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Bensure Management Services (Pty) Ltd v Pyke (2355/2011) [2012] ZAECPEHC 20 (27 March 2012)

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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE- PORT ELIZABETH)


CASE NO: 2355/2011

Date Heard: 15/03/2012

Date Delivered: 27/03/2012


In the matter between:



BENSURE MANAGEMENT SERVICES (PTY) LIMITED …......PLAINTIFF



AND



DEBORAH GLEN PYKE ….................................................DEFENDANT



JUDGMENT

SMITH J


[1] The plaintiff issued summons against the defendant for damages in the amount of R54 991 936.00, allegedly suffered by it as a result of the defendant removing business from plaintiff or its underwriter, in breach of a written agreement between the parties. The defendant has subsequently filed an exception to the plaintiff’s particulars of claim on the ground that they are vague and embarrassing. The exception is particularly aimed at paragraphs 5 and 6 of the particulars of claim.


[2] Paragraph 5 reads as follows:

Defendant breached the terms of the agreement by removing all existing, Plaintiff and new Defendant business as defined in clauses 1.3.5, 1.3.3 and 1.3.7, from Plaintiff or from the underwriter or Plaintiff’s choice.”

[3] Paragraph 6 relates to the damages allegedly suffered by the plaintiff. The plaintiff has subsequently conceded that the latter paragraph is indeed vague and embarrassing on the bases contended for by the defendant and has undertaken to effect the necessary amendments to the offending portions.


[4] The grounds for the exception in respect of paragraph 5 are as follows:

1.1 The Plaintiff has alleged that the defendant breached an agreement by removing business from plaintiff or from the underwriter of Plaintiff’s choice.

1.2 The Plaintiff has therefore pleaded two mutually exclusive alternatives.

1.3 The Plaintiff furthermore does not state the material facts on which the allegation that the Defendant removed business is based.

1.4 More specially, the Plaintiff has not pleaded:

1.4.1 What type of business was “removed”;

1.4.2 When the business was “removed”;

1.4.3 From whom the business was “removed”;

1.4.4 In what manner the business was “removed”.

1.5 In the premises, paragraph 5 of the particulars of claim is vague and embarrassing, and the Defendant would be prejudiced if the particulars were allowed to stand.”


[5] Mr Niekerk, who appeared on behalf of the excipient, submitted that by averring that business had been removed from the plaintiff or from its underwriter, the plaintiff has pleaded two mutually exclusive possibilities which renders the pleadings vague and embarrassing. He submitted furthermore that the plaintiff has simply alleged a breach by reference to the relevant clauses in the contract and has not set out any material facts on which the allegation that there has been a breach of contract is based. The defendant therefore does not know which case she has to meet.


[6] Rule 18.4 of the Uniform Rules of Court reads as follows:

Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies on 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 is trite that a plaintiff is required to plead a summary of the material facts on which he will rely with sufficient lucidity to enable the defendant to plead thereto. These primary factual allegations are also referred to as the facta probanda, and should be distinguished from the secondary allegations, or facta probantia, which are usually matters for evidence. See Jowell v Bramwell-Jones 1998 (1) SA 836 (WLD) at 903A-B.


[8] The meaning and scope of an exception that a pleading is vague and embarrassing has been explained as follows by Mcreath J in Trope v South African Reserve Bank 1992 (3) SA 208 (T) at 211B-E:

An exception to a pleading on the ground that it is vague and embarrassing involves a twofold consideration. The first is whether the pleading lacks particularity to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced (Quinlan v McGregor 1960 (4) SA 383 (D) at 393 E-H). As to whether there is prejudice, the ability of the excipient to produce an exception proof plea is not the only, nor indeed the most important test – see the remarks of Conradie J in Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 C at 28 G-H. If that were the only test, the object of pleadings to enable parties to come to trial prepared to meet each other’s case and not to be taken by surprise may well be defeated. Thus it may be possible to plead to the particulars of claim which can be read in anyone of a number of ways by simply denying the allegations made; likewise to a pleading which leaves one guessing as to its actual meaning. Yet there can be no doubt that such a pleading is exipiable as being vague and embarrassing – see Parow Lands Pty Ltd v Schneider 1952 (1) SA 150 SWA at 152 F-G and the authorities there cited. It follows that averments in the pleadings which are contradictory and which are not pleaded in the alternative are patently vague and embarrassing; one can but be left guessing as to the actual meaning (if any) as conveyed by the pleading.”



