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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 55770/14

REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED.

2/6/2017

In the matter between:

FINN MINING SUPPLIES (PTY) LTD                                                                   PLAINTIFF

and

CJ HARMSE T/A H AND M METAL DEALERS                                                DEFENDANT

Coram: HUGHES J

 

JUDGMENT

 

HUGHES J

[1] This is an exception application against the amended Particulars of Claim filed by the plaintiff on 6 July 2016.

[2] In the notice of exception of the defendant, the grounds for the defendant excepting are sent out as follows:

"1. the summons fails to sustain a cause of action against the defendant;

2. it is unclear from the summons whether the plaintiffs claim is based on contract, delict, statute, or any other cause;

3. whatever the case may be based on, namely: contract, delict, statute or otherwise, the plaintiff fails to make the necessary allegations to sustain its claim."

[3] Rule 23 of the Uniform Rules of Court sets out the circumstances in which an exception may be sought, that being, where the pleadings are vague and embarrassing and lacks averments necessary to sustain an action or defence (Rule 23 (1)) and where a pleading contains averments which are scandalous , vexatious or irrelevant (Rule 23 (2)).

[4] The plaintiff argues that the defendant has not set out clearly and concisely the grounds upon which the exception is founded as is required in terms of Rule 23 (3).

[5] The defendant argued that in the heads of argument of the plaintiff the plaintiff submitted that though the defendant's exception did not comply with the rules the plaintiff had stated that they would not argue that point.

[6] The plaintiff contended that what in fact transpired was that the defendant did not adhere to that which was set out as its grounds for the exception but proceeded to make further submissions from the  bar, that were not contained in the notice of exception.

[7] This places this court in the invidious position due to the non-compliance of the Uniform Rules of Court. In Erasmus Superior Court Practice second edition volume 2 at D 1- 309 in dealing with subrule 3 of Rule 23 the author had the following to state:

"Subrule (3): 'The grounds upon which the exception is founded.' this subrule obliges the excipient to state in clear and concise terms the particulars upon which his exception is based, and it is not sufficient merely to state that the summons discloses no cause of action or is vague and embarrassing . An excipient is bound to the grounds of exception set out in his notice of exception, and will not be permitted at the hearing of the exception to rely on different grounds or to raise a different exception."

See also the dicta in Feldman N. O. v EM/ Music Publishing SA (Pty) Ltd 201o (1) SA 1 (SCA) at page 5 A - B where Hurt AJA stated:

"... An excipient is obliged to confine his complainant to the stated grounds of his exception..."

[8] I am thus mindful of the fact that an excipient is obliged to confine his complaint to the grounds as stated in his notice of exception. Further, that the excipient needs to persuade the court that the pleadings are excipiable on every interpretation that can reasonably be attached to it. See Lewis v Oneanate (PTY) LTD and Another [1992] ZASCA 174; 1992 (4) SA 811 at 817F-G where Nicholas AJA said:

"...Since these are proceedings on exception, it must be borne in mind that the appellant has the duty as excipient to persuade the Court that upon every interpretation which the particulars of claim, including annexure 'D', can reasonably bear, no cause of action is disclosed..."

[9] In light of the above the defendant argued that the exception in casu was that the pleadings fail to set out and sustain a cause of action. The defendant contends that a plaintiff who wishes to place reliance on a contract to found a cause of action should prove that the contract had the following essentials therein: (1) which parties agreed to purchase or sell; (2) the thing to be purchased or sold and (3) the price thereof.

[10] The plaintiff pointed out from its amended particulars of claim that the aforesaid was in fact set out and proven in paragraphs 4, 5.1 and 5.2 of the amended particulars of claim.

[11] From the outset I must say I tend to agree with the aforesaid submission made by the plaintiff. As demonstrated below:

(a)  At paragraph 4 of the particulars of claim, it is stated that the plaintiff and the defendant on 5 July 2002 and at Randburg entered into a credit agreement; [This illustrates the contract relied upon by the plaintiff.]

(b)  At paragraph 5.1, it is stated that the plaintiff was to sell and deliver goods in terms of the credit agreement to the defendant;

[This covers the purchase, sale and thing to be purchased or sold.]

(c)  At paragraph 5.2, an amount is advanced of the defendant's indebtedness for the goods sold and delivered.

[This covers the price invoiced for the purchases.]

What the defendant failed to appreciate with regards to the price of the goods, is that the aforesaid amount for the goods sold and delivered, in terms of the credit agreement was to be "approximate annual purchases" to the tune of "R1 500 000.00". This is contained in the credit agreement.

[12] In the circumstances set out above, on every interpretation of the pleadings the defendant would never be embarrassed to plead to the plaintiff s amended particulars of claim as all that was necessary to found a cause of action was present. I find that the plaintiff has set out every material fact to prove his right to obtain judgment of its claim. They need not provide every piece of evidence to prove each facts that are necessary to found the cause of action. At trial the plaintiff can produce the evidence on the merits of its case. See Mckenzie v Farmers' Co-Operative Meat Industries Ltd 1922 AD 16 at 23

[13] In Jowell v Bramwell - Jones and Others 1998 (1) SA 836 at 899 C - F, Heher J stated the following:

"An exception to the pleading, to be successful, must be directed at each separate and distinct cause of action or at a particular cause of action. An exception to the whole of a declaration on the basis that it does not support one of two claims arising out of one cause of action is bad: Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) at 7050, 7060.

'The object, of course, of all pleadings is that a succinct statement of grounds upon which a claim is made or resisted shall be set forth shortly and concisely; where a statement is vague, it is either meaningless, or capable of more than one meaning. It is embarrassing in that it cannot be gathered from it what ground is relied on, and therefore it is also something which is insufficient in Jaw to support in whole or in part the action or defence...' (Per Dove-Wilson JP in Leathern v Tredoux 1911 NPD 346 at 348.) The test formulated in Factory Investments (Pty) Ltd v Record Industries Ltd 1957 (2) SA 306 (T) followed Keely v Heller 1904 TS 101 is whether an intelligible cause of action can be ascertained. An exception that a pleading is vague and embarrassing strikes at the formulation of the cause of action and not its legal validity: Trope and Others v South African Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264 (A)."

[14] Thus for the reasons set out above the exception is bad and accordingly must fail. The costs are to follow the result.

[15] The order made:

 

The exception is dismissed with costs.

 

_________________

W. Hughes

Judge of the High Court Gauteng, Pretoria

 

Appearances

For the Plaintiff: Advocate P. Ellis

Instructed by: Schoeman Esterhuizen Attorneys

For the Defendant: Advocate C. Richards

Instructed by: Meise Nkaiseng lnorporated

Date delivered: 02 June 2017

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