Group 10 Housing (Western Transvaal) Edms Bpk v Domann Group Properties (Pty) Ltd and Another (260/04) [2004] ZANWHC 38 (2 December 2004)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO.:260/04

In the matter between:

GROUP 10 HOUSING (WESTERN

TRANSVAAL) (EDMS) BPK : PLAINTIFF

AND

DOMANN GROUP PROPERTIES

(PTY) LTD : 1ST DEFENDANT

ROBERT THOMAS

KITCHENER DOMANN : 2ND DEFENDANT

MMABATHO

MOKGOATLHENG AJ

JUDGMENT

MOKGOATLHENG AJ:

Introduction

[1] The first and second Defendants except to the Plaintiff’s declaration on the basis that it is vague and embarrassing and/or lacks averments necessary to sustain a cause of action. The grounds upon which the exception is founded are that although the Plaintiff claims relief against the Defendants on the basis of joint and several liability in terms of a written contract, the Plaintiff does not allege in respect of the first Defendant that:-

(a) the first Defendant was a party to the written contract;

(b) the first Defendant signed the written contract represented by a duly authorised representative this being the second Defendant.

[2] In the premises the Defendants contend that:-

(a) There is no contractual nexus and privity of contract between the Plaintiff and the first Defendant, the reason being that the first Defendant did not duly authorise the second Defendant to duly represent it and to duly sign the agreement on it’s behalf.

(b) The second Defendant and the Plaintiff are the only parties to the contract.

(c) The contract is signed by the second Defendant only and in his capacity as “skuldenaar”.

(d) The fact that the second Defendant is described as acting both in his personal capacity and as a director of the first Defendant does not make the first Defendant a party to the contract.

(e) There is no cause of action for liability in the contract in respect of the first Defendant in favour of the Plaintiff.

[3] The Defendants submits that:

(a) the Plaintiff’s failure to establish a cause of action and or lack of averments necessary to sustain an action is embarrassing to the Defendants, and in consequence, the Defendants do not know what case to meet and therefore are unable to plead thereto.

The Law

[4] The court looks at the pleading excepted to as it stands. The object of an exception is to dispose of the case or a portion thereof in an expeditious manner. An exception founded on the contention that the summons discloses no cause of action, is designed to obtain a decision on a point of law which will dispose of the case in whole or in part.

The test in deciding an exception founded on vagueness and embarrassment arising out of lack of particularity is whether:

(1) The impugned pleading’s lack of particularity amounts to vagueness which is embarrassing and prejudicial to the excipient.

(See Superior Court Practice by H J Erasmus’s commentary under Rule 23 at pages B1-151-154).

[5] Before an excipient can succeed he must raise a substantive question of law which may have the effect of settling the dispute between the parties in part or in whole.

Cause of Action

[6] In the evaluation of this exception three preliminary observations are apposite.

Firstly in Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627 at 630 Benjamin J stated with regard to the general approach to exceptions that:

“Save in the instance where an exception is taken for the purpose of raising a substantive question of law which may have the effect of settling the dispute between the parties, an excepient should make out a very clear, strong case before he should be allowed to succeed”.

[7] Secondly an exception is generally not the appropriate procedure to settle questions relating to the interpretation of a contract (See Sun Packaging (Pty) Ltd v Vreulink [1996] ZASCA 73; 1996 (4) SA 176 (A) at 186J).

The reason is that if the interpretation contented for by the Respondent is a reasonably possible interpretation, the exception cannot be upheld. The same applies regarding the pleading of implied terms of the contract, the test on exception is whether the trial court could (not should) reasonably imply the terms alleged.

[8] Thirdly our courts have held that a commercial document executed by the parties with a clear intention that it should be a commercial operation should not lightly be held to be ineffective (See Burroughs Machines Ltd v Chenile Corporation of SA (Pty) Ltd 1964 (1) DA 669(W) at 670 G-H; Murray and Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991(1) SA 508 (A) at 514 E-F).

[9] The approach adopted to an exception that a pleading is vague and embarrassing was enunciated as follows:

“It has been stated, clearly and often, that an exception that a pleading is vague or embarrassing ought not to be allowed unless the excipient would be seriously prejudiced if the offending allegations were not expunged”.

(See Levitan Newhaven Holiday Enterprises CC 1991 (2) SA 297 (CPD) at 298A).

[10] The fact that the agreement was generally unelegant, clumsy in expression, and confused in thought and language, is not per se a reason for holding that the agreement is ineffective

[11] Prejudice to a litigant faced with an embarrassing pleading must ultimately be in the inability to properly prepare to meet his opponent’s case.

[12] The excipient has a duty to persuade the court that upon every possible interpretation which the particulars of claim can reasonably bear, no cause of action is disclosed. Theunissen en Andere v Transvaal Lewende Hawe Koop Bpk 1988 (2) SA 493 (A) at 500D; Lewis v Oneatate (Pty) Ltd and Another 1992 (4) SA (A) at 817F.

