---

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: 943/2018

In the matter between:

ADLU PROJECTS CC                                                      Applicant

and

JIGA INTERNATIONAL DEVELOPMENT (PTY) LTD      Respondent

OPPOSED MOTION

GURA J

DATE OF HEARING            :        08 AUGUST 2019

DATE OF JUDGMENT        :        30 APRIL 2020

FOR THE APPLICANT        :        MR N.J ESTERHUYSE

FOR THE RESPONDENT   :        ADV S.J HAYWARD

JUDGMENT

GURA J.

Introduction.

[1]     The plaintiff sued the defendant based on the latter’s acknowledgement of debt. In its particulars of claim, the plaintiff makes, amongst others, the following averments:

“4.

                   “On or about 7 March 2013 and at Rustenburg the Defendant in     writing acknowledged being indebted towards the Plaintiff in the        amount of R611 332.06 plus interest at the prime interest rate of      Standard Bank Ltd plus 4% from 1 February 2013 to date of     payment. A copy of the acknowledgement of debt is annexed hereto marked Annexure “POC1” and Plaintiff requests that the contents   thereof be incorporated herein.

5.

                   Defendant breached the payment terms referred to in Annexure         “POC1” and only affected total payment in the amount of         R238 273.51 to Plaintiff with the last payment of R17 068.38 on 1    February 2016. In the premises a total balance of R775 600.96        plus interest from 25 April 2018 remains due and payable to the           Plaintiff.

6.

                   Plaintiff annexes hereto marked Annexure “POC2” a statement confirming the payments received and balance due and requests that the contents thereof be incorporated herein as if specifically    repeated.

                   WHEREFORE PLAINTIFF PRAYS FOR JUDGEMENT AGAINST DEFENDANT AS FOLLOWS:

1.     Payment of the amount of R775 600.96.

2.     Payment of interest on the above amount at the prime rate of Standard Bank Ltd plus 4% from 25 April 2018 to date of final payment.

3.     Cost of suit.

4.     Further and/or alternative relief.”

Exception.

[2]     The defendant raised an exception to the particulars of claim. I quote in full, the details of the said exception:

          “TAKE NOTE that the plaintiff’s particulars of claim dated 4 May 2018 lacks the requisite averments necessary to sustain a cause of action; consequently the defendant takes exception as follows:

1.                 The plaintiff has failed to comply with rule 18(3) in that each pleaded paragraph does not contain a distinct averment. Paragraph 4 and 5 contain numerous averments that should be distinctly pleaded.

2.                 The plaintiff has failed to comply with rule 18(4) in that numerous material facts that make up the sort of cause of action at issue have not been pleaded:

2.1     The daily, monthly or annual date for payment performance has not been pleaded; this despite the   fact that breach of contract and mora interest has been claimed. 

2.2     The daily, monthly or annual agreed upon payment performance quantum has not been pleaded; this despite the fact that breach of contract and mora    interest has been claimed.

2.3     The plaintiff has failed to plead as whether the pleaded “POC1” prime +4% interest rate applied, firstly on a simple or compounded basis, and secondly on a daily, monthly or annual basis.

2.4     The plaintiff has failed to plead the precise prime rate    figure(s) applicable to its cause of action.

3.       The plaintiff has failed to comply with rule 18(6) in that:

3.1     It is unclear as to which individuals represented the defendant in concluding ‘POC1’.

3.2     It is unclear as to whether the parties reached consensus in terms of ‘POC1’ and, if so, which individual represented the plaintiff at the time that the parties reached consensus.

3.3     It is unclear as to where physically speaking the plaintiff’s representative(s) were at the time that consensus in terms of ‘POC1’ was reached.

3.4     ‘POC2’ has been attached to the particulars of claim despite the fact that it has not pleaded as being relied upon as a contract.

3.5     It is unclear as to whether ‘POC2’ forms part of the contract ostensibly relied upon via ‘POC1’, or whether both documents are independent contracts that form part of the cause of action.

___ ___ ___ “

 Plaintiff’s response.

[3]     Failure to comply with Rule 18(3).

3.1    This cause of complaint is with respect not that averments necessary to sustain a cause of action are lacking but that the    particulars of claim are vague or embarrassing due to not containing, as far as possible, distinct averments in every paragraph.

