Summit Ridge 84 (Pty) Ltd t.a Henwil Chickens v Nurayn's Foods CC t/a Meat SA and Another (2666/2022) [2024] ZANWHC 213 (21 August 2024)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NUMBER: 2666/2022

Reportable: YES/NO

Circulate to Judges: YES/NO

Circulate to Magistrates: YES/NO

Circulate to Regional Magistrates: YES/NO

In the matter between:-

NURAYN’S FOODS CC T/A MEAT SA 1st Excipient MOHAMMED RIAZ BAGUS 2nd Excipient

and

SUMMIT RIDGE 84 (PTY) LTD T/A HENWIL CHICKENS Respondent

In re:

SUMMIT RIDGE 84 (PTY) LTD T/A HENWIL CHICKENS Plaintiff

NURAYN’S FOODS CC T/A MEAT SA 1st Defendant MOHAMMED RIAZ BAGUS 2nd Defendant

This judgment is handed down electronic by e-mail correspondence to the parties’ legal representatives. The date that the judgment is handed down is 21 August 2024.

JUDGMENT

FMM REID J:

Introduction:

[1] This is an exception against the particulars of claim in which the excipient (defendant in the main action) complains that the particulars of claim is vague and embarrassing to such an extent that the excipient is unable to file a pleading to the claim.

[2] The claim is for debt occurred by the excipient in the respondent’s supply of goods to the excipient. The total amount claimed by the respondent (plaintiff in the main action) is an amount of R669,353.89.

[3] As part of the quantification of the amount claimed, the respondent pleads as follows in the particulars of claim:

“9. On or about 10 October 2019, the 1st Defendant applied for an increase in their credit facilities to R1,000,000.00 (one million rand) A copy of such request is attached hereto as annexure “C”. The 1st defendant’s application for increased credit facilities was approved by the plaintif on or about 10 October 2019, by way of written notice (incorrectly) dated 8 October 2019, dispatched on 10 October 2019 which is attached hereto and marked as annexure “D”.

10. The terms and conditions applicable to the supply of goods by the plaintiff was amended, in terms of annexure “D” as follows:

10.1 The 1st defendant’s credit limit was increased to R1,000,000.00 (one million rand.

10.2 Payment terms were 21 days after invoice date.

10.3 Interest will be charged on overdue amounts at prime plus 4% per year.

…

11.5 The difference between the amount in the “debt column” and the “outstanding column” comprises the amount that the 1st defendant has paid towards settlement of the invoice. As such, where there is no difference between these two (2) columns, the 1st defendant has effected no payment towards the corresponding invoice.

11.6 The “brought forward from previous page” at the top of each comprises the value of the combined debits for the preceding page(s) and has no material bearing on the calculation of the amount claimed.

11.7 The total amount due is comprised of all of the amounts in the “outstanding column” (excluding the “brought forward from previous page “figure”).”

[4] The exception is brought on the following grounds:

“1.1 The plaintiff pleads in paragraph 9 and 10 of the amended particulars that the first defendant is liable to it in a total amount of R579,579.65 which it says is comprised of the amounts for goods sold and delivered from 19 December 2019 to 11 April 2021.

1.2 The plaintiff places reliance on Annexure E to the amended particulars which is a statement of account issued by the plaintiff to the first defendant (“the statement”). Upon consideration of the statement, it is apparent that the statement consists of various invoices issued to the first defendant, and which the last page of the statement reflects a balance brought forward of R4,727,104.36, however the statement also reflects an amount due of R597,578.65, which is the defendants’ alleged liability to the plaintiff at the time that the summons was issued.

1.3 The plaintiff pleads in paragraph 8.15 of the amended particulars, … that in terms of the notice of approval at annexure B, the payment terms were that the first defendant was to effect payment within 14 (fourteen) days from date of issue of the invoice.

1.4 This is at variance to the statement of account as the amount pleaded does not reconcile to the statement of account with balance brought forward of R4,727,104.36 and the balance of R579,578.65 as no payment receipts are recorded in the statement and as a result the defendants are unable to assess which of the invoices from 19 December 2019 to 11 April 2021 are in dispute and how the sum of R579,578.65 is quantified.

1.5 The defendants are embarrassed in pleading to the amended particulars and/or the amended particulars also fail to disclose a cause of action as to when payment was allegedly due.”

[5] In summation, the excipient pleads that the consolidation and reconciliation of the amounts are not set out in the particulars of

claim as to when what amount became due, but there are not sufficient details to be able to determine the total amount claimed.

