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IN THE NORTH WEST HIGH COURT, MAFIKENG

                                                            CASE NO:  1949/2016

In the matter between:

MAREFE MACDONALD PHAKEDI                                 1^st Plaintiff/ Respondent

FERAME PHARMACEUTICAL CC                                 2^nd Plaintiff/Respondent

and

MEC DEPARTMENT OF EDUCATION

AND SPORTS DEVELOPMENT                                      1^st Defendant/Applicant

DIRECTORATE SUPPLY

CHAIN MANAGEMENT                                                   2^nd Defendant/Applicant

DATE OF HEARING                                             :           18 OCTOBER 2019

DATE OF JUDGMENT                                          :           31 OCTOBER 2019

FOR THE APPLICANT/DEFNDANT       :           ADV. MONGALE

FOR THE RESPONDENT/PLAINTIFF   :           ADV. NCUBE

ORDER

(i)           The exception raised by the applicants/defendants against the respondent’s/plaintiff’s amended particulars of claim is upheld.

(ii)          The respondents/plaintiffs are granted leave to amend their particulars of claim within twenty (20) days from date of this order.

(iii)        The plaintiffs are ordered to pay the costs of this (2^nd) exception jointly and severally, the one paying the other to be absolved.

JUDGMENT

HENDRICKS ADJP

Introduction

[1]        The first plaintiff/respondent is the sole director of the second plaintiff/respondent which is a close corporation. The second plaintiff/respondent tendered for the supply of science kits to certain schools. On 30 November 2010 the North West Provincial Department of Education (department), sent a letter to the second plaintiff/respondent notifying it of the approval of the supply of the said science kits. The letter read thus:

“The Manager

Ferame Farmaceutical

P.O.Box 175

Montshioa

2737

Tel/Cell:  018 381 0753 /082 432 6280

Fax:         018 381 0797

From:       The Acting DPC Chairperson

BID EDU 36/09 NW: SUPPLY OF LIFE SCIENCES AND/OR REPLENISHMENTS OF APPARATUS AND CONSUMABLES FOR GRADE TEN TO TWELVE FOR A PERIOD OF THREE YEARS.

The Superintendent - General by the recommendation of the Department Procurement Committee meeting approved as follows:

Contractor	Contract Amount
Ferame Farmaceutical	R 155,476.61 per kit including training

 1.    Bid EDC 36/09 NW has been accepted.

2.    The letter of acceptance constitutes a binding contract but no services should be rendered until a written official order is issued.

3.    The fully signed bid documents, the deliverables and the signed letter of acceptance /award constitutes the terms and conditions of the contract.

4.    You are required to give a written indication that you will be able to deliver at the tendered price within 7 days of receipt of this correspondence.

5.    The bidder shall at any stage of the execution of the project or on completion be subject to site inspection and the premises of the bidder should remain open for this purpose.

6.    Awarded for the first year renewable for the Outer Two (2) years based on the supplier's performance.

7.    Service Level Agreement should be signed by the service provider with the Department of Education.”

            The letter is annexed to the amended particulars of claim as “FP1”.

[2]        On 09 November 2011 a meeting was held between the different role-players. Present at this meeting were inter alia the first plaintiff/respondent representing the second plaintiff/respondent, Ms Nkoliswa as chairperson representing the department, and others. The purpose of the meeting was to discuss the signing of a service level agreement (SLA) for the science kits, to consider all outstanding aspects and what need to be done to fast-track the process. A copy of the minutes is annexed to the amended particulars of claim as “FP2”.

[3]        On 30 July 2012 the department wrote a letter to the second plaintiff/respondent informing it of the written request to begin delivery of the science kits to schools. Nothing came of this. A copy of this letter is annexed to the amended particulars of claim as “FP3”. On 04 October 2016 the attorneys of record on behalf of the plaintiffs/respondents sent a letter of demand to the defendants/applicants claiming damages as a result of breach of contract to the sum of R180 013 736.00. The letter of demand was followed by summons issued on 22 November 2016. The letter of demand is annexed to the amended particulars of claim as “FP4”.