[9] Mr Kaplan, who appeared for the plaintiff, submitted that by averring that business has either been removed “from Plaintiff or from the underwriter of Plaintiff’s choice” the plaintiff has in effect pleaded these possibilities in the alternative. Regarding the submission that the plaintiff has failed to plead the material facts on which the allegation that defendant had removed the business rests, he argued that this submission is without substance because such facts would in essence constitute evidence, alternatively, that any embarrassment can be met by a request for further particulars.


[10] An exception on the basis that a pleading is vague and embarrassing cannot be founded only on the basis of lack of particularity. In Absa Bank Ltd v Boksburg Transitional Local Council 1997 (2) 415 at 422 A-C, Fleming DJP said the following in this regard:

But how a specific pleading is to be classified is then an ad hoc decision involving a matter of degree. The decision must necessarily be influenced, inter alia, by the nature of the allegations, their content, the nature of the claim, the relationship between the parties. It is essentially a factual question.”



Ultimately an exception on this basis will only be allowed it the excipient will be prejudiced if the offending paragraphs are allowed to stand. (Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 29 A-D).


[11] Paragraph 5 of the plaintiffs’ particulars of claims really contains the gravamen of the plaintiff’s cause of action. The paragraph is however surprisingly terse and devoid of factual allegations which one would have expected to be present in a paragraph which is supposed to contain the facta probanda of the plaintiff’s cause of action. While the types of business which have allegedly been removed by the defendant are described by reference to definitions contained in the written agreement, the paragraph is silent regarding in what manner the said business is alleged to have been removed by the defendant. The term “remove” is not defined in the written agreement. The averment is therefore nothing more than a conclusion that the defendant’s actions constitute a removal of business contrary to the terms of the contract. The material facts on which this conclusion is based are not stated. Is it for example alleged, in respect of the new business as defined in paragraph 1.3.7 of the written agreement, that the defendant has removed business by not placing it with the plaintiff or its chosen underwriter, that it is diverting it to another underwriter or convincing clients to place their business elsewhere? While it can be argued that it is possible for the defendant to plead and simply deny the allegation, this can in my view not change the fact that the pleading is vague and embarrassing. The offending paragraph’s true meaning is obfuscated by the lack of material facts and the defendant is left guessing as to the case she will have to meet. I am therefore of the view that the defendant would be prejudiced if the paragraph is allowed to stand in its present form.


[12] I can also not agree with Mr Kaplan’s submission that the words “from Plaintiff or from the underwriter of Plaintiff’s choice” mean that the plaintiff has effectively pleaded these two possibilities in the alternative. The clauses in the written agreement which are referred to in this paragraph define different types of business which, in terms of clause 3.3 of the written agreement, would all be placed with an underwriter of the plaintiff’s choice. Is it averred that the defendant has removed some business from the plaintiff and some from its underwriter, or that all the business has been removed from either of them? The pleading is therefore in my view vague and embarrassing for this reason also.


[13] In the result the exception is upheld with costs and the plaintiff is granted leave to amend its particulars of claim within a period of twenty one (21) days from the date of this judgment.














_______________________

J SMITH

JUDGE OF THE HIGH COURT



Appearance

Counsel for the Plaintiff : Adv D Niekerk

Attorney for the Applicant : Joubert Galpin Searl

Mill Park

P.O Box 59

PORT ELIZABETH

Tel: 041 396 9220


Counsel for the Respondent : Adv J. Kaplan

Attorneys for the Respondent : Vlok Attorneys

Suite 6A Moffet on Main Lifestyle

Main Road

Walmer

PORT ELIZABETH

Ref: M A Vlok/CT/P4801/HC/11