New Urban Plumbing CC v Carrim and Others (32577/2014) [2015] ZAGPPHC 754 (18 September 2015)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

DATE: 18/9/15

CASE NO: 32577/2014

REPORTABLE

OF INTEREST TO OTHER JUDGES

REVISED

In the matter between:

NEW URBAN PLUMBING CC

PLAINTIFF

and

ZAHEED CARRIM FIRST

DEFENDANT

K CARRIM CONSTRUCTION (PTY) LTD SECOND

DEFENDANT

K CARRIM PROPERTY DEVELOPMENT (PTY) LTD THIRD

DEFENDANT

K CARRIM COMMERCIAL PROPERTY (PTY) LTD FOURTH

DEFENDANT

FAIZAN PEROPERTIES (PTY) LTD FIFTH

DEFENDANT

J U D G M E N T

COLLIS AJ:

INTRODUCTION

[1] In the present matter the Defendants (Excipients), except against the Plaintiff's particulars of claim on the basis that it is vague and embarrassing and lacks the necessary averments to sustain a cause of action.

[2] The plaintiffs claim against the defendants is for plumbing services rendered and or goods sold and delivered to the defendants. In its particulars of claim, the plaintiff alleges that during the course of October 2011 to April 2013 the first defendant provided specific and oral instructions to the plaintiff to perform plumbing services and to provide the necessary goods associated therewith at various locations.

[3] It is further alleged that at all material times, the first defendant engaged the services of the plaintiff either for his own benefit or for the benefit of one of the second to fifth defendants. It is further pleaded that the second to fifth defendants' at all material times were under the control of the first defendant.

[4] As a result of the goods supplied and services so rendered, the plaintiff further pleaded that the first, second and fifth defendants, alternatively the first, second, third, fourth and fifth defendants Oointly and severally), alternatively the first, third, fourth and fifth defendants are liable for payment of the outstanding invoices.

GROUNDS FOR EXCEPTION

[5] The defendants set out three specific grounds for exception. These grounds can be summarised as follows:

5.1 that the claims pleaded in the alternative are mutually destructive;

5.2 that the invoice as attached to the summons are not made out to the correct defendant as indicated; and

5.3 only one invoice attached to the summons is made out to the first defendant.

[6] In deciding an exception a court is bound only to the facts set out in the relevant pleading before it. It should be borne in mind that an exception is a pleading and must comply with the relevant rules of court, including Uniform Rule 18. It must contain distinct averments and should contain clear and concise statements of facts upon which the excipient wishes to rely. This should be done with sufficient particularity to enable the opposite party to reply thereto. [1] It follows that an excipient is obliged to confine his complaint to the stated grounds of his exception,[2] and that the excipient carries the onus of showing that a pleading is excipiable.[3]

[7] Uniform Rule 18(6) provides as follows:

"A party who in his pleading relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleading. "

[8] To the matter at hand there had been substantial compliance with the provisions of Uniform Rule 18(6), in that the plaintiff inter alia alleges that the contract was concluded between itself and the first defendant during October 2011 and April 2013, on oral instructions given to the plaintiff by the first defendant. Further at the time the first defendant acted either for himself or for the benefit of either the second to fifth defendants.

[9] The object of an exception is to dispose of a case or portion thereof in an expeditious manner or to protect a party against an embarrassment which is so serious as to merit the costs of an exception. Where an exception is founded upon the contention that the summons disclosed no cause of action, its design is to obtain a decision on a point of law which will dispose of a case in whole or in part and to avoid the leading of unnecessary evidence at a trial. [4]

[10] In the decision of McKenzie v Farmers' Co-operative Meat Industries Ltd[5] the following definition of cause of action was adopted by the Appellate Division and defined to mean the following:

'....every fact which it 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."

[11] I then turn to examine the grounds for exception taken.

Claims pleaded in the alternative are mutually destructive

[12] In prayer 1 of the particulars of claim, the plaintiff seeks judgment in various amounts against the first, second and fifth defendant (but not against the third and fourth defendant). In prayer 2 and in the .alternative to prayer 1 and in the event that the plaintiff's allocation of surplus is incorrect the plaintiff seeks judgment against all five the defendants, jointly and severally in a sum different from each individual amount set out in prayer 1. In prayer 3, and apparently in the alternative to both prayer 1 and 2 and in the event that joint and several liability cannot be proven, the plaintiff seeks judgment against the first, third, fourth and fifth defendants in a sum different from each individual amount in prayer 1 and prayer 2 and thereafter within, 48 hours payment by the plaintiff of certain amounts to the second defendant and to four other entities which are not properly cited and are not parties to this action. These alternative claims of the plaintiff, the defendants contend, are mutually destructive, vague and embarrassing, contain contradictory averments and lack certain necessary averments to sustain a cause of action against them.

