Macsteel Trading Welkom v Hattingh (2710/2020) [2021] ZAFSHC 173; 2022 (2) SACR 511 (FB) (3 August 2021)
- Citation
- [2021] ZAFSHC 173
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- Free State High Court, Bloemfontein
- Panel
- M Voges
- Case number
- 2710/2020
More details
- Court
- Free State High Court, Bloemfontein
- Panel
- M Voges
- Case number
- 2710/2020
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the plaintiff's particulars of claim sufficiently set out the basis for the claim, namely the sale and delivery of goods to the principal debtor, compliance with contractual obligations, and the failure of the principal debtor to pay the invoiced amounts. The agreement makes clear that each order is a separate transaction and that the purchase price is as set out in the invoices and statements. The absence of a specific description of goods and price in the particulars of claim does not render the contract invalid, as these can be proved by evidence. The exception was therefore not upheld, as the particulars of claim disclose a cause of action.
Court disposition
Exception dismissed with costs.
Orders
- The exception is dismissed with costs.
02
Material facts
Parties
Macsteel Service Centres SA (Pty) Ltd t/a Macsteel Trading Welkom
Plaintiff Counsel: Adv J ElsDaniel Johagem Jacobus Hattingh
Defendant Counsel: Adv M LouwAmounts and remedies
- Claim Amount: ZAR 9,022,054.87
03
Procedural history
Posture
Civil Procedure / Exception to Particulars of Claim
04
Questions and positions
Legal issues
- 01
Whether the plaintiff's particulars of claim disclose the necessary averments to sustain a cause of action for payment under a contract of sale and suretyship.
- 02
Whether the absence of a description of goods and agreed price renders the contract invalid and the claim excipiable.
Party arguments
- Applicant
- The excipient argued that the plaintiff's particulars of claim and the written agreement do not specify what goods were sold or the price agreed upon, and therefore lack essential averments to sustain a cause of action. Without these, there is no valid contract of sale and the claim should be dismissed on exception.
- Respondent
- The plaintiff contended that the agreement refers to each order as a separate transaction and that compliance with obligations by selling and delivering goods is sufficiently pleaded. The price is set out in the invoices and statements, and the description of goods can be proved by evidence. The plaintiff argued that the excipient's objections are not part of the notice of exception and are not essential to the cause of action.
05
Court’s reasoning
Legal principles
- 01
Rule 23(1) of the Uniform Rules
Where a pleading is vague, embarrassing, or lacks averments necessary to sustain an action or defence, an exception may be raised.
- 02
Theunissen v Transvaalse Lewendehawe Koöp Bpk 1988 (2) SA 493 (A) at 500D
The excipient must show that, on every reasonable interpretation of the pleading, no cause of action is disclosed.
- 03
Voget and others v Kleynhans 2003 (2) SA 148 (C) at 151H
For purposes of exception, the court assumes the correctness of factual averments unless they are palpably untrue or improbable.
- 04
First National Bank of Southern Africa Ltd v Perry NO and other 2001 (3) SA 960 (SCA) at 972I
A charitable and benevolent interpretation is applied to pleadings when considering exceptions.
- 05
Mackenzie v Farmer’s Co-operative Meat Industries Ltd 1922 AD 16 at 23
A pleading must set out every material fact necessary to support the right to judgment, not every piece of evidence.
- 06
MacKelvey v Cowan NO 1980 (4) SA 525 (Z) at 626D
If evidence can be led to disclose a cause of action alleged in the pleading, the pleading is not excipiable.
- 07
Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA) at para 7
An exception that a cause of action is not disclosed cannot succeed unless it is shown that the claim is bad in law on the face of the allegations and documents relied upon.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the plaintiff's particulars of claim sufficiently set out the basis for the claim, namely the sale and delivery of goods to the principal debtor, compliance with contractual obligations, and the failure of the principal debtor to pay the invoiced amounts. The agreement makes clear that each order is a separate transaction and that the purchase price is as set out in the invoices and statements. The absence of a specific description of goods and price in the particulars of claim does not render the contract invalid, as these can be proved by evidence. The exception was therefore not upheld, as the particulars of claim disclose a cause of action.
Obiter and limits
- The court noted that the excipient's argument regarding the lack of an undertaking to sell was not part of the notice of exception and, in any event, is not essential to the cause of action.
- It was observed that the nature and description of goods sold can be established through evidence at trial, and need not be pleaded in detail at this stage.
Court disposition
Exception dismissed with costs.
- The exception is dismissed with costs.
Source and reliance status
Free State High Court, Bloemfontein
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
Free State High Court, Bloemfontein
Judgment
IN THE HIGH COURT OF SOUTH AFRICA,
FREE STATE DIVISION, BLOEMFONTEIN
Case No: 2710/2020
In the matter between:
MACSTEEL SERVICE CENTRES SA (PTY) LTD
t/a
MACSTEEL TRADING
WELKOM PLAINTIFF
and
DANIEL
JOHAGEM JACOBUS HATTINGH EXCIPIENT/1stDEFENDANT
CORAM: VOGES, AJ
_____________
HEARD ON: 30 JULY 2021
DELIVERED ON: 03 AUGUST 2021
[1]
INTRODUCTION
In this matter the First Defendant/Excipient filed an exception against the Plaintiff’s particulars of claim on the grounds that it lacks averments that are necessary to sustain a cause of action.