3.2    An exception that a pleading is vague and embarrassing may   not be raised before a prior notice has been delivered allowing an opportunity to remove the cause of complaint within fifteen days.

See: Uniform Rules of Court, Rule 23(1)  

3.3    It is common cause that no such prior notice to remove the     alleged cause of complaint was delivered by the excipient in this matter.

3.4    In the premises this ground of exception stands to be     dismissed on this point alone.

3.5    In the alternative, it is respectfully submitted that any alleged   lack of separate averments does not cause the particulars of    claim to lack averments necessary to sustain a cause of   action as all averments necessary to sustain a cause of action are duly set out in the particulars of claim.  

[4]    Failure to comply with Rule 18(4).

4.1    It is again with respect evident that the causes of   complaint referred to above, are that the particulars of claim are vague or embarrassing, without a prior notice   in terms of rule 23(1) being delivered requiring the cause    of complaint to be removed.

4.2    The plaintiff’s cause of action is based upon a written acknowledgment of debt in an amount of R611 332.06   plus interest at the prime interest rate of Standard Bank    Ltd plus 4% from 1 February 2013 to date of payment.     Plaintiff annexed the written acknowledgement of debt       as annexure “POC1” to its particulars of claim         requesting that the contents thereof be incorporated in   the particulars of claim.

4.3    Annexure “POC1” clearly confirms the amounts and       time for payment by the defendant to the plaintiff in    numbered paragraph 1 and 2 thereof.

4.4    Plaintiff expressly alleges that defendant breached the payment terms referred to in Annexure “POC1”.

4.5    Rule 18(4) requires a pleading to disclose a cause of     action, even though this is not expressly stated in the        subrule. Rule 18(4) is interpreted and applied as   requiring that a cause of action must be contained in the pleading.

See: Makgae v Sentraboer [Kooperatief] Bpk 1981 [4] SA 239 (T) at 244C

4.6    It is respectfully submitted that all facts necessary to sustain the plaintiff’s cause of action against the    defendant are set out in the particulars of claim, read   with the annexures thereto.

4.7    In the premises these grounds of exception cannot be   upheld and should be dismissed.

[5]     Failure to comply with Rule 18(6).

5.1    The allegations made by the excipient in paragraph 3.1 to 3.5 of the exception  again relate to an alleged complaint that the averments in the particulars of claim are vague or   embarrassing and not that it leads to no cause of action being disclosed.

5.2     The excipient is precluded from relying on any exception that a pleading is vague and/or embarrassing as this is not the ground of exception raised and no prior notice to remove the cause of complaint was delivered.

5.3     It is in any event trite law that a Court should not look too critically at a pleading and unless the excipient can satisfy the Court that there is a real point of law or a real embarrassment, the exception should be dismissed.

5.5     Annexure “POC2” was clearly described as a statement confirming all payments received and the balance still due by the defendant and claimed in the action. The statement sets out exactly the capital, interest claimed and payments received from the defendant.

5.6     An exception cannot be used to attack the vagueness of         a contract relied upon by a party; it is only concerned with pleadings.

See: Screening & Earthworks (Pty) Ltd v Capital Outsourcing           Group (Pty) Ltd [2008] 1 All SA 611 (B)

5.7     It is respectfully submitted that a clear cause of action is set out in the particulars of claim read with the annexures thereto and the defendant clearly knows the case it has to meet.

Applicable law.

[6]     It is trite law that the excipient has to show that the particulars of      claim are excipiable on every interpretation that can reasonably be        attached to it[1]. The test is whether on all possible reading of the   alleged facts in the particulars of claim, no cause of action is made       out[2].

[7]     The phrase “cause of action” was defined as “…every fact which it would be necessary for the plaintiff to prove, if traversed, in order to       support his right to the judgment of the Court. It does not comprise   every piece of evidence which is necessary to prove each fact, but  every fact which is necessary to be proved.”[3] The term “cause of      action” is ordinarily used to describe the factual basis, the set of           material facts, that begets the plaintiff’s legal right of action[4].

