MEC of the Department of Education, North-West Province v Mount Amanzi Share Block Ltd (2943/2008) [2009] ZANWHC 25 (25 September 2009)

IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO: 2943/2008

In the matter between:

THE MEMBER OF THE EXECUTIVE COUNCIL Applicant/Defendant

OF THE DEPARTMENT OF EDUCATION,

NORTH WEST PROVINCE

and

MOUNT AMANZI SHARE BLOCK LIMITED Respondent/Plaintiff

CIVIL MATTER

DATE OF HEARING : 17 SEPTEMBER 2009

DATE OF JUDGMENT : 25 SEPTEMBER 2009

COUNSEL FOR THE APPLICANT : ADV GUTTA

COUNSEL FOR THE RESPONDENT : ADV MAREE

JUDGMENT

HENDRICKS J

[A] Introduction:-

[1] On the 03rd December 2008, Plaintiff (Respondent) issued summons against the Defendant (Applicant) arising out of a written agreement wherein the Plaintiff alleged that the Defendant booked certain conference facilities and was to remunerate the Plaintiff for those facilities.

Plaintiff alleged that the Defendant breached the agreement by failing to give written notification of cancellation at least 14

days, alternatively, at least 30 days before the commencement dates of the conferences. Plaintiff alleged, that it is entitled to 100% of the fee payable by the Defendant for the booking made in the amount of R483 000.00 for the first booking (from 02 to 06 June 2008) and an amount of R480 000.00 for the second booking made (from 16 to 20 June 2008).

[2] On the 9th June 2009, the Defendant filed a notice of exception to Plaintiff’s particulars of claim. The Plaintiff failed to file a reply to the notice of exception, or to amend the particulars of claim and on the 11th June 2009, the Defendant filed a notice of exception and an application for condonation for the late filing of the notice of exception.

[B] Condonation:-

[3] An application for condonation for the late filing of the exception was made at the hearing by the Defendant. This application was not opposed by the Plaintiff. Because a reasonable and acceptable explanation was advanced as to why the application for exception was not timeously made, condonation was granted and the Defendant was allowed to argue the merits of the application for exception.

[C] Grounds of Exception:-

[4] Seven grounds of exception were raised by the Defendant to substantiate the contention that the averments of the Plaintiff contained in the particulars of claim attached to the summons are vague and embarrassing and does not disclose a cause of action. I will deal with these grounds hereunder.

[i] First Ground of Exception:-

[5] It is alleged by the Defendant that the Plaintiff, who relies on a written agreement attached as Annexure “A” concluded between the Plaintiff and the Defendant, failed to attach a complete agreement and only attached the first and the last page of the agreement signed by the Plaintiff on the 22nd May 2008 with the arrival date of delegates to the conference being the 2nd June 2008. It is furthermore contended that the Plaintiff also attached the first page of another agreement with the arrival date of delegates to the conference being the 16th June 2008. Also attached are the rates for the period 9th – 13th June 2008. The Defendant submitted that ex facie the documents attached, it appears that there is more than one agreement for different conference dates. Accordingly Annexure “A” attached to the particulars of claim are incomplete and inconsistent and are in the premises vague and embarrassing, alternatively disclose no cause of action.

[6] It is clear from Annexure “A” to the particulars of claim that there is one agreement with different conference dates and not different agreements. A party who rely on a contract must attach the part relied on in the pleading. It is not a requirement to attach the whole agreement.

See:- Rule 18(6) of the Uniform Rules.

[ii] Second Ground of Exception:-

[7] The Defendant contends that the agreement relied upon only states “agreement between Mount Amanzi Share Block Limited” and there is no name filled in for “the client”. The Defendant, being the Department of Education, does not appear as “the client” on the first page of the agreement. No official from the Defendant has signed the agreement. Accordingly, it is contended by the Defendant that the Plaintiff fails to disclose a cause of action as there is no written agreement signed by or on behalf of the Defendant.

[8] It is clear from Annexure “A” that the parties did not sign the agreement at the same time on 22 May 2008 therefore there is one page in Annexure “A” confirming that the Plaintiff signed the agreement and one page in Annexure “A” confirming that the Defendant signed the agreement. It cannot be said that the Applicant did not sign the written agreement and that there is no cause of action because the Defendant did not sign the written agreement. The pleadings must be read as a whole. Under the heading “Company details” next to “Authorized signatures” appears the names “L. Selete” and “M.V. Leketi”, next to which two different signatures (allegedly that of the aforementioned two persons) appears.