[4]        The defendants/applicants filed an exception to the particulars of claim attached to the summons on the grounds that it is vague and embarrassing, alternatively, that it fail to disclose averments necessary to sustain a cause of action. This exception was opposed by the plaintiffs/respondents and they also filed an application that the defendants/applicants be ordered to furnish certain documentation and information. Both the exception as well as the aforementioned application served before Kgoele J on 17 August 2017. The exception was upheld but the application was dismissed as per the ‘Reasons for Judgment’ handed down on 01 December 2017. The plaintiffs/respondents were directed to amend their particulars of claim. They filed their amended particulars of claim on 05 February 2018.

[5]          The defendants/applicants again filed an exception to plaintiffs/respondents amended particulars of claim. This was done again on the basis that the amended particulars of claim are vague and embarrassing, alternatively, fail to disclose averments necessary to sustain a cause of action. The plaintiffs/respondents, like it was the case with the first exception, opposed it although the basis on which it is opposed, is not specified. The matter again served before Kgoele J on 21 August 2018. The order that was granted was that the application is struck off the roll as the notice of exception was defective. Each party was ordered to pay its own costs. Convinced that the defective notice of exception was rectified, the exception was again enrolled on the opposed motion court roll of 18 October 2019. After listening to extensive arguments by counsel, judgment was reserved.

[6]          Rule 23 of the Uniform Rules of Court states:

“23 Exceptions and Applications to Strike Out

(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 set it down for hearing in terms of paragraph (f) of subrule (5) of rule (6): Provided that where a party intends to take an exception that a pleading is vague and embarrassing he shall within the period allowed as aforesaid by notice afford his opponent an opportunity of removing the cause of complaint within 15 days: Provided further that the party excepting shall within ten days from the date on which a reply to such notice is received or from the date on which such reply is due, deliver his exception.

[Subrule (1) amended by GN R2164 of 1987, by GN R2642 of 1987 and by GN R1262 of 1991.]

(2)  Where any pleading contains averments which are scandalous, vexatious, or irrelevant, the opposite party may, within the period allowed for filing any subsequent pleading, apply for the striking out of the matter aforesaid, and may set such application down for hearing in terms of paragraph (f) of subrule (5) of rule (6), but the court shall not grant the same unless it is satisfied that the applicant will be prejudiced in the conduct of his claim or defence if it be not granted. (3) Wherever an exception is taken to any pleading, the grounds upon which the exception is founded shall be clearly and concisely stated. (4) Wherever any exception is taken to any pleading or an application to strike out is made, no plea, replication or other pleading over shall be necessary.”

[7]        In determining an exception, the court is bound to accept all allegations of fact made in the particulars of claim as true and may not have regard to any other extraneous facts or documents. The court may uphold an exception to a pleading in the event of the excipient having satisfied the court that the cause of action or conclusion of law in the pleading cannot be supported on every interpretation that can be accorded to the pleading. The purpose of an exception is to protect litigants against claims that are bad in law or against an embarrassment which is so serious as to merit the costs even of an exception.

See:      •      Nasionale Aartapel Ko-operasie Bpk v Price

Waterhouse Coopers Ing 2001 (2) SA 790 (T).

•       Trope v S A Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264 (A).

[8]          An exception is a useful procedural tool to weed out bad claims at an early stage. It provides a useful mechanism for weeding out cases without legal merits. A pleading is vague if it fails to provide the degree of detail necessary in a particular case to properly inform the other party of the case being advanced. The typical prejudice justifying an exception in this regard is if the allegations contained in a particulars of claim are such that a defendant is unable to plead properly thereto. An exception must go to the whole cause of action. In Vermeulen v Goose Valley Investments Ltd 2001 (3) SA 986 (SCA) at paragraph [7], Marais J said the following:

"It is trite law that an exception that a cause of action is not disclosed by a pleading cannot succeed unless it be shown that ex facie the allegations made by a Plaintiff and any document which his or cause may be based, the claim is and (not maybe) bad in law."

