Eastern Produce Cape (Pty) Ltd t/a Linton Park Wines v Glen Faurie International Consultancy (2916/2010) [2011] ZAWCHC 229 (17 May 2011)

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE HIGH COURT, CAPE TOWN)

CASE NO: 2916/2010

In the matter between

EASTERN PRODUCE CAPE (PTY) LTD

t/a LINTON PARK WINES …..........................................................Plaintiff/Respondent

and

GLEN FAURE INTERNATIONAL CONSULTANCY …...............Defendant/Exciplent CC

(Registration Number: 2004/048195/23)

JUDGMENT: 17 MAY 2011

STEYN, J:

BACKGROUND

1. Plaintiff issued summons against defendant for goods sold and delivered by plaintiff to defendant in an amount of R 139 590. 00. After defendant gave notice of intention to defend, plaintiff applied for summary judgment. Defendant filed a notice in terms of Rule 23(1), indicating its intention to except to plaintiff's simple summons on the ground that it was vague and embarrassing.

2. An order was subsequently granted by agreement between the parties that summary judgment be refused and that defendant be given leave to defend the principal claim. Plaintiff filed its declaration. Defendant filed another notice of exception, claiming that plaintiffs simple summons instituting action, as amplified by its declaration, was vague and embarrassing. Plaintiff filed an amended simple summons. Defendant filed another notice in terms of Rule 23(1}, giving notice that it intended to except to the plaintiffs amended summons and declaration on the ground that these documents were vague and embarrassing. The plaintiff filed a further amended summons and an amended declaration dated 4 August 2010.

THIS EXCEPTION

3. This matter concerns the "Notice to Cure in terms of Rule 23(1)' dated 24 August 2010. noting defendant's intention to except to plaintiffs amended declaration dated 4 August 2010 on the ground that it is vague and embarrassing. It was pleaded that the grounds of embarrassment arose from the following:

3.1. A material contradiction between plaintiffs declaration, in terms of which the cause of action is based on a written agency or distribution agreement, while the simple summons referred to goods sold and delivered' in terms of an oral agreement;

3.2. Conflict existing between the written contract of distribution or agency attached to the declaration and the verbal sale agreement

alleged in the summons, in that the written agreement allegedly represents the sole agreement' between the parties, negating the existence of the verbal agreement;

3.3. The failure of the declaration to establish any link between the written agreement, the invoice referred to in clause 6 of the declaration and the amount claimed in terms thereof.

4. A fourth ground was unfounded and abandoned at the hearing of the matter.

5. Defendant submitted that plaintiff accordingly failed to properly inform the defendant what claim it is facing or the basis thereof and that defendant was prejudiced by the embarrassment to the extent that it is unable to respond to plaintiffs conflicting and vague allegations and therefore unable to plead.

6. The notice of exception did not contain a prayer for relief. At the hearing of the matter it was argued on behalf of the defendant that the court should strike out the plaintiff's declaration with costs, whilst plaintiff should be given leave to deliver an amended declaration within 14 days of judgment

7. Plaintiff opposed the exception and submitted that its declaration was neither vague nor embarrassing and that the declaration does not contain the contradictions as alleged by plaintiff.

THE SIMPLE SUMMONS

8. In plaintiff's further amended simple summons dated 4 August 2010.the plaintiff claims as follows:

1. Plaintiff sold and delivered goods to defendant in terms of an oral agreement of sale, the payment terms of which were contained in a written agreement (see annexure 'A') in terms of which a balance sum of R139 590 during July 2009 amount is now due and owing.

2 Despite demand defendant refuses or fails to pay the said amount to plaintiff."

9. Paragraph 3 of plaintiffs amended declaration reads as follows:

"3. On or about 18 June 2009 and at Cape Town, the plaintiff and the defendant entered into a written agreement ("the agreement1), a copy of which is annexed hereto marked 'EP1').