[13] The first ground for exception is formulated against the alternative claims prayed for by the plaintiff. This ground does not formulate the lack of particularity pleaded against the defendants, nor does the defendant(s) allege that they do not know what the case is that they are expected to meet. Furthermore, the excipients fail to allege in what manner they are prejudiced in preparing an answer to the claim which they are facing.

[14] Moreover, in the decision of Dharumpal Transport (Pty) Ltd v Dharumpal, cited in paragraph 9 above, it was held, that an exception

may not be taken against alternative claims arising out of the same cause of action.

[15] In its Heads of Argument prepared by counsel for the excipients, various attempts are made to give evidence as to the extent in terms of which these defendants as entities operate. Counsel further pleaded facts, which facts were not formulated in the Notice of Exception and as a result these facts cannot be considered by this Court.

[16] In the absence thereof, I cannot but conclude that there is no merit in the first ground of exception. Invoices attached to the summons are not made out to the correct defendant as indicated.

[17] In paragraph 4.4.5 of the particulars of claim, the plaintiff pleads that annexures A77 to A 115, were made out as payable by the first defendant. The various invoices however depict to have been made out to other defendants in addition to the first defendant. This, the excipients contend makes the particulars of claim, vague and embarrassing, contain contradictory averments and lack the necessary averments to sustain the cause of action.

[18] As per the particulars of claim and in particular with reference to paragraph 4.3 thereof, the plaintiff pleads that upon completion of the various projects in question the first defendant would instruct the plaintiff as to which entity the plaintiff should invoice. These instructions varied from the plaintiff being required to invoice one of the second to fifth defendants alternatively, the plaintiff was to invoice the first defendant in his personal capacity.

[19] The defendants' contention that this pleaded case of the plaintiff lacks particularity and as a result is vague and causing

embarrassment is without merit. It can only be determined at trial during the presentation of evidence, what indeed the contractual

terms were that the parties had agreed upon. This is not a determination to be made during the adjudication of this exception.

[20] The test upon determining as to whether a pleading is vague and embarrassing is whether an intelligible cause of action can be ascertained. Having regard to the particulars of claim as a whole, I cannot but conclude that similarly, the second ground for exception is without merit.

Only one invoice attached to the summons is made out to the first defendant

[21] In respect of the third exception raised, the excipients contend that annexure A77 attached to the summons is for the sum of R 7125.00. On the plaintiff s own version the first defendant had paid in an amount in excess of this amount. It is for this reason that they contend, the particulars are vague and embarrassing, contain contradictory averments and or lack the necessary averments to sustain a cause of action against the defendants.

[22] As per the particulars of claim and specifically with reference to paragraph 4.7 thereof, the plaintiff pleads that no allocation

summary accompanied the payments made by either the first to fifth defendants and

accordingly the plaintiff at its discretion and without alternative option, allocated the payments received to the invoices relating to the specific defendant that had transferred funds to the plaintiff.

[23] If no payments were made by either the defendants, or certain payments made by only some of the defendants, or payments which were made had been incorrectly allocated, it is a matter for the trial court to adjudicate upon the presentation of evidence. In respect of this ground of exception, the excipients once again fail to

disclose how the particulars as pleaded renders them unable to plead their case or in what manner they are prejudiced and as such unable to prepare for trial.

[24] As there is no merit in any of the grounds of exception, it cannot be said that the pleadings do not disclose a cause of action or are vague and embarrassing.

ORDER

[25] In the result the exception is dismissed with costs.

________________________

C. J. COLLIS

ACTING JUDGE GAUTENG DIVISION PRETORIA

APPEARANCES

FOR EXCIPIENTS:

ADV J.R. MINNAAR

INSTRUCTED BY: VAN DER WAL SLADE RAMABULANA INC.

FOR RESPONDENT:

ADV A. GREYLING

INSTRUCTED BY: LAUTENBERG MORRIS ATTORNEYS

DATE OF HEARING: 5 JUNE 2015

DATE OF JUDGMENT: 18 SEPTEMBER 2015

[1] See in this regard the decision SA Independent Order of Mechanics & Fidelity Benefit Lodge v General Accident Fire and Life Assurance Corp Ltd 1916 CPD 457.

[2] See in this regard the decision Thornton v Royal Insurance Co Ltd 1958 (4) SA 171 (C) at 174G.

[3] See in this regard the decision Vogel v Kleynhans 2003 (2) SA 148 (C) at 151

[4] See in this regard the decision Dharumpal Transport (Ply) Ltd v Dharumpal 1956 (1) SA 700 (A).

[5] 1922 AD 16 at 23