[9]          During argument Adv. Ncube, on behalf of the plaintiffs/respondents, contended that the notice which was rectified in order to state that the attorney does have right of appearance in this Division, did not allow the plaintiffs/respondents the period in order to rectify the cause of complaint, as stipulated in the rules. Therefore, so it was contended, the application cannot succeed. Adv. Mongale in reply stated that this is trial by ambush in that the plaintiffs/respondents did not notify the defendants/applicants (excipients) that they are going to raise this issue. No notice was given and neither was it raised in the plaintiff’s/respondent’s heads of argument. It was raised for the first time, totally unexpected, during oral submissions by Adv. Ncube on behalf of the plaintiffs/respondents.

[10]        It is quite apparent that this is not the first exception raised by the applicants/defendants against the plaintiff’s/respondent’s particulars of claim. Same was also done in respect of the original particulars of claim. Neither is it the first notice against the amended particulars of claim. Notice of exception, although defective, came to the attention of the plaintiffs/respondents which caused the exception application to be struck from the roll on 21 August 2018. The rectified notice was indeed in response to what happened on 21 August 2018. This must have been as no surprise to the plaintiffs/respondents seeing that notice of the exception to the amended particulars of claim was given, although defective. To crown it all, a notice to oppose the exception was filed by the plaintiffs/respondents. Furthermore, comprehensive heads of argument were also filed by both parties. It therefore came as no surprise to the plaintiffs/respondents that the matter, as an opposed exception application, was on the roll for 18 October 2019. To cry fowl that the notice did not afford the plaintiffs/respondents the opportunity to rectify the cause of complaint is to put form over substance. As alluded to earlier, not only were the plaintiffs/respondents aware of the exception raised against the amended particulars of claim, but they also filed a notice to oppose same as well as heads of argument. This Court has an inherent discretion to condone non-compliance with the rules. It is often said that the rules are made for the court and not the court for the rules. I am inclined to condone the said non-compliance with the rules in the interest of justice. This out of the way, the Court will now determine the merits of the exception application.

[11]        The plaintiffs/respondents allege in their amended particulars of claim that a valid contract came into existence between them and the defendants/applicants. This is based on the documentation “FP1”, “FP2”, “FP3” as aforestated, together with a SLA that plaintiffs/respondents allege was signed but not attached to the amended particulars of claim. The plaintiffs/respondents contended that the SLA is in possession of the defendants/applicants. The defendants/applicants in reply state that the SLA was never signed and there was therefore no valid contract entered into between the parties.

[12]        The amended particulars of claim read as follows:

“3.2     On 30 November 2010, the North West Provincial Department of Education, duly represented by the Acting Chairperson of its Directorate: Supply Chain Management accepted the Second Plaintiff's bid with reference number no. EDU36/09NW. A copy of the letter, of acceptance is annexed hereto marked Annexure “FP1”.

3.5      A written Service Level Agreement was signed by the First Plaintiff, duly representing the Second Plaintiff and by the Acting Chairperson of the North West Provincial Department of Education's Directorate: Supply Chain Management during the period from January to October 2011 at Garona Building Ground Floor, Mmabatho.

3.6      The Defendants are in possession of the fully signed bid documents, the ‘deliverables’ and the signed letter of acceptance of the award as well as the Plaintiffs’ letter in response to paragraph 4 of Annexure “FPI” and the Plaintiffs have no copy of any of these documents and are therefore unable to comply with the provisions of Rule 18 of Uniform Rules in this regard.”

