Rivigan Investments NO 59 BK v Zelske Ontwikkeling BK (1021/2006) [2007] ZANWHC 54 (27 September 2007)

IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO. 1021/2006

In the matter between:

RIVIGAN INVESTMENTS NO 59 BK PLAINTIFF

and

ZELSKE ONTWIKKELING BK DEFENDANT

____________________________________________________________________________

JUDGMENT

MOGOENG JP.

[1] This is an application for the amendment of the Particulars of Plaintiff’s Claim. It is apposed. The background follows below.

[2] The Plaintiff is Rigivan Investments No. 59 BK, a close corporation duly registered in terms of the laws of the Republic of South Africa, with its registered address at Kloof Gardens, Rustenburg.

[3] The Defendant is Zelske Ontwikkiling BK, a close corporation duly incorporated in terms of the laws of the Republic of South Africa and having its registered office at Magaliesberg Office Park, Rustenburg.

[4] A lease agreement was entered into between the parties. The Plaintiff subsequently instituted an action for damages against the Defendant as a result of the alleged breach of the terms of the aforementioned lease agreement.

[5] The Defendant then filed a Notice of Exception, alleging that the Particulars of Plaintiff’s Claim fail to sustain an action or are vague and embarrassing. Accordingly, the Defendant prayed for the upholding of the exceptions and the dismissal of the Plaintiff’s claim with costs.

[6] Pursuant to the aforegoing, the Plaintiff filed a Notice of Intention to Amend the Particulars of Claim, as it put it, to bring about greater clarity.

[7] The Defendant opposes the intended amendment on the basis that the Particulars of Plaintiff’s Claim would still be excipiable even if the intended amendment were to be effected. The details of the objection are set out below:

7.1 Paragraph 4.1.2 states that certain improvements would be effected to the leased premises and para 4.1.3 that the expenses relating to those improvements would be set-off against the rental due. This is said to be excipiable because the Plaintiff has not alleged that the renovations and the costs thereof have been approved by the lessor and also that the structural alterations were approved in writing by the lessor as required by the agreement.

7.2 The allegation that the Defendant committed a breach of contract in that a Mr J.F. De Beer told the Plaintiff that the Plaintiff would be denied access to the premises are said to be excipiable since the Plaintiff has not said that De Beer was instructed by the Defendant to do so. Insufficient facts are said to have been pleaded to sustain a cause of action.

7.3 The Plaintiff alleges in para 5.1 that it enjoyed undisturbed possession of the property until 15 December 2004 and in para 5.2 pleads that de Beer told the Plaintiff that the Defendant did not intend to restore undisturbed possession to the Plaintiff. Because the Plaintiff did not add that it had lost possession as a result of the Defendant’s conduct, then the Defendant claims that no cause of action can be sustained by this allegation alternatively, the Particulars of Claim are vague and embarrassing.

7.4 To properly capture the next ground, I think one needs to quote paras 9.1 and 9.2 of the exception:

“9.1 Essential allegations with regard to a claim for loss of profits would include, at least, the pleading of basic information such as initial budgets prepared when business was commenced, the manner in which the business would have been capitalised, long and short range profits plans, cost accounting data per product, breakeven points, development research, sales, trends and forecasts, intended customer base and stock to be carried. None of these have been pleaded which would have enabled defendant to determine the basis of the intended damages claim nor has the pleader pleaded any facts foundational to the claim.

9.2 In addition, considering that business had been conducted for a certain period, plaintiff, at least, ought to have pleaded the aforesaid facts, as well as the available financial information and profits made for the period of time that the business was conducted. No such facts are pleaded.”

The Plaintiff’s failure to supply the kind of details set out above is what the Defendant contends, renders the Particulars of Plaintiff’s Claim excipiable with regard to the Damages. It then becomes necessary to briefly examine what is required of the Plaintiff.

[8] Rule 18(4) and 18(7) of the Uniform Rules provides that:

“(4) Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be, with sufficient particularity to enable the opposite party to reply thereto.

. . . . .

(7) It shall not be necessary in any pleading to state the circumstances from which an alleged implied term can be inferred.”

It is a clear and concise statement of the material facts, not the whole evidence, upon which the Plaintiff relies that must be pleaded.

Enough must be said to enable the Defendant to plead.

[9] It follows from the basis on which the Defendant has attacked the Particulars of Plaintiff’s Claim that it requires detailed information in the particulars of Plaintiff’s Claim, virtually leaving no relevant fact out. A reading of the Defendant’s papers coupled with the submissions made on its behalf suggest that the evidence that would be required to establish the Plaintiff’s Claim in Court should from part of the Plaintiff’s Pleadings in order for the Particulars of Plaintiff’s Claim not to be excipiable.

[10] As stated above, the Plaintiff intends to amend its Particulars of Claim to add more particularity to the Particulars of Claim. This still does not satisfy the Defendant. The Defendant objects even to the amendment on the basis that the Particulars would still be excipiable. In essence it is as if the Defendant’s idea of acceptable Particulars of Claim is the particulars which are watertight and leaves the Defendant with no or very little opportunity to demonstrate through its plea and evidence in Court why the Plaintiff should not succeed. What the Defendant requires to avoid the Particulars of Claim being excipiable, borders on evidence. Paragraph 7.4 and the objections preceding it make this clear.

[11] The Defendant seems to be too committed to deposing of the matter by way of an exception, that it has essentially turned a blind eye and a deaf ear to everything stated in the intended amendment. This is not the time to be dealing with the merits or demerits of the Plaintiff’s case as if the Court is now being addressed after all the evidence has been led. I am satisfied that there is no merit in the Defendant’s objection to the original Particulars of Claim and even to the amended version thereof.

[12] In the result, the following order is made:

a) The application for leave to amend the Particulars of Plaintiff’s Claim is granted;

b) The Plaintiff is to amend its Particulars of Claim within 15 days from the date of this order; and

c) Costs of the application are to be paid by the Respondent to the Applicant.

__________________

M.T.R. MOGOENG

JUDGE PRESIDENT OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 06 SEPTEMBER 2007

DATE OF JUDGMENT : 27 SEPTEMBER 2007

COUNSEL FOR PLAINTIFF : ADV G.J. DIAMAND

COUNSEL FOR DEFENDANT : ADV P.J. VENTER

ATTORNEYS FOR PLAINTIFF : SMIT STANTON INC.

ATTORNEYS FOR DEFEMDAMT : BOTHA COETZER SMITH