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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NO: 12587/16

DATE: 28/3/2017

 REPOOTABLE NO

OF INTEREST TO OTHER JUDGES NO

In the matter between:-

FAIRLEADS ELECTRICAL CC                                                                                 Plaintiff

And

DIETLOF  MARE                                                                                                   Defendant

JUDGMENT

NKOSI AJ

INTRODUCTION

[1] This is an  opposed application in terms of rule 23( 1)[1] of the uniform rules of the court on the basis that the plaintiff's particulars  of claim does not  disclose a  cause of   action.

[2] The defendant is the excipient and  has the  duty to persuade the court that upon  every interpretation which the pleading in question,  and  in particular  the  document on which it is based, can  reasonably  bear, no cause of  action  or defence  if

disclosed. [2]

[3] The exception relates to paragraph 6.1 of the particulars of claim which reads as follows:

6.1 "During July 2013  the  Defendant  specifically  requested  the  plaintiff  to render the services and supply the goods as set in the spreadsheet  attached hereto marked as annexure  "A"  (hereafter referred  to  as "the original  work").

[4] It was argued by the defendant that it can be inferred from Annexure A that the plaintiff was in fact a home builder as defined in section 1 of the Housing Consumers Protection measures Act 95 of 1998

[5] The exception raises a defence which is in line with section 10 of the act[3] which provides that :

"10 Registration of home builders:-

1.       No person shall-

a.          Carry on the business of a home builder, or

b.          Receive any consideration in terms of any agreement with a housing consumer in respect of sale or construction of a home,

b.  Receive any consideration in terms of any agreement with  a housing consumer in respect of sale or construction of a home,

Unless that  person is  a  registered  home builder

2.        No home builder shall construct a home unless   that home builder is a registered home  builder.

[6] Section 21  ( 1 ) of the same act  provides that

"Any person who

(a) .....

(b) Contravenes a provision of section 10 (1)....., shall be guilty of an offence  and  liable  on  conviction   to  a   fine  not  exceeding   R  25 000, 00 or to imprisonment for a period  not  exceeding  one  year,  on  each charge".

[7] On the other hand, the plaintiff argued  that  the  action  against  the  defendant  is  based upon a verbal agreement  which  provides  that  the  plaintiff  would  render  certain services  and  supply certain  goods  to  the  defendant  as indicated in annexure A and B. The plaintiff further argued that it was an express term of the agreement that the plaintiff would render FINISHING work to the defendant's  house.

ISSUE

[8] Can it be established from the  pleadings  and  the  annexure  attached  to  the  particulars of claim that the plaintiff was a home builder? If it is so established, the exception would have to  be  upheld  on the basis  that  the plaintiff  failed  to  allege  in the particulars  of claim that it was a  home builder and  was entitled to be    paid.

ISSUE CONSIDERED

[9] This is an application on motion seeking a final resolution to the action. However, it is apparent from the grounds of the exception and the response thereto that there is a dispute between  the parties  regarding  the  terms  of  their verbal agreement.

[10]  The defendant seeks to import his own  understanding  of  the  terms of the  agreement  into the pleading;  an  approach  which  is  vehemently  opposed  by  the  plaintiff.  Such an  approach  has far reaching  consequences  for  the plaintiff.

[11] I am  called upon by the defendant  to make a  finding  that  the plaintiff  was acting  as   a home builder. It would seem the plaintiff did not have home  builders  certificate  required by the Ac t[4] • The effect of the finding sought by  the  defendant  would expose the plaintiff to the provision of section 21 ( 1 ) of the Act. In Gates v Gates[5] the  court stated  that.

" It is true that in certain cases more especially in those in  which charges of criminal or immoral conduct are made, it  has repeatedly been said that such charges must be proved by the "clearrest " evidence or "clear" and satisfactory" evidence  or  "clear  and convincing"  evidence  or some  similar phrase"

[12] It will be unjust and improper to make such a finding without affording the plaintiff adequate opportunity to place all the facts before court. At this stage, what is before court is the inference drawn by the defendant from the annexure to the particulars of claim.

[13] In  Mc  Kelven v Cowan NO [6],   the  court held that

"If evidence can be led which  can  disclose  a  cause  of  action  alleged in a pleading, that particular pleading is not excepiable. Pleading is excepiable only on  the  basis that no  possible evidence Jed on  the  pleadings can disclose a cause of action

[14] The fact that the plaintiff alleges that it was not building a home for the  defendant but was providing finishing work to the defendant is worthy of being considered and such allegation subjected to test during the trial. There are very limited common cause facts from which the court can draw the most reasonable inference. In my view, the inference drawn from the annexure as read with the pleadings cannot be justified as the most reasonable inference.

[15] In National Director of Public Prosecution v Zuma [7]    the  court held that:

"motion proceedings unless concerned with interim  relief,  are all about the resolution of legal issues based on common cause facts . Unless the circumstances are special they  cannot  be  used  to  resolve  factual  issues because they are not designed to  determine  probabilities. It  is well established under the Plascon -Evans rule that where in motion proceedings disputes of fact arises on the affidavit, final order can be granted only if the facts averred in  the  applicant's.... affidavits,  which have been admitted by the respondent.... together  with  the  facts  alleged by the latter ,justify such order . It may be different if the respondent's version consists of bald or uncreditworthy denials, raises fictitious disputes of fact,  is  culpably  implausible,  farfetched  or  so clearly untenable that the court is justified  in rejecting  them merely  on the papers. The court below did not  have regard to these  propositions and instead decided the case on probabilities without rejecting the  NDPP's version".

[16] The plaintiff's cause of action is premised on a verbal agreement concluded between the parties for services rendered and goods supplied by the plaintiff at the defendant's special request and instance. As it stands, the pleading is not excepiable. The annexure and their contents remain in dispute. The dispute ought to be subjected to oral evidence.

[17] I therefore make the following order;

(i)             The defendant's exception is dismissed.

(ii)            The defendant is to pay plaintiff's cost of this application.

__________________________

N. NKOSI

ACTING JUDGE OF GAUTENG DIVISION, PRETORIA

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