10. It was noted in the declaration that the express terms of the written agreement were that the defendant was appointed by the plaintiff as its exclusive distributor with the right to sell plaintiffs wine in all parts of Angola The payment terms of the distribution agreement were stipulated and appeared from clause 4.1 of the agreement, namelypayment by the defendant to the plaintiff of 55% upfront of the total amount of the invoice and the remaining 45%, 90 days from date of bill of lading

11. Paragraphs 6, 7 an 8 of the amended declaration read as follows:

6. On or about July 2009, the parties entered into an oral agreement of sale in terms of which the plaintiff ordered 13 200 bottles of wine and defendant sold the wine to plaintiff. {It was not disputed by defendant's representative that the paragraph should have read that defendant ordered and plaintiff sold the wine to defendant.)

7. On 3 July 2009 plaintiff issued an invoice to defendant for the sum of R310 200, 00 in respect of 13 200 bottles of wine. A copy of the invoice is annexed marked *EP2

8. Pursuant to the agreement, defendant paid the amount of R170 610. 00 into defendant's bank account on or about 29 June 2009, being 55% of the total amount of the invoice." (Once again it was not disputed that there was a typing error and that it was in fact alleged that defendant paid the amount into plaintiff's bank account.)

12. Plaintiff further alleged that in due course defendant was in breach of its obligation under the agreement to pay the 45% balance amount of the invoice. Plaintiff alleged that defendant undertook to pay the outstanding balance in full by 7 December 2009 but failed to do so. subsequent to which plaintiff demanded payment of the overdue balance amount of R139 590, 00 on 20 January 2010. {A simple mathematical calculation confirms how the amount of R 139 590, 00 was calculated and arrived at)

LEGAL PRINCIPLES

13. An exception is a legal objection to a pleading, complaining of a defect inherent in the pleading, while assuming that all the allegations in the pleading are true and correct Exceptions serve as a means of objecting to pleadings which are not sufficiently detailed or otherwise lacks lucidity affecting the ability of the other party to plead thereto. It follows that when an exception is taken the court must look at the pleading excepted to as it stands.

14. The object of excepting to a pleading or part of a pleading is to obtain a substantive order setting the pleading aside, either in whole or in part and not to obtain a mere expression of opinion from the court on the legal point raised by the exception

15. An exception is a valuable part of the system of procedure. Its principal use is to raise and obtain a speedy, economical decision on questions of law which are apparent on the face of the pleadings and to avoid the leading of unnecessary evidence. An over-technical approach should be avoided as it destroys the usefulness of the exception procedure, which is to weed out cases without legal merit The court should therefore not look too critically at a pleading. If evidence can be lead which can disclose a cause of action or defence, that pleading is not excipiable. A pleading is only excipiable if no possible evidence led on the pleadings can disclose a cause of action or defence.

See South African National Parks v Ras 2002 (2) SA) 537 (C), 541

16. An excipient should generally make out a very clear case in order to succeed. Unless the excipient can satisfy the court that there is a real point of law or a real embarrassment, the exception should be dismissed.

See Francis v Sharp and Others. 2004(3) SA 230 (C) and

Colonial Industries Ltd v Provincial Insurance CO Ltd, 1920 CPD 627.

17. In the Sharp matter above the court also reaffirmed the principle that a commercial document executed by the parties with a clear intention that it should have commercial operation should not lightly be held to be ineffective

18. Whether a pleading is vague and embarrassing is a question of degree. Where the wording of the pleading excepted to is ungrammatical or ambiguous, the uncertainty attaching to the pleader's intention cannot avail the excipient, unless he shows that on any construction of the ambiguous claim it is excipiable.