[13]        In their amended particulars of claim, the plaintiffs/respondents rely on the signed bid documents, the deliverables, the signed letter of acceptance of the award of the tender, plaintiffs’/respondents’ letter in response to paragraph 4 of annexure “FP1” and the SLA so signed on behalf of the parties, as constituting the conclusion of a binding contract between the parties.

[14]        Like with the original particulars of claim, the plaintiffs/respondents failed to annex the documentation referred to in paragraphs 3.5 and 3.6 of the amended particulars of claim. This, so it was contended by the defendants/applicants (excipients), renders the amended particulars of claim also excipiable. Rule 18 (6) of the Uniform Rules of Court states:

“(6)   A party who in his pleading relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleading.

[Subrule (6) substituted by GN R2164 of 2 October 1987 and by GN R2642 of 27 November 1987.]

[15]        The allegation by the plaintiffs/respondents that they are not in possession thereof and that the defendants/applicants are in possession thereof are insufficient. No explanation is offered as to why the plaintiffs/respondents are not in possession of the copy of the SLA. Absence an explanation by the plaintiffs/respondents as to the reason(s) why they are not in possession of the SLA renders the amended particulars of claim, just like the original particulars of claim, excipiable. Kgoele J in her ‘Reasons for Judgment’ deals with this aspect and stated:

“Clearly the Service Level Agreement that was allegedly signed the parties forms part of the cause of action put forward by plaintiffs. It probably encapsulates the acceptance of the award by the plaintiffs, but what compounds the problem of the plaintiffs in this matter further is that they did not even explain why they did not have in their possession these important documents except stating that the defendants are in possession of them. The importance of the Service Level Agreement cannot be over-emphasized as the terms, conditions and remedies for the breach of the agreement would probably have been mentioned in it.”

[16]      Kgoele J found that the failure by the plaintiffs/respondents to annex such documentation to the particulars of claim, was in non-compliance with the provisions of Rule 18(6) of the Uniform Rules of Court. Furthermore, Kgoele J found that the assertion by plaintiffs/respondents to the effect that they were not in possession of such documentation and that same were in possession of defendants/applicants, was in the circumstances not sufficient to excuse such non-compliance in the absence of reasons explaining why they did not to have such documents in their possession or what happened to such documentation. Kgoele J, with reference to the decision of Absa Bank Ltd v Zalvest Twenty (Pty) Ltd 2014 (2) SA 119 (WCC), upheld the exception taken by defendants/applicants and granted the plaintiffs/respondents leave to amend their particulars of claim to cure the material defects. I am in full agreement with the conclusion reached by Kgoele J. The amended particulars of claim do not cure the defects and are still vague and embarrassing and does not disclose a cause of action.

[17]        “FP1” to the amended particulars of claim is termed an acceptance letter that was sent from the department (defendant/applicant) to the second plaintiff/respondent. The plaintiffs/respondents allege that this letter constitutes a binding contract between the parties. To me, this letter merely notify the second plaintiff/respondent of the approval of the award and does not constitute a valid contract between the parties. The second plaintiff/respondent was required to signify its acceptance of the approval of the award of the tender by itself signing a letter of acceptance. Absence such a letter of acceptance by the second plaintiff/respondent, no binding contract came into existence between the parties. The contention in paragraph 3.6 of the amended particulars of claim that “the Defendants are in possession of the fully signed bid documents, the ‘deliverables’ and the signed letter of acceptance of the award as well as the plaintiffs letter in response to paragraph 4 of Annexure “FP1”, is excipiable because it is vague and embarrassing and does not disclose any cause of action.

