KPMM Roads & Earthworks Projects (Pty) Ltd v Polokwane Local Municipality (2849/2020) [2022] ZALMPPHC 50 (11 August 2022)

KPMM Roads & Earthworks Projects (Pty) Ltd v Polokwane Local Municipality (2849/2020) [2022] ZALMPPHC 50 (11 August 2022)

The court held that the defendant's counter-claims for special damages were vague and embarrassing because they failed to allege that the damages claimed were within the contemplation of the parties at the time the contract was concluded. The facts pleaded in paragraph 27, while relevant, did not constitute a cause of action unless connected to averments that the parties actually contemplated or reasonably foresaw the damages at the time of contracting. The absence of these essential allegations rendered the counter-claims excipiable. The exception to paragraph 27 was dismissed, but the exceptions to counter-claims 2, 3, 4 and 5 were upheld, resulting in the setting aside of the...

Citation
[2022] ZALMPPHC 50
Parties
Plaintiff: KPMM Roads & Earthworks Projects (Pty) Ltd; Defendant: Polokwane Local Municipality
Court
Limpopo High Court, Polokwane
Jurisdiction
South Africa
Judgment Date
11 August 2022
Case Number
2849/2020
Procedural Posture
Civil Procedure / Exception to Counter Claims in Action Proceedings
Outcome
Exceptions to counter-claims 2, 3, 4 and 5 upheld; counter-claims set aside with leave to amend.
Judges
GC Muller
Legal Topics
Special Damages, Remoteness of Damage, Breach of Contract, Pleading Requirements
Civil Procedure Commercial and Corporate Special Damages Remoteness of Damage Breach of Contract Pleading Requirements

Case Brief

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Parties

KPMM Roads & Earthworks Projects (Pty) Ltd

Plaintiff

Polokwane Local Municipality

Defendant

Procedural Posture

Civil Procedure / Exception to Counter Claims in Action Proceedings

Legal Issues

  1. 1 Whether the defendant's counter-claims for special damages are vague and embarrassing due to insufficient averments regarding the contemplation of damages at the time of contract.
  2. 2 Whether the facts pleaded in paragraph 27 of the defendant's plea are sufficient to sustain the causes of action for special damages.
  3. 3 Whether the exceptions to counter-claims 2, 3, 4 and 5 should be upheld.

Ratio Decidendi

The court held that the defendant's counter-claims for special damages were vague and embarrassing because they failed to allege that the damages claimed were within the contemplation of the parties at the time the contract was concluded. The facts pleaded in paragraph 27, while relevant, did not constitute a cause of action unless connected to averments that the parties actually contemplated or reasonably foresaw the damages at the time of contracting. The absence of these essential allegations rendered the counter-claims excipiable. The exception to paragraph 27 was dismissed, but the exceptions to counter-claims 2, 3, 4 and 5 were upheld, resulting in the setting aside of the...

Court Disposition

Exceptions to counter-claims 2, 3, 4 and 5 upheld; counter-claims set aside with leave to amend.

Orders

  • The exception to paragraph 27 is dismissed.
  • The exceptions to counter-claims 2, 3, 4 and 5 succeed with costs.