19. If a pleading is vague and embarrassing the other party has a choice of remedies, including exception procedure, but an exception may only be taken when the vagueness and embarrassment strike at the root of the cause of action pleaded, i.e., if the other party will be seriously prejudiced if the allegations remain. The onus to show a pleading is excipiable on any ground, rests on the excipient. 20. The test applicable in deciding exceptions based on vagueness and embarrassment arising out of lack of particularity has been

effectively summed up by the authors of Erasmus, Superior Court Practise, B1-154 and 155. Inter alia : 20.1. The court is obliged to consider whether the pleading does lack particularity to an extent amounting to vagueness. The reader must be unable to distil from the statement a clear single meaning: 20.2. If there is vagueness in this sense, the court is obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him/her by the vagueness complained of; 20.3. 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 or she is compelled to plead to the pleading in the form to which there is objection to. Prejudice to the excipient is the ultimate test; 20.4. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice 21. The notice of exception must set out the cause of complaint clearly. 22. An exception must contain a prayer for relief; otherwise it is irregular and liable to be struck out The court does however have the power to order an amendment to make good the defect See Harms. Civil Procedure in the Supreme Court. Star binder, B 168 and cases cited there 23. It has been held that an excipient is obliged to confine his complaint to the stated grounds of his exception. He will not be permitted at the hearing of the exception to rely on different grounds or to raise a different exception. See Alphina investments Ltd and Another v Blacher 2008 (5) SA 479 (C). p 483 and 488 and Erasmus, supra at B1 152 A. 24. The dismissal of the exception will not finally dispose of the issue raised by the exception, is not appealable and the issue may be reargued at the trial. GROUNDS OF APPEAL ANALYSED 25. Defendant's counsel seemed oblivious of the fact that defendant was limited to the grounds of exception raised in its Notice of Exception. In the heads of argument several new/additional grounds were raised, while one of the initial grounds was not argued. I will deal with the grounds raised in the Notice and in the heads of argument; 25.1. I am not persuaded that there is a material contradiction between the plaintiffs summons and its declaration in the sense that it appears from the declaration that the cause of action is based on a written agency or distribution agreement and from the summons that "goods sold and delivered' related to an oral agreement. The further amended summons clearly refers to an oral agreement with the payment terms contained in a written agreement; 25.2. The aspect of conflict existing between the written contract and the verbal sale agreement in that the written agreement allegedly represents the sole agreement' between the parties, negating the existence of the verbal agreement, was not raised in defendant's heads of argument. This argument is without merit. The written agreement clearly only relates to the terms of payment to defendant in respect of the distribution of plaintiffs wine; 25.3. insofar as defendant contends that there is no nexus pleaded by plaintiff between the oral and written agreements, this argument is without merit. The link is quite clearly discernable. The arguments of the defendant at the hearing of the matter that plaintiff pleads the enforcement of two unrelated agreements, and that clause 4.1 of the agreement and the declaration itself is silent as to the subject matter of the payment by defendant to plaintiff were not grounds raised in the Notice of Exception and as such cannot be raised in argument. In any event the arguments are without merit. The relationship between the agreements and the subject matter of the payment is abundantly clear; 25.4. Defendant argued at the hearing that plaintiff failed to plead the material terms on which the oral agreement was concluded. This aspect was not raised in the Notice of Exception and it is accordingly impermissible to rely on this aspect now; FINDING 26. Upon a consideration of the contents of the pleadings filed by plaintiff, that defendant excepted to, and the applicable legal principles, I am not persuaded that defendant's claims in its Notice of Exception relating to the causes of its alleged embarrassment are well founded. It may be that upon close scrutiny the simple summons and declaration are drafted in a somewhat clumsy, ungrammatical fashion, but in my opinion not to such an extent that it can be argued with confidence and conviction that defendant will be seriously, if at all, prejudiced if the offending allegations were not expunged. I do not believe that defendant has shown that it cannot plead or that it will be prejudiced if it were to plead to the declaration as it stands. The defendant, who did not include any prayer for relief in its Notice of Exception, which in itself is an irregularity, has not persuaded the court that it is entitled to any relief 27. In the circumstances the defendant's application in terms of Rule 23(1) is refused with costs. E STEYN

19. If a pleading is vague and embarrassing the other party has a choice of remedies, including exception procedure, but an exception may only be taken when the vagueness and embarrassment strike at the root of the cause of action pleaded, i.e., if the other party will be seriously prejudiced if the allegations remain. The onus to show a pleading is excipiable on any ground, rests on the excipient.