[18]        Paragraph 4 of the amended particulars of claim state:

“THE TERMS OF THE CONTRACT:

4.1    The relevant express terms of the contract between the parties which came in to existence by way of Annexure 'FPI' and which are contained in the written documents referred to in paragraph 3.3.2 above, were the following:

4.1.1   That the Second Plaintiff would deliver life sciences kits and train educators/subject advisors in using the kits at R155 476,61 per kit;

4.1.2   The supply of the kits would be for a period of 3 years;

4.1.3   The kits were one each for Grades 10, 11 and 12 per school;

4.1.4   The kits were to be supplied to 386 schools of which 186 were to be high schools;

4.1.5   Written orders would be issued by the Directorate: Supply Chain Management, giving the Second Plaintiff six weeks to deliver from date of each order;

4.1.6   Delivery should be done directly to the schools starting mid-February in each year;

4.1.7   Delivery notes would be signed by the principals of the schools;

4.1.8   Training had to be given to 18 subject advisors each over a 3 day, once-off training period during which accommodation and meals would be payable by the Provincial Department of Education;

4.2    In addition to the above the relevant implied terms of the contract were the following:

4.2.1   That the Defendants, representing a provincial organ of State would act in terms of Sections 217(1) and 217(2) of the Constitution;

4.2.2   The Defendants would further comply with Section 2 of the Broad-based Black Economic Empowerment Act, No. 53 of 2003 and ensure that the implementation of the contract promotes economic transformation in order to enable meaningful participation of black people in the economy (including the First Plaintiff) and to increase the extent in which the Plaintiffs as new enterprises increase their access to economic activities, infrastructure and skills training;

4.2.3   The Defendants will at all times ensure that the implementation of the contract leads to broad-based and meaningful participation in the economy by black people, including the First Plaintiff in order to achieve sustainable development and general prosperity, and that it empowers the Plaintiffs by enabling access to economic activities, ownership and skills.”

              This is with reference to the written documents as stated in paragraph 3.3.2 being the signed bid documents, the deliverables and the signed letter of acceptance of the award.

[19]        These documents do not stipulate the terms as set out in paragraph 4.1.1 to 4.1.8 of the amended particulars of claim. The “terms” referred to in these paragraphs are taken from the minutes of the meeting (“FP2”) that was held. Furthermore, the allegations contained in these paragraphs do not constitute the terms of the contract but relate to issues discussed at the meeting held.

[20]        In paragraph 5 of the amended particulars of claim, the plaintiffs/respondents allege that the actions of the defendants/applicants constitute a breach of contract, in particular because of the defendant’s/applicant’s failure to furnish the plaintiffs/respondents with written official orders. The defendants/applicants contend that “written official orders” do not form part of the express or implied terms of the allege contract, as set out in paragraph 4 of the amended particulars of claim, but refers merely to the minutes of the meeting held. Because it is not a term of the alleged contract, there can be no breach of this term. As such, the amended particulars of claim does not disclose a cause of action and are therefore excipiable.

[21]        Adv. Ncube contended that the plaintiffs/respondents be afforded yet another opportunity to remedy the defective amended particulars of claim. Adv. Mongale submitted that such an opportunity should not again be afforded to the plaintiffs/respondents as they already had an opportunity granted by this Court per Kgoele J and utilized it. Therefore, another opportunity should not be granted. More so, because the amended particulars of claim are irreplaceable and irremediable. Being fundamentally defective and not capable of being remedied, another opportunity should not be afforded to the plaintiffs/respondents as no cause of action would be made out by the plaintiffs/respondents, as it would not yield a different outcome. The contention further is that the amended particulars of claim are bad in law as it constitute a case without legal merits. Therefore, the exception should be upheld and plaintiffs/respondents action be dismissed with costs.

[22]        In Khan NO & Another v Maxprop Holdings (Pty) Ltd & another (084/2018) ZASCA 171 (30 November 2018), the following is stated:

“[16]      In my view, the court a quo was correct in its finding that the amendments sought did not cure the defect that, as amended, the particulars of a claim would not disclose any cause of action. There is no allegation made in the proposed amendment that Cowan had any control of the funds in the Garlicke & Bousfield trust account, or any other account from which the payments were made to Maxprop, which gave him a right of disposal over the money.