[iii] Third Ground of Exception:-

[9] In paragraph 13.1 of the heads of argument on behalf of the Defendant, it is stated that the Plaintiff alleges that the agreement was concluded on the 22nd of June 2006 at or near Hartebeespoort. On the last page of the agreement, the month in which the agreement was signed is not stated. Furthermore on the last page of the agreement, it appears that the agreement was signed at Mmabatho and not Hartebeespoort as alleged. Accordingly in the premises, the particulars of claim are vague and embarrassing.

[10] It is clear from one page of Annexure “A” that the agreement was concluded on the 22nd May 2008. It was not alleged in the particulars of claim that the agreement was concluded on 22 June 2006 as stated by the Applicant.

It is alleged that the agreement was concluded at or near Hartebeespoort and not at Hartebeespoort. Although the referral to Hartebeespoort and not to Mmabatho is an averment in the Plaintiff’s particulars of claim that may be wrong (which I do not find to be the case) it does not strike to the root of the cause of action as pleaded.

[11] It is clear from the aforementioned three grounds of exception that it relates to the agreement (Annexure “A”) and not to the particulars of claim attached to the summons as such. The averments contained in the particulars of claim attached to the summons are in my view clear and unambiguous enough in order for the Defendant to plead thereto.

[iv] Fourth Ground of Exception:-

[12] The Defendant submitted that the Plaintiff relies on a written agreement but refers to a material, express alternatively implied further alternatively tacit term of the agreement. The Plaintiff, so it is submitted, fails to state what are the express terms in the written agreement attached as Annexure “A” and what are the implied alternatively tacit terms of the agreement. As the Plaintiff relies on a written agreement, the Plaintiff cannot plead in the alternative that the terms were implied further alternatively tacit without pleading the material facts to support the allegations. Accordingly in the premises, the particulars of claim are vague and embarrassing alternatively disclose no cause of action.

[13] A written agreement can have implied terms. A party may plead a tacit contract as an alternative to an express contract. It was specifically pleaded that the terms in the agreement were expressed terms. Only in the alternative was the terms stated as implied and/or tacit. The terms as stated in the particulars of claim are the terms which the Plaintiff and Defendant relies on and a dispute to the nature of the terms cannot be said to be vague and/or embarrassing.

[v] Fifth Ground of Exception:-

[14] The Defendant furthermore contends that the Plaintiff alleges that, pursuant to the agreement, the necessary bookings for the conferences were made. The Plaintiff however fails to aver when the conferences were booked. The Plaintiff furthermore contradicts the averments made in paragraphs 3 and 4 of the particulars of claim wherein it is alleged that the written agreement was concluded on the 22nd of May 2008 to book the facilities. Accordingly in the premises, the particulars of claim are vague and embarrassing.

[15] Failure to mention the date when the bookings were made is not strictly necessary for the purposes of pleading and the lack of stating the particular date cannot make the pleading vague and/or embarrassing as it forms part of the facta probantia.

[vi] Sixth Ground of Exception:-

[16] It is submitted that the Plaintiff alleged that the Defendant breached the agreement by failing to give written notification of the cancellation, whereas the agreement attached as Annexure “A” does not provide for written notification of cancellation. In the premises, so it is submitted, the averments do not disclose a cause of action or alternatively are vague and embarrassing.

[17] Even though the portion containing the cancellation clause in the agreement is not attached to the particulars of claim, the averment is made in paragraph 6 of the particulars of claim that the Defendant breached the agreement by failing to give written notification of cancellation within the stipulated periods. The Defendant can with relative ease plead to this averment.

[vii] Seventh Ground of Exception:-

[18] It is contended that the Plaintiff alleges further that it is entitled to the amount of R483 000.00 for the first booking from the 2nd to 6th June 2008 and an amount of R480 000.00 for the booking made for the 16th to 20th June 2008. The rates referred to in the bundle attached as Annexure “A” to Plaintiff’s particulars of claim, is for the period 9th to 13th June 2008 in the amount of R474 3000.00. There are no rates provided for the period 2nd to 6th June 2008 and 16th to 20th June 2008. It is not apparent ex facie the pleadings and Annexure “A” how the Plaintiff arrived at the amounts of R483 000.00 and R480 000.00. In the premises, so it is submitted by the Defendants, that these averments are vague and embarrassing.

[19] The amount of R474 300.00 in respect of 2 to 6 June and 9 to 13 June respectively does not include the cost of the data projector and breakaway room as clearly indicated on the rates quotation. The evidence with regards to the damages suffered by the Plaintiff does not strike at the root of the cause of action due to the lack of particularity. These averments may however be substantiated by evidence.