20. The test applicable in deciding exceptions based on vagueness and embarrassment arising out of lack of particularity has been

effectively summed up by the authors of Erasmus, Superior Court Practise, B1-154 and 155. Inter alia :

20.1. The court is obliged to consider whether the pleading does lack particularity to an extent amounting to vagueness. The reader must be unable to distil from the statement a clear single meaning:

20.2. If there is vagueness in this sense, the court is obliged to undertake a quantitative analysis of such embarrassment as the excipient can show is caused to him/her by the vagueness complained of;

20.3. 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 or she is compelled to plead to the pleading in the form to which there is objection to. Prejudice to the excipient is the ultimate test;

20.4. The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice

21. The notice of exception must set out the cause of complaint clearly.

22. An exception must contain a prayer for relief; otherwise it is irregular and liable to be struck out The court does however have the power to order an amendment to make good the defect

See Harms. Civil Procedure in the Supreme Court. Star binder, B 168 and cases cited there

23. It has been held that an excipient is obliged to confine his complaint to the stated grounds of his exception. He will not be permitted at the hearing of the exception to rely on different grounds or to raise a different exception.

See Alphina investments Ltd and Another v Blacher 2008 (5) SA 479 (C). p 483 and 488 and Erasmus, supra at B1 152 A.

24. The dismissal of the exception will not finally dispose of the issue raised by the exception, is not appealable and the issue may be reargued at the trial.

GROUNDS OF APPEAL ANALYSED

25. Defendant's counsel seemed oblivious of the fact that defendant was limited to the grounds of exception raised in its Notice of Exception. In the heads of argument several new/additional grounds were raised, while one of the initial grounds was not argued. I will deal with the grounds raised in the Notice and in the heads of argument;

25.1. I am not persuaded that there is a material contradiction between the plaintiffs summons and its declaration in the sense that it appears from the declaration that the cause of action is based on a written agency or distribution agreement and from the summons that "goods sold and delivered' related to an oral agreement. The further amended summons clearly refers to an oral agreement with the payment terms contained in a written agreement;

25.2. The aspect of conflict existing between the written contract and the verbal sale agreement in that the written agreement allegedly represents the sole agreement' between the parties, negating the existence of the verbal agreement, was not raised in defendant's heads of argument. This argument is without merit. The written agreement clearly only relates to the terms of payment to defendant in respect of the distribution of plaintiffs wine;

25.3. insofar as defendant contends that there is no nexus pleaded by plaintiff between the oral and written agreements, this argument is without merit. The link is quite clearly discernable. The arguments of the defendant at the hearing of the matter that plaintiff pleads the enforcement of two unrelated agreements, and that clause 4.1 of the agreement and the declaration itself is silent as to the subject matter of the payment by defendant to plaintiff were not grounds raised in the Notice of Exception and as such cannot be raised in argument. In any event the arguments are without merit. The relationship between the agreements and the subject matter of the payment is abundantly clear;

25.4. Defendant argued at the hearing that plaintiff failed to plead the material terms on which the oral agreement was concluded. This aspect was not raised in the Notice of Exception and it is accordingly impermissible to rely on this aspect now;

FINDING

26. Upon a consideration of the contents of the pleadings filed by plaintiff, that defendant excepted to, and the applicable legal principles, I am not persuaded that defendant's claims in its Notice of Exception relating to the causes of its alleged embarrassment are well founded. It may be that upon close scrutiny the simple summons and declaration are drafted in a somewhat clumsy, ungrammatical fashion, but in my opinion not to such an extent that it can be argued with confidence and conviction that defendant will be seriously, if at all, prejudiced if the offending allegations were not expunged. I do not believe that defendant has shown that it cannot plead or that it will be prejudiced if it were to plead to the declaration as it stands. The defendant, who did not include any prayer for relief in its Notice of Exception, which in itself is an irregularity, has not persuaded the court that it is entitled to any relief

27. In the circumstances the defendant's application in terms of Rule 23(1) is refused with costs.

E STEYN