUDGES

(3) NOT REVISED

CASE NO: 4095/17

23/8/2018

In the matter between:

THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY

Excipient

and

CONSTANTIA METERING SERVICES (PTY) LTD

Respondent

INRE:

CONSTANTIA METERING SERVICES (PTY) LTD

Plaintiff

THE CITY OF TSHWANE METROPOLITAN MUNICIPALITY

Defendant

Heard: 6 August 2018

Delivered: 23 August 2018

JUDGMENT

Coram: VAN DER SCHYFF, AJ

Introduction

[1] This is an exception brought by the excipient against the respondent's particulars of claim. The respondent subsequently filed a notice of motion requesting the court to condone any non-compliance with Rules 18(4) and 18(6) of the Uniform Rules of Court. The applicant thereafter contended that the respondent's condonation application constitutes an irregular step and requested the respondent to withdraw the affidavit supporting its condonation application.

[2] As is indicated in the applicant's supplementary heads of argument, the applicant excepts to the respondent's particulars of claim on the following grounds:

1.1 that the pleading is vague and embarrassing; and

1.2 that the respondent's pleading fails to comply with the provisions of Rule 18 (6); alternatively;

1.3 that it lacks averments necessary to sustain a cause of action.

Legal principles

[3] It is stated in lnzinger v Hofmeyr and Others (7575/2010)[2010] ZAGPJHC 104 (4 November 2010) at paragraphs 4 and 5:

"4. An exception that a pleading is vague and embarrassing strikes at the formulation of the cause of action and its legal validity. It is not directed at a particular paragraph within a cause of action but at the cause of action as a whole, which must be demonstrated to be vague and embarrassing. As was stated in Jowell v Bramwell­ Jones and others 1998 [1] SA 836 Wat 905E-H· "I must first ask whether the exception goes to the heart of the claim and, if so, whether it is vague and embarrassing to the extent that the defendant does not know the claim he has to meet... 5. Vagueness amounting to embarrassment and embarrassment in turn resulting in prejudice must be shown. Vagueness would invariably be caused by a defect or incompleteness in the formulation and is therefore not limited to an absence of the necessary allegations but also extends to the way in which it is formulated An exception will not be allowed, even if it is vague and embarrassing unless the excipient will be seriously prejudiced if compelled to plead to pleading against which the objection lies. "

[4] In Jowell v Bramwell Jones (supra)902I-903D Heher J went on to say:

"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;

(d) only facts need be pleaded; conclusions of law need not be pleaded;

(e) bound up with the last-mentioned consideration is that certain allegations expressly made may carry with them implied allegations and the pleading must be so read: cf Coronation Brick (Pty) Ltd v Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 377, 379B, 3790 -H..."

[5] In Lockhat and Others v Minister of Interior 1960 (3) SA 765 (N) 777 the court observed that: "As long as the declaration reasonably states the nature, extent, and grounds of the cause of action, the court will not as a rule, strike out paragraphs as vague and embarrassing. "

[6] The approach to be followed was described in Trope v South African Reserve Bank 1992 (3) SA 208 (T) 22IA-E: "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 ... "

[7] In addition, it is trite law that for purposes of adjudicating an exception, the facts as alleged in the pleadings must be accepted as correct - Marney v Watson & Another 1978 (4) SA 140 (C)144F-G; Theunissen & Andere v Transvaalse Lewendehawe Koop Bpk 1988 (2) SA 493 (A)498D-E.

[8] The excipient's case must be made by reference to the pleadings alone (Deane v Deane 1955 (3) SA 86 (N) 87F-G).

Rules 18(4) and 18(6) of the Uniform Rules of Court

[9] Rule 18(4) of the Uniform Rules of Court requires that: " Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto. "

[10] As indicated above the material facts referred to in Rule 18(4) is what is known as the facta probanda of a claim.

[11] Rule 18(6) of the Uniform Rules of Court prescribes that: "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. "

[12] The court held in Moosa and Others NNO v Hassam and Others NNO 2010 (2) SA 410 (KZP) paragraphs 20 and 21: "It is therefore clear that a party who bases its cause of action upon a written agreement should obtain a true copy of the agreement before advancing its claim. However, this is not to say that a failure to annex a written agreement relied upon may never be condoned in terms of rule 27(3). Good cause would have to be shown why the party concerned is unable, at that stage, to annex a copy of the written agreement relied upon."[1]

Does the particulars of claim in question contain the necessary facta probanda for the plaintiff to prove his case?