[8]     Rule 18(3), (4) and (6) of the Uniform Rules provides:

“3     Every pleading shall be divided into paragraphs (including sub-paragraphs) which shall be consecutively numbered and shall, as nearly as possible, each contain a distinct averment.

4.       Every pleading shall contain a clear and concise statement of the      material facts upon which the pleader relies 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.

5.       __ __ __

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.”

[9]     In Knott v Union Government[5] the court stated:

          “The exceptions taken here are to paragraphs four and eight of the plea on the ground that they are vague, embarrassing, prolix, and argumentative, and that they do not comply with the requirements of Rules 45 and 46 of Order XI of the Rules of this Honourable Court.

          Dealing with the second branch of the exceptions, we are of the opinion that paragraphs four and eight as they stand do not comply with Rules 45 and 46; and consequently they will be struck out with leave to the defendant to amend by separating these paragraphs into averments in the shape contemplated by Rule 45 and 46. There should be no difficulty in that; and we must discountenance paragraphs in pleadings which group a number of facts together and so render the task of replying to them more difficult…

          The exceptions will be allowed to the extent I have indicated.”

[10]   Here the court was dealing with a provision[6] which was almost similar to our present Rule 18(3). In that case (Knott v Union Government), the court concluded:

          “All averments in pleadings shall be made in concise paragraphs consecutively numbered, without the form of division into several counts or pleas or the like, and without repetition of any matter already averred in the pleading. Each paragraph shall contain a distinct averment..”

[11]   The Appellate Division’s decision later in Lind v Spicer Bros (Africa) Ltd[7] was an implicit affirmation of the decision in Knott supra. The said decision (in Lind v Spicer) has not been overturned by any decision of our courts ever since.

Analysis by Court.

The first exception.

[12]   It is quite clear that paragraph 5 of the particulars of claim        contains averments which should have been pleaded in separate         paragraphs. This was not done. As the defendant correctly        pointed  out, it (para 5) contains two distinct averments. The first is a breach and the second is an averment as to the balance due. The Court finds that paragraph 5 does not comply with the criteria laid    down in Rule 18(3).

[13]   The plaintiff has submitted that the ground of exception should have been raised by way of a Rule 23(1) “vague and embarrassing” exception. It seems to me that the plaintiff overlooks an important aspect about an exception based on this ground: “vague and     embarrassing”:

“An exception that a pleading is vague and embarrassing is not       directed at a particular paragraph within a cause of action: it goes to         the     whole cause of action, which must be demonstrated to be vague and       embarrassing_ _ _”[8]

[14]   The first exception is directed against two paragraphs only, paragraph 4 and 5, and not against the whole cause of action. The plaintiff’s submission therefore is misplaced.

The second exception.

[15]   In the second exception, the excipient has directed his arsenal at    the plaintiff’s alleged failure to comply with Rule 18(4), in that     “numerous material facts that make up the sort of cause of action at    issue have not been pleaded.” These facts appear at paragraph 2.1     to 2.4 of this judgment.

[16]   The date for performance and the date of breach of contract has not        been pleaded by the plaintiff. Instead, the plaintiff made these          averments in its particulars of claim: “The defendant breached the payment terms referred to in Annexure “POC1”. This is a conclusion          of law which is not supported by facts. Courts of law have warned of the danger inherent in pleading a conclusion of law without       pleading the material facts giving rise thereto:

          “It is trite that a party has to plead – with sufficient clarity and         particularity – the material facts upon which he relied for the conclusion    of law he wishes the court to draw from those facts (Mabaso v Felix 1981       (3) SA 865 (A) at 875 A-H; Rule 18(4)). It is not sufficient, therefore to plead a conclusion of law without pleading the material facts giving rise    to it”[9]

[17]   Badfield et al[10] confirm the basic concept that there is no action in contract without a factual breach, which necessarily requires the           interpretation of the underlying agreement.

“Not every act by one party to a contract that causes loss to the        other will give rise to an action on the contract. It is necessary for the    plaintiff to allege and prove a breach of the contract, and that it was          committed by the defendant. This does not mean that the onus of proving a    breach is always on the party who alleges it. A plaintiff who sues for          payment must allege and prove performance of obligations entitling the plaintiff to payment, and no matter how positively the defendant alleges  that the plaintiff has not performed but is in breach, the onus remains on    the plaintiff to prove it has performed.