[D] The Law:-

[20] Over the years, certain general principles have evolved regarding exceptions, which can be succinctly summarized as follows:-

[i] In essence exceptions should be dealt with sensibly and an over technical approach destroys their utility.

[ii] An exception that the pleadings lacks averments which are necessary to sustain an action or defence, will not succeed unless no cause of action or defence is disclosed on all reasonable constructions of the pleading in question.

[iii] Pleadings must be read as a whole and no paragraph can be read in isolation.

[iv] Minor discrepancies can be overlooked and not be regarded as too important.

[v] A distinction must be drawn between facta probanda and facta probantia.

[vi] If evidence can be led that can disclose a cause of action alleged in the pleadings, that particular pleading is not excipiable.

[vii] A pleading is vague and embarrassing if it is capable of more than one meaning or if the meaning cannot reasonably be ascertained.

[viii] An exception that the pleading is vague and embarrassing may be taken only when the vagueness and embarrassment strike at the root of the cause of action as pleaded.

See:- McKelvey vs Cowan NO 1980 (4) SA 525 (Z) at 526 D-E.

Coronation Brick (Pty) Ltd vs Strachan Construction Co (Pty) Ltd 1982 (4) SA 371 (D) at 377, 379.

Jowell vs Bramwell-Jones and Others 1998 (1) SA 836 (W) at 902 G – 903 E.

Michael vs Caroline’s Frozen Yogurt Parlour (Pty) Ltd 1999 (1) SA 624 (W) at 632 D.

South African National Parks vs Ras 2002 (2) SA 537 (C) at 543 A.

Nel and Others NNO vs McArthur and Others 2003 (4) SA 142 (T) at 416 F – 418 I.

Telematrix (Pty) Ltd t/a Matric Vehicle Tracking vs Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at 465 H.

[21] Where an exception is taken, the court must look at the pleading excepted to as it stands, no facts outside those stated in the pleadings can be brought into issue.

See:- Minister of Safety and Security vs Hamilton 2001 (3) SA 50 (SCA) at 52 G-H.

[22] An exception that a pleading is vague and embarrassing is not directed at a particular paragraph within a cause of action, it deals with the whole cause of action, which must be demonstrated to be vague and embarrassing.

See:- Jowell vs Bramwell-Jones 1998 (1) SA 836 (W) at 899 G.

[23] Exception is intended to cover the case where, although a cause of action appears in the summons there is some defect or incompleteness in the manner in which it is set out, which results in embarrassment to the Defendant.

See:- Liquidators Wapejo Shipping Co Ltd vs Lurie Bros 1924 AD 69 at 74.

[24] An exception that the pleading is vague and embarrassing strikes at the formulation of the cause of action and not its legal validity.

See:- Trope vs South African Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264 (A) at 268 F.

[25] Averments in a pleading which are contradictory and which are not pleaded in the alternative are patently vague and embarrassing.

See:- Trope vs South African Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264 (A) at 269 I.

[26] The onus is on the excipient to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice.

See:- City of Cape Town vs National Meat Supplies Ltd 1938 CPD at 63.

[27] A summons will be vague and embarrassing if it is not clear what the contract is on which the Plaintiff relies or whether he or she sues on a written contract or a subsequent oral contract or if it can be read in one of a number of different ways or if there are more than one claim and the relief claimed in respect of each is not separately set out.

See:- Luttig vs Jacobs 1951 (4) SA 563 (O).

Herbst vs Smit 1929 TPD 306.

General Commercial Industrial Finance Corporation Ltd vs Pretoria Portland Cement Company Ltd 1944 AD 444 at 454.

[28] Omission of the date on which a contract of sale was concluded, may render a summons excipiable as being vague and embarrassing.

See:- Horwitz vs Hendriks 1928 AD 391.

[29] Where a party is substantially embarrassed by vagueness or lack of particularity, an exception on the grounds of vagueness or embarrassment should be allowed.

See:- International Tobacco Company of SA Limited vs Wollheim 1953 (2) SA 603 (AD) at 613 B-C.

[E] Conclusion:-

[30] In my view the averments embodied in the particulars of claim attached to the summons are sufficiently clear and unambiguous in order for the Defendant to plead thereto. It does disclose a cause of action and are therefore not vague and embarrassing. In the premises, the application for exception must fail. There is also no reason why costs should not follow the result.

[F] Order:-

[31] Consequently, the following order is made:-

The exception application is dismissed with costs.

R D HENDRICKS

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANT/ DEFENDANT: C NIENABER