MEC: Department of Public Works and Infrastructure, Free State Province v Tuscaloosa 21 (Pty) Ltd (3778/2017) [2018] ZAFSHC 30 (29 March 2018)
The court found that while there are contradictions in the Plaintiff's Particulars of Claim, these contradictions render the calculation of the quantum vague and embarrassing but do not affect the underlying cause of action. The exception was properly taken, but the defects do not justify dismissal of the action....
Source-derived case information.
- Citation
- [2018] ZAFSHC 30
- Parties
- Plaintiff: MEC: Department of Public Works and Infrastructure, Free State Province; Defendant: Tuscaloosa 21 (Pty) Ltd
- Court
- Free State High Court, Bloemfontein
- Jurisdiction
- South Africa
- Case Number
- 3778/2017
- Procedural Posture
- Exception Application / Exception to Particulars of Claim Under Rule 23(1)
- Outcome
- Exception upheld with costs; Plaintiff granted leave to amend Particulars of Claim within 21 days.
- Judges
- P J Loubser
- Legal Topics
- Exception Procedure, Vague and Embarrassing Pleading, Quantum of Claim, Amendment of Pleadings
Source-derived case record
Summary, issues, holding and outcome
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Parties
MEC: Department of Public Works and Infrastructure, Free State Province
Plaintiff
Tuscaloosa 21 (Pty) Ltd
Defendant
Procedural Posture
Exception Application / Exception to Particulars of Claim Under Rule 23(1)
Legal Issues
- 1 Whether the contradictions in the Particulars of Claim render the pleading vague and embarrassing to the extent that it fails to disclose a cause of action.
- 2 Whether the Plaintiff should be granted leave to amend the Particulars of Claim.
Ratio Decidendi
The court found that while there are contradictions in the Plaintiff's Particulars of Claim, these contradictions render the calculation of the quantum vague and embarrassing but do not affect the underlying cause of action. The exception was properly taken, but the defects do not justify dismissal of the action. Instead, the Plaintiff should be granted leave to amend the Particulars of Claim to address the vagueness and embarrassment identified.
Court Disposition
Exception upheld with costs; Plaintiff granted leave to amend Particulars of Claim within 21 days.
Orders
- The exception is upheld with costs.
- The Plaintiff is granted leave to amend the Particulars of Claim within a period of 21 days from date hereof.
Full Case Text
Judgment text and source record
39 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION, BLOEMFONTEIN
Reportable:
YES/NO
Of Interest to other Judges: YES/NO
Circulate to Magistrates: YES/NO
Case No: 3778/2017
In the matter between:
MEC: DEPARTMENT OF PUBLIC WORKS
Plaintiff/Respondent
AND INFRASTRUCTURE,
FREE STATE PROVINCE
and
TUSCALOOSA 21 (PTY) LTD
Defendant/Excipient
JUDGMENT BY: LOUBSER, J
HEARD ON:
23 MARCH 2018
DELIVERED:
29 MARCH 2018
[1] This matter came before me in the form of an exception noted by the Defendant against the Particulars of Claim of the Plaintiff on the basis that they are vague and embarrassing as envisaged by the provisions of Rule of Court 23(1). The exception was heard on an opposed basis.
[2] In the Particulars of Claim, it is alleged that the Defendant had let a building to the Plaintiff in terms of a written agreement for a certain period of time. It is further alleged that, after the eventual expiration of the period of lease, it transpired that the Plaintiff had paid rentals for space in terms of square metres that were much less than the square metres stipulated in the lease agreement. Part of the rentals were therefore paid indebiti, so it is alleged, and the Plaintiff therefore claims the repayment of some R8 million.
[3] Several grounds of exception are set out in the Notice of Exception, which grounds are essentially directed at the vagueness in the computation of periods, parking spaces and payments made by the Plaintiff. Suffice it to say that the Exception turns around contradictions in the quantum of the Plaintiff’s claim.
[4] Mr. Van Rhyn, appearing for the Defendant/Excipient, submitted that the contradictions go to the root of the Plaintiffs cause of action, and that the Exception should therefore be upheld and the action be dismissed with costs, including the costs occasioned by the Exception. Mr. Sibeko, appearing for the Plaintiff, quite correctly, in my view, conceded in argument that there may be contradictions contained in the Particulars of Claim. He denied, however, that the contradictions are such that they touch
upon the cause of action itself, and he submitted that the Plaintiff should be granted an opportunity to remedy its pleading.
[5] In my view, the obvious contradictions in the pleading render the calculation of the quantum of the claim vague and embarrassing, but the cause of action itself is not affected thereby to such an extent that it can be said that it no longer discloses a cause of action. There may be instances where vagueness and embarrassment relating to quantum may go to the root of the cause of action, but that certainly is not the case here.
[6] I therefore find that the exception was properly taken, but that the Plaintiff should be allowed to amend his pleading.
[7] Consequently the following order is made:
1. The exception is upheld with costs.
2. The Plaintiff is granted leave to amend the Particulars of Claim within a period of 21 days from date hereof.
_______________
P J LOUBSER, J
For Defendant/Excipient:
Adv. A.J.R van Rhyn SC
Instructed by: Rosendorff Reitz Berry
Bloemfontein
For Plaintiff/ Respondent:
Adv. L.T Sibeko SC (with him adv. D.R Thompson)
Instructed by: State Attorney