[13] It was argued on behalf of the respondent that an analyses of the particulars of claim reveals that the following material facts

relating to a claim based on breach of contract, are contained therein:

(i) The parties are correctly cited;

(ii) It is evident that the court has jurisdiction;

(iii) The plaintiff applied to be appointed as a bulk service provider;

(iv) The defendant accepted the plaintiffs applications;

(v) The written portion of the agreement (the applications) is in the possession of the defendant;

(vi) Both parties were appropriately represented;

(vii) The defendant installed the bulk meters;

(viii) The material terms of the agreement between the parties are set out in the particulars of claim;

(ix) The plaintiff complied with its obligations;

(x) The defendant breached the agreement (details as to the breach are incorporated in the particulars of claim and by reference - in this regard see Fourlamel (Pty) Ltd v Maddison 1977 (1) SA 333 (A)334B).

[14] These aspects are indeed dealt with in the particulars of claim.

[15] It was argued on behalf of the respondent that it seems as if the excipient expects of the respondent to incorporate certain facta probantia in the particulars of claim as well.

[16] There is however one aspect pertaining to the drafting of the particulars of claim that is somewhat disconcerting, and the excipient draws attention to this. Paragraph 3.2 of the particulars of claim refers to a ' contractual relationship' that arose between the parties, and paragraphs 3.4 and 4 refer respectively to 'the written portion of the agreement' and the ' the agreement'. In these three instances the singular noun is used. However, in paragraph 5 the plural is used and here reference is made to 'agreements'. Similarly in paragraph 6.1 reference is made to ' each of the agreements', and paragraph 6.4 refers to "[f]urther detail as to the breaches of the respective agreements".

[17] It is evident from the affidavits filed in the condonation application (referred to below), and stated in the particulars of claim, that a contractual relationship existed between the parties. It is however not clear to the uninformed objective reader who has regard only to the particulars of claim, whether this contractual relationship incorporates all the agreements concluded between the excipient and respondent, or whether each application that was accepted constitutes an individual and independent agreement. It was argued on behalf of the respondent that the excipient knows very well what this claim is about. It is however, not only the parties who have intimate knowledge of the dealings between them, but also the trier of fact, who must be able to ascertain with clarity and without reference to other documentation what the exact nature and extent of the dispute between the parties are. In addition multiple contracts may exist between the same parties and only some of them may be breached.

[18] The question is however, whether the confusion that might arise due to the abovementioned discrepancy, goes to the root of the particulars

of claim and causes the particulars of claim to be vague and embarrassing to the extent that the defendant does not know the claim

he has to meet.

[19] It is trite that the particulars of claim must be read as a whole, and I am of the view that the saving grace of these particulars of claim is the content of paragraphs 3, 7, 9, and 10 thereof. From these paragraphs it is evident that the claim relates to the providing of bulk meter services to four specific buildings, namely Manitoba, Interlaken, Philadelphia and Pollux.

[20] I accordingly find that the particulars of claim adhere to the requirement set out in Rule 18(4) of the Uniform Rules of Court. The particulars of claim are not vague and embarrassing and contain the necessary averments to sustain an action.

The respondent's condonation application

[21] It has already been stated that the respondent is not in the position to provide the written contract between the parties since the applications, that constitute the written portion of the contract, is in the possession of the defendant/excipient.

[22] There is no opposing affidavit from the excipient in relation to the condonation application filed in the court file. The excipient responded to the condonation application by filing a Rule 30 notice, but there is no indication on the court file that the excipient (respondent to the condonation application and defendant in the main action) took the matter further by bringing an application to set aside the alleged irregular step.

[23] Both the exception and the condonation application have been set down for hearing on 4 June 2018. From the court file it seems as if the applications have been removed by notice. The notice of set down for hearing on 6 August 2018 does not indicate whether it pertained to the exception application, the condonation application or both. It is merely stated that "the above matter has been set down".

[24] Both parties referred to the condonation application in oral argument, although the emphasis of the arguments was on the exception. In light of the fact that it is stated in the particulars of claim that the written portion of the agreement consisting of the applications submitted by the respondent is in the possession of the excipient, I am of the view that good cause exists to condone the non-compliance, due to impossibility, with Rule 18(6).

ORDER

In light of the aforesaid it is ordered that:

[1] Non-compliance with Rule 18(6) of the Uniform Rules of Court is condoned;

[2] The exception is dismissed with costs.

EV AN DER SCHYFF

ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA

Heard on:

6 August 2018

For the Plaintiff/Applicant: ADV S T SESHOKA

Instructed by:

NOKO RAMABOYA ATTORNEYS

For the Defendant/Respondent: SW DAVIES

Instructed by:

JW WESSELS & PARTNERS INC

Date of Judgment:

23 AUGUST 2018

[1] It is unfortunate that the applicant, in its heads of argument, referred the court to the judgment in Moosa above but refrained from including reference to paragraph 20 and 21.