Legal principles

[6] Exceptions are regulated by Rule 23 of the Uniform Rules of Court, of which the relevant part reads as follows:

“23 Exceptions and applications to strike out

“23(1) Where any pleading is vague and embarrassing, or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may apply to the registrar to set it down for hearing within 15 days after the delivery of such exception: Provided that —

(a) where a party intends to take an exception that a pleading is vague and embarrassing such party shall, by notice, within 10 days of receipt of the pleading, afford the party delivering the pleading, an opportunity to remove the cause of complaint within 15 days of such notice; and

(b) the party excepting shall, within 10 days from the date on which a reply to the notice referred to in paragraph (a) is received, or within 15 days from which such reply is due, deliver the exception.”

[7] The crisp issue before court is whether the particulars of claim contains sufficient infomation to enable the excipient to plead

to the claim.

[8] It was held in Merb (Pty) Ltd v Matthews (Unreported, GJ case no 2020/15069 dated 16 November 2021) that one of the general principles in consideration of an exception is that:

“An exception to a pleading on the ground that it is vague and embarrassing requires a two-fold consideration: (i) whether the pleading lacks particularity to the extent that it is vague; and (ii) whether the vagueness causes embarrassment of such a nature that the

excipient is prejudiced in the sense that he/she cannot plead or properly prepare for trial. The excipient must demonstrate that the pleading is ambiguous, meaningless, contradictory or capable of more than one meaning, to the extent that it amounts to vagueness, which vagueness causes embarrassment to the excipient.’”

[9] It is trite law that the key consideration is that of prejudice. See: Swissborough Diamond Mines (Pty) Ltd v Government of the Republic of South Africa 1999 (2) SA 279 (T) at 337C and the cases there referred to; Living Hands (Pty) Ltd v Ditz 2013 (2) SA 368 (GSJ) at 394D–E; University of the Free State v Afriforum 2017 (4) SA 283 (SCA) at 296E–F; Flentov v Trappler (unreported, WCC case no 16925/2021 dated 6 February 2023) at paragraph [7].

Analysis

[10] Ex facie the particular of claim sets out the basis on which the amount claimed has been calculated, but does not make reference to the specific amounts applicable to the calculation.

[11] It cannot be expected of a defendant to do arithmetic calculations derived from spreadsheets where the specific amounts have not been disclosed. Put differently, it cannot be expected that the defendant should thrall through the invoices in attempting to calculate the amount claimed.

[12] It is crucial that the particulars of claim should set out succinctly both the basis of the calculation, as well as the calculation itself, which by necessity includes the specific amounts. A mere calculation without reference to the specific amounts would, in my view, not suffice.

[13] It follows that the invoices that include the amount and the date that it became due, as well as the invoices that have been paid,

should be set out in the particulars of claim in sufficient detail to enable the defendant to plead thereto.

[14] As the particulars of claim currently reads, I agree with the submissions made on behalf of the excipient that it is difficult, vague and embarrassing to establish the details of the calculation of the amount claimed. The excipient is not in a position to plead to the vague and embarrassing particulars of claim.

[15] In my view, the exception should be upheld. The respondent should be granted an opportunity to correct the particulars of claim setting out the basis of the calculation for the claim.

Cost

[16] The general principle is that the successful party is entitled to its costs occurred in the matter.

[17] I find no reason to deviate from the general principle.

[18] As such, the respondent / plaintiff is ordered to pay the costs of the application.

Order:

[19] In the premise I make the following order:

i) The exception is upheld.

ii) The respondent / plaintiff is granted an opportunity of 10 (ten) court days to amend the particulars of claim.

iii) The cost of the application is to be paid by the respondent on Scale C, party and party basis.

FMM REID

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION MAHIKENG

DATE OF HEARING: 22 MARCH 2024 DATE OF JUDGMENT: 21 AUGUST 2024 APPEARANCES FOR THE EXCIPIENT: ADV D SMIT INSTRUCTED BY: THOKANA ATTORNEYS NORWOOD JOHANNESBURG TEL: 010 593 0788 EMAIL: tariq@thokanattorneys.co.za REF: SRCH/NFMB/LIT672 C/O GUTTA ATTORNEYS SHOP NO 1 PLAZA SHOPPING CENTRE MAHIKENG EMAIL: mohamed@guttalegal.com FOR THE RESPONDENTS: ADV Y ALLI INSTRUCTED BY: VAN VELDEN-DUFFY INC 67 BRINK STREET RUSTENBURG TEL: 014 592 1135 EMAIL patsyt@vvd.co.za C/O VAN ROOYEN TLHAPI WESSELS 9 PROCTOR AVENUE MAHIKENG TEL: 018 381 0804 EMAIL: litigation@vtwinc.co.za REF: V0055/2379/SAS