[18]        In my view, the proposed amendments lacked sufficient averments from which it could reasonably be inferred that Cowan’s estate parted with rights that formed part of his estate. The court a quo correctly found that the particulars of claim would remain excipiable, as the claim had not been brought within the ambit of s 26(1) of the Act.

[21]        The law governing exceptions and the appropriate consequential relief, if upheld is clear. An exception that a cause of action is not disclosed by a pleading ‘cannot succeed unless it be shown that ex facie the allegations made by a plaintiff and any document upon which his or her cause of action may be based, the claim is (not may be) bad in law’. In cases where an exception has successfully been taken to a plaintiffs’ initial pleading on the ground that it discloses no causes of action, the invariable practice of our courts has been to order that the pleading be set aside and that the plaintiff be given leave, if so advised to file an amended pleading within a certain period of time. The law on this subject has recently been re-affirmed by this Court in Ocean Echo Properties 327 CC v Old Mutual Life Assurance Company (South Africa) Limited, where it was held:

‘[8]     . . . The upholding of an exception disposes of the pleading against which the exception was taken, not the action or defence.  An unsuccessful pleader is given the opportunity to amend the plea, even when the plea has been set aside because it does not disclose a defence. The rationale for this seems to be that although the defence contained in the pleading may be bad the pleading as such continues to exist. Ordinarily therefore the court should grant leave to amend and not dispose of the matter. Leave to amend is not a matter of an indulgence; it is a matter of course unless there is a good reason that the pleading cannot be amended.  No ‘good reason’ was evident or asserted in this case. In those circumstances, counsel for Old Mutual conceded that, irrespective of the merits of the exception, Le Grange J ought not to have proceeded to enter judgment against the appellants. . . .’ (my emphasis.)

[22]        Although Ocean Echo Properties related to a plea, the approach set out therein also holds in respect of particulars of claim excepted against. In Belet Cellular v MTN Service Provider  [2014] ZASCA 181, this court held:

‘[5]     As was said by Brand JA in Trustees, Bus Industry Restructuring Fund v Break Through Investments CC & others  [2007] ZAGPHC 101;  2008 (1) SA 67 (SCA) para 11-

‘Because the respondents chose the exception procedure - instead of having the matter decided after the hearing of evidence at the trial - they had to show that the appellants' claim is (not may be) bad in law. In the present context they therefore had to show that clause 19.5 cannot reasonably bear the narrower meaning contended for by the appellants (see eg Lewis v Oneanate (Pty) Ltd & another  [1992] ZASCA 174;  1992 (4) SA 811 (A) at 817F - G; Vermeulen v Goose Valley Investment (Pty) Ltd  [2001] 3 All SA 350 (A) para 7).’ (my emphasis.)

[23]        In my view, the real bone of contention in this case is that the appellants have not alleged, in their particulars of claim, that the returns paid to Maxprop were part of the deceased’s insolvent estate or made any other allegation to the effect that the deceased had a right of control or disposal over the funds which would bring such payments within the ambit of a s 26(1) disposition. I am thus not persuaded that the appellants would not be able to cure the defect in the pleadings.”

(emphasis added)

I find this dictum quite apposite in this matter. I am equally unpersuaded that the defect in the amended particulars of claim cannot be cured. Therefore, the exception should be upheld and the plaintiff’s/respondent’s be granted another indulgence to cure the defects. Costs should follow the result.

Order

[23]      Resultantly, the following order is made:

(i)           The exception raised by the applicants/defendants against the respondent’s/plaintiff’s amended particulars of claim is upheld.

(ii)          The respondents/plaintiffs are granted leave to amend their particulars of claim within twenty (20) days from date of this order.

(iii)        The plaintiffs are ordered to pay the costs of this (2^nd) exception jointly and severally, the one paying the other to be absolved.

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R D HENDRICKS

ACTING DEPUTY JUDGE PRESIDENT OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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