The Plaintiff opposes the exception.
[2]
PARTICULARS
OF CLAIM
The Plaintiff claims payment of the amount of R9 022 054.87 for the sale of goods to the principal debtor, Octa Engineering,
Kroonstad. The Excipient is the First Defendant in the main action, in his capacity as surety of Octa Engineering, Kroonstad.
[3] The plaintiff relies upon an ACCOUNT APPLICATION FORM (POC1) incorporating Terms and Conditions of Sale, Deed of Suretyship and Purchaser’s details and claims that the principal debtor failed to perform its obligations in terms of the written agreement by failing to pay the amounts set out in the Plaintiff’s invoices and/or statements within 30 days.
[4]
EXCEPTION
The basis of the exception is that the written agreement and the Plaintiff’s particulars of claim lacks averments that are necessary to sustain a cause of action in that it does not contain:
1. A description of what is being sold
2. The agreed upon price at which the goods are sold
[5] It was argued on behalf of the Excipient that the agreement (POC1) does not specify that goods will be sold, nor does it set out what goods will be sold and what price was agreed upon. Lacking these essential averments, there was no valid contract of sale on which the Plaintiff could base its claim.
[6] The Plaintiff pointed out that the Excipient’s argument that the agreement does not set out an undertaking to sell does not form part of the notice of exception and that such an averment is, in any case, not essential.
Plaintiff is further of the opinion that the referral in the agreement to “each order which the Purchaser gives to Macsteel and which is accepted by Macsteel is a separate and independent transaction” as well as par 8.1: “The Plaintiff complied with its obligations in terms of the agreement by selling and delivering goods to the Principal Debtor from time to time” is a sufficient basis for the Plaintiff’s claim.
As far as what goods were sold, evidence can be led.
The price agreed upon is the “purchase price set out in Macsteel’s invoices and statements”, as per Part B.2 of the agreement.
[7]
LEGAL
PRINCIPLES
7.1 Rule 23(1) of the Uniform Rules provides as follows:
“Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing
party may, within the period allowed for filing any subsequent pleading deliver an exception thereto and may set it down for hearing …..”
7.2 The excipient has the duty to persuade the court that upon every interpretation which the pleading can reasonably bear, no cause of action or defence is disclosed. See: Theunissen v Transvaalse Lewendehawe Koöp Bpk 1988 (2) SA 493 (A) te 500D
7.3 For the purpose of deciding an exception a court must assume the correctness of the factual averments made in the relevant pleading, unless they are palpably untrue or so improbable that they cannot be accepted. See: Voget and others v Kleynhans 2003 (2) SA 148 (C) at 151H
Theunissen V Transvaalse Lewendehawe Koöp Bpk, supra at 498D
7.4 A charitable test is used on exception in deciding whether a cause of action is established and the pleader is entitled to a benevolent interpretation. See: First National Bank of Southern Africa Ltd v Perry NO and other 2001 (3) SA 960 (SCA) at 972I
7.5 In order to disclose a cause of action, the plaintiff’s pleading must set out “every (material) fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to 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” - Mackenzie v Farmer’s Co-operative Meat Industries Ltd 1922 AD 16 at 23
7.6 In MacKelvey v Cowan NO 1980 (4) SA 525 (Z) at 626D it was stated:
“It is a first principle in dealing with matters of exception that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleadings can disclose a cause of action”.
7.7 In Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA) at par 7 it is stated:
“It is trite law that an exception that a cause of action is not disclosed by a pleading cannot succeed unless it be shown that ex facie the allegations made by a plaintiff and any document upon which his or her cause of action may be based, the claim is (not may be) bad in law”
[8] APPLICATION
OF LAW
The Plaintiff’s Particulars of Claim sets out that the claim is based on the “selling and delivering of goods to the Principal Debtor” (par 8.1), that the Plaintiff complied with its obligations and that the Principal Debtor failed to pay the amounts set out in the Plaintiff’s invoices and/or statement within 30 days (par 9.1).
On reading the Particulars of Claim there can be no doubt about the cause of the action.
[9] It is further clear that the price of the goods will be proved by the invoices and statements of the Plaintiff
[10] The agreement (Account Application Form POC1) makes it clear that it applies to goods ordered from the Plaintiff by and delivered to the principal debtor. The nature of the goods/description thereof can be proved by leading evidence.
[11] The agreement further sets out that the price to be paid will, by agreement, be the price on the invoices of the Plaintiff. I can, therefore, not find that the contract of sale is invalid because no purchase price was agreed upon.
[12]
CONCLUSION
For the reasons set out above the exception cannot be upheld.
[13] ORDER
The exception is dismissed with costs
______
M. VOGES, A J
On behalf of the plaintiff Adv J Els
Instructed by:
EG Cooper Madjiedt Inc
BLOEMFONTEIN
On behalf of the defendant: Adv. M Louw
C\O Du Plooy INC
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