The approach is summarised by the writer Joubert as follows:

“The court should not look at a pleading with a magnifying glass of too high power. It is the duty of the court when an exception is taken to a pleading first to see if there is a point of law to be decided which will dispose of the case in whole or in part. If there is not it must see if there is an embarrassment which is real as a result of the fault in the pleading to which the exception is taken. Unless the excepient can satisfy the court that there is a point of law or such real embarrassment the exception should be dismissed.”

(See Joubert (ed) Law of South Africa vol 3 part 1 at par. 186).

To this must be added the consideration that the validity of an agreement and the question whether a contract may be void for vagueness do not readily fall to be decided by way of an exception (See Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A); Burroughs Machines Ltd v Chenille Corporation of SA (Pty) Ltd 1964 (1) 669 (W) at 676 F-H; Murray & Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (SA) 508 (A) at 514 F).

[13] It is trite law that in order to disclose a cause of action the Plaintiff’s particulars of claim must set out:

“every fact which it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact but every fact which is necessary to be proved.”

(See Mckenzie v Farmers Co-operative Meat Industries Ltd 1922 AD at 23).

This assertion relates only to material facts and in considering an exception distinction must be drawn between the facts which must be proved in order to disclose a cause of action and the evidence which is necessary to prove the facts.

Plaintiff’s Case

[14] The Plaintiff’s claim is based on a signed document with the Heading “Ooreenkoms om skuld in paaiemente te Betaal”. The parties to this document are:

Group 10 Housing (Western Transvaal) (EDMS) BPK

Domann Group Properties (Pty) Ltd

Robert Thomas Kitchener Domann

The singular word “skuldenaar” is used for both the contracting parties who are in essence debtors with joint and several liability.

The word “skuldenaar” as utilised in the document refers to both Domann Group Properties Pty Ltd and Robert Domann. Paragraph I of the agreement states:

“Die skuldenaar kom ooreen met die skuldeiser dat die skuldenaar die volgende bedrae aan die skuldenaar verskuldig is”.

The Plaintiff submits therefore that throughout the contract the word “skuldenaar” is used with reference to both the first and second Defendants.

Having regard to the utilisation of the word “skuldenaar” it is submitted that it is clear that the debtors are the first and second Defendants in their capacity as described in the first page of the contract.

[15] It is clear that there is a joint debtorship in that the second Defendant signed the agreement on behalf of the first Defendant in his representative capacity as director of the first Defendant and also signed the agreement in his personal capacity.

The fact that the second Defendant signed only once does not detract from the fact that the second Defendant contracted with the Plaintiff in his personal capacity as well as in his capacity as director of the first Defendant.

Evaluation of Evidence

[16] The Defendant’s contention is that the Plaintiff fails to allege that the first Defendant was a party to the written contract, and that the first Defendant signed the written agreement represented by a duly authorised representative. This submission flows from the Defendants contention that the Plaintiff alleges that on 17 April 2001, at Rustenburg, the second Defendant in his personal capacity and also in his capacity as Director of the first Defendant signed a written agreement to make payment of a debt by way of instalments.

On the first page of the contract the heading states as follows:

“OOREENKOMS OM SKULD IN PAAIMENTE TE BETAAL

AANGEGAAN DEUR EN TUSSEN

GROUP 10 HOUSING (WESTERN TRANSVAAL) (EIENDOMS) BEPERK

(Hierna genoem “die skuldeiser)

en

ROBERT THOMAS KITCHENER DOMANN

In my hoedanigheid as direkteur van DOMANN GROUP PROPERTIES (EIENDOMS) BEPERK Registrasie nommer; 1996/005295/07

En

ROBERT THOMAS KITCHENER DOMANN

Identiteitsnommer; 340104 6026 082

In my persoonlike hoedanigheid

(hierna genoem “die Skuldenaar”)”.

[17] In my view Robert Thomas Kitchener Domann acts firstly, in his capacity as the director of Domann Group Properties (Pty) Ltd signifying in my view that he is in effect acting in his capacity as director acting on behalf of and representing Domann Group Properties (Pty) Ltd which is the contracting entity in the contract with Group 10 Housing (Western Transvaal) Edms BPK. This conclusion is attested to by the words “ooreenkoms aangegaan deur en tussen Group 10 Housing (Western Transvaal) Edms BPK en Robert Kitchener Domann in my hoedanigheid as direkteur van Domann Group Properties (Pty) Ltd”.

Secondly, Robert Thomas Kitchener Domann acts in his personal capacity to enter into the contract with Group 10 Housing (Western Transvaal) (EDMS) BPK together with Domann Group Properties (Pty) Ltd.

