Peyper Austen Inc t/a Peyper Lessing Attorneys v Petru Bohta Properties (1277/2021) [2021] ZAFSHC 253 (18 October 2021)

IN

THE HIGH COURT OF SOUTH AFRICA

FREE STATE DIVISION, BLOEMFONTEIN

Case no: 1277/2021

In the matter between:

PEYPER AUSTEN INC t/a PEYPER

LESSING

ATTORNEYS Plaintiff

and

PETRU

BOHTA PROPERTIES

Defendant

CORAM:

PAGE AJ

HEARD ON: 27 August 2021

DELIVERED ON: 18 October 2021

[1] The Plaintiff in this matter, a duly registered incorporated company trading as Peyper Lessing Attorneys, instituted action proceedings against the Defendant in respect of legal services rendered. The action proceedings were instituted by way of a simple summons which was followed by a declaration. The Defendants delivered a notice in terms of Rule 23(1) of the Uniform Rules averring that the declaration contains matters which are vague and embarrassing. The Plaintiff elected not to comply with the request to cure the averred vagueness and subsequently the exception was set down for hearing.

The Exception

[2] The Defendant excepts against the following paragraphs in the declaration:

4.

“During April 2016 at Bloemfontein the Plaintiff, there and then duly represented by Mr. Pieter Peyper and the Defendant, there and then represented by Ms. Petru Botha entered into a verbal agreement, in terms whereof:

4.1…..

4.2….

4.3…

4.4…

4.5 The Plaintiff would attend to all collection matters on behalf of the Defendant.

4.6 The Defendant would be liable to compensate the Plaintiff for the legal collection services rendered.

4.7 Should the mandate be terminated by either party, the Defendant will be liable to make payment of the Plaintiff’s account for services rendered.”

[3] It is submitted on behalf of the Defendant/Excipient that it faces difficulty in establishing the cause of action relied upon by the Plaintiff given that two contradictory causes of action are pleaded, namely a verbal agreement and a termination of mandate.

[4] It is submitted on behalf of the Defendant that fees charged for legal services constitutes a debt since the Plaintiff acquired a complete cause of action for the recovery of the debt on completion of each instruction. It is submitted that the Plaintiff was obliged to account to and invoice the Defendant regularly in accordance with the contract as well as being obliged thereto in terms of the Rules for the Attorneys Profession, promulgated on 26 February 2016 as per Government Gazette no 39740.

[8] It is submitted that payment in terms of paragraphs 4.4 and 4.6 would become due and payable on the rendering invoices in order to escape the defence of prescription and payment in terms of paragraph 4.7 would only become due and payable if and when the Defendant terminates the mandate of the Plaintiff.

[10] It is submitted that the declaration is vague and that the Defendant would be embarrassed to plead thereto since the contents of the contract and the meaning thereof is unclear. It is submitted that the Defendant would thus be able to raise the defence of prescription in respect of 4.4 and 4.6 of the declaration in respect of payments claimed for services rendered more than three years prior to the date of service. In respect of 4.7 of the declaration read with 7.4 thereof, such defence would not be possible and hence the prejudice of the Defendant and embarrassment to plead to the vague particulars of the cause of action.

[5] As dealt with by Erasmus in Superior Court Practice, [1]

“An exception that a pleading is vague and embarrassing is not directed at a particular paragraph within a cause of action: It goes to the whole cause of action, which must be demonstrated to be vague and embarrassing.[2] The 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[3]. An exception that a pleading is vague and embarrassing strikes at the formulation of the cause of action and not its legal validity[4].”

…an exception that a pleading is vague and embarrassing can only be taken when the vagueness and embarrassment strikes at the root of the cause of action as pleaded;

An exception that a pleading is vague, or embarrassing will not be allowed unless the excipient will be seriously prejudiced if the offending allegations were not expunged.[5]”

[6] The cause of action set out in the declaration at hand, as it reads, and as submitted by Plaintiff’s counsel is based on a verbal agreement.

In terms of the verbal agreement, as it reads, Plaintiff will continue to render legal services to the Defendant who will be liable to compensate the Plaintiff. It is a further term of the verbal agreement that the Defendant will be liable to make payment of the Plaintiff’s account upon termination of the mandate to the Plaintiff.

[7] The declaration sets out the background to the verbal agreement as well as how the Defendant’s account was conducted upon instructions from the Defendant. The declaration, read as a whole, sets out a continues collections mandate over a period of time between the parties.

[9] The mandate was terminated, as pleaded, and the Plaintiff claims payment of the amount it believes is owing as per taxed bills of costs.

[10] The declaration, considered as a whole, should be sufficiently clear for a party to plead thereto. The Plaintiff has elected to formulate its cause of action as set out in the declaration. Whether the cause of action is legally valid is not the issue to determine during exception proceedings. The Plaintiff’s difficulty to plead, as submitted lies therein that it is embarrassed to the extent that it is unable to raise a claim of prescription.

[11] I can see nothing preventing the Defendant from proceeding with a plea of prescription in either of the instances it has identified, namely, on an invoice or debt it believes has become due immediately upon the instruction, or on the other hand upon termination of the mandate. Prescription may be raised and adjudicated in a special plea. The Defendant should thus not be embarrassed to plead to the declaration.

[12] The difficulty complained of in pleading has no merit since the reading of the declaration as a whole, sets out the cause of action with sufficient particularity. It sets out an outline of the Plaintiff’s case. The Defendant should have a clear idea of the material facts necessary to make the cause of action intelligible.

[13] In the circumstances the following order is made:

13.1 The Exception is dismissed with costs.

C

PAGE AJ

Counsel for Defendant: Adv J S Rautenbach

Instructed by : Van Wyk Attorneys Inc

47 First Avenue

Office 29

Counsel for the Plaintiff: Adv H E De La Rey

Instructed by: Peyper Lessing Attorneys

39 C First Avenue, Westdene

[1] Erasmus, van Loggerenerg, Superior Court Pracice, 2nd Edition, p D1-298

[2] Jowell v Bramwell-Jones 1998(1)SA 836(W) at 899;Venter and Others NNO v Baritt; Venter and others NNO v Wolfsberg Arch Investment 2 (PTY)Ltd 2008(4) SA 639(C) at 644A.

[3] Liquidators v Wapejo Shipping Co Ltd v Lurie Bros 1924 AD 69 at 74; Scheepers v Krog 1925 CPD 9 at 11; Ciliers v Van Biljon 1925 OPD4; Lockhat v Minister of the Interior 1960 (3) SA 765(D) at 777E; Trope v South African Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264(A) at 268F.

[4] Trope v South African Reserve Bank.

[5] Eskom Holdings v Lesole Aggencies CC (unreported) FB Case No 2555/16 dated 28 September 2017 at para [7].