[18] Ex facie the first page, the contract shows that two distinct entities are contracting jointly with Group 10 Properties (Pty) Ltd. It is further significant that Robert Kitchener Domann is cited as the second entity to the contract, the first entity being Domann Group Properties (Pty) Ltd. If it was only Robert Kitchener Domann who was solely contracting with Group 10 Properties (Pty) Ltd, he would have been mentioned and cited alone.

[19] There are several inferences one may draw from these facts. Further on page one of the contract it is stated that:-

“1.1 R130 000(EENHONDERD EN DERTIGDUISEND RAND) synde die kapitaal en rente van die skuld voortspruitend uit die verkoop van die ondergenoemde eiendom aan Domann Group Properties (Eiendoms) Beperk, naamlik:

GEDEELTE 5 van die plaas TULANIE 392, Registrasie Afdeling J.P, Noordwes Provinsie”.

It is significant that these underlined words are highlighted in bold and that the bold lettering occurs only in paragraph 1.1 on page 1. The genesis of the contract originates from the fact that the first Defendant purchased from and was sold immovable property by the Plaintiff in the amount of R130 000.00. This lends credence to the basic literal interpretation of page 1 of the contract that, there are three distinct entities to the contract, namely:

Group 10 Housing (Pty) Ltd the seller of the immovable property;

Domann Group Properties (Western Transvaal) (EDMS) BPK the purchaser of the immovable property represented by Robert Thomas Kitchener Domann as director of Domann Group Properties (Pty) Ltd; and

Robert Thomas Kitchener Domann in his personal capacity”.

It is significant that Group 10 (Western Transvaal) (EDMS) BPK is defined as “die Skuldeiser”, but no definition is appended to Domann Group Properties (Pty) Ltd. The submission by the Plaintiff that Robert Thomas Kitchener Domann is acting in his capacity as director of Domann Group Properties (Pty) Ltd and also in his own personal capacity; and that both are in terms of this agreement referred to as the “Skuldenaar”, further that the word “Skuldenaar” is utilised to refer to both Domann Group Properties (Pty) Ltd and Robert Thomas Kitchener Domann is not without merit.

The submission by the Defendants is that the word “Skuldenaar” is used in the singular and implies that there are only two parties to the agreement; the further submission by the Defendants is that when the second Defendant signed the agreement, he signed in his personal capacity as “skuldenaar” and was binding only himself, to the exclusion of the first Defendant. This submission is with respect not the only reasonable interpretation that can be made from these facts to the exclusion of all other possible interpretations.

[20] From an analysis ex facie the document, is it apparent that this is a simple joint debtorship contract providing that the first and second Defendants undertake to pay the amount of R130 000.00 plus interest to the Plaintiff in respect of property sold by the Plaintiff to the first Defendant.

The joint liability of the Defendants defines the contract as a co-debtor ship contract. The naturalia of any contract which provides for more than one debtor distinguishes it in law in the absence of any specific terms contrary thereto as a joint debtorship contract.

The Plaintiff in his declaration states that on 17 April 2001 at Rustenburg, the second Defendant in his capacity as director of the first Defendant signed a written agreement undertaking to pay a debt in instalments, and attaches a copy of the agreement. The Plaintiff further alleges that it is an express term of the agreement that the Defendants owe the Plaintiff an amount of R130 000.00, that the Defendants were in breach of the contract.

[21] It is not in my view, incumbent upon the Plaintiff to plead that:

(1) the first Defendant signed the written agreement through a duly authorised representative, the second Defendant,

(2) the second Defendant when he was signing the written agreement was signing in his own personal capacity and also in his capacity as the duly authorised representative of the first Defendant.

The declaration therefore contains averments capable of sustaining a cause of action against the Defendants. Whether the Plaintiff can prove the cause of action is another matter to be adjudicated by a trial court. It may be that the second Defendant was not authorised by the first Defendant to sign the agreement on first Defendant’s behalf, if the Defendants wish to raise this point they can raise it by way of a plea.

[22] The Plaintiff states that it entered into a written agreement with the Defendants. The Plaintiff pleads the terms of the agreement and the breach thereof. The Defendants are at liberty to plead their version. The difference between the two versions with regard to the contract will have to be resolved in the trial court.

In the premises the exception is dismissed with costs.

____________________

R D MOKGOATLHENG

ACTING JUDGE OF THE HIGH COURT

DATE OF HEARING : 16 SEPTEMBER 2004

DATE OF JUDGMENT : 02 DECEMBER 2004

COUNSEL FOR THE PLAINTIFF : ADV A A CRUTCHFIELD

COUNSEL FOR THE DEFENDANTS : ADV L L J MAREE (SC)

ATTORNEYS FOR THE PLAINTIFF : VAN ROOYEN TLHAPI & WESSELS

ATTORNEYS FOR THE DEFENDANTS : NIENABER & WISSING

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