  Proof that a breach has occurred is basically a two-stage process     involving, first, the factual inquiry into what was done or omitted, which     calls for no discussion here, and second, the interpretation of the contract        in order to decide whether what was done or omitted was contrary to the      terms of the contract.”

[18]   Failing to plead the date of performance is a serious defect in the    particulars of claim because the date of performance and the date      of the breach are material facets of the standard breach of the      contract facta probanda. See McKenzie[11].

[19]   A specific date of breach is the date on which the debt becomes due       i.e. the so called mora. The plaintiff cannot rely, for this purpose, on   annexures POC1 and POC2. In other words, the plaintiff cannot      expect the defendant to extract the date of breach somewhere in the    annexures.

The third exception.

[20]   Rule 18(6) reads:

          “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.”

          The plaintiff and the defendant are business entities and in order to enter into binding agreements they must be represented by natural persons. In the particulars of claim, the plaintiff omitted to state who represented each of the parties when they entered in the agreement. In line with Rule 18 (6) this information has to be pleaded.

[21]   A pleaded enforcement of a contract must contain a pleaded offer and acceptance. The plaintiff has not pleaded that it accepted the defendant’s acknowledgement of debt as per annexure POC1. This is a mandatory requirement because without an acceptance of the offer (POC1), there is no enforceable obligation to pay based on the acknowledgement of debt. See Adams v SA Motor Industry Employers Association[12], where Jansen JA said: 

          “There is ample authority to the effect that an acknowledgment of debt, provided it is coupled with an express or implied undertaking to pay the debt, gives rise to an obligation in terms of that undertaking when it is accepted by the creditor.”

[22]   An acknowledgment of debt, such as annexure POC1 is nothing else but a unilateral offer. Kick-Cohen AJ[13] explained this as follows:

          “There is one fundamental difference between the documents so executed: while the agreement of sale makes provision for (and is signed by) both parties, the acknowledgment of debt is a unilateral document, and (as is customary) is signed by the debtor, appellant, only.”

          It was therefore imperative for the plaintiff’s pleadings to indicate whether the defendant’s creditor (the plaintiff) accepted this unilateral offer to pay (Annexure POC1).

The status of annexure POC2.

[23]   The defendant’s complaint is that annexure POC2 has been attached to the particulars of claim despite that it has not been pleaded as being relied upon as a contract. The plaintiff avers (in paragraph 6 of the particulars of claim) that annexure POC2 is a statement confirming the payments received and balance due.

[24]   The plaintiff’s Counsel put forward an oral argument with reference to Telematrix (Pty) Ltd v Advertising Standards Authority[14] and submitted that there is no rule or decision that prohibits the attachment of additional documents to a pleading (additional to rule 18 (6), which dictates that a written agreement must be attached to particulars of claim). This argument responded to the defendant’s third point of exception in terms of rule 18 (6), and specifically paragraph 3.4 of the notice of exception. Counsel referred  specifically to the words of Harms JA in Telematrix[15] supra where he reiterated:

          “The plaintiff’s particulars of claim, with annexures runs to 158 pages and contains a full exposition of the events surrounding the Directorate’s decision. In addition we were provided with the ASA’s Code of Advertising Practice and Procedural Guide and the parties, prudently, were content that regard could be had to it even though it does not form part of the pleadings. The case does not, therefore, have to be decided on bare allegations only, but on allegations that were fleshed out by means of annexures that tell a story. This assists in assessing whether or not there may be other relevant evidence that can throw light on the issue of wrongfulness.”            

[25]   Counsel for the defendant, on the other hand disagreed with his colleague as follows:

          “The plaintiff’s counsel’s line of argument (in terms of there being no prohibition against attaching additional documents to a pleading) is not supported by Telematrix for two reasons:

          25.1   Firstly, Harms JA’s excerpt merely affirmed the trite principal           (sic) that a court at exception should take cognizance of the entirety          of the pleading when deciding an exception, because the pleading         and annexures ‘tell a story’. Harms JA was not called upon to   decide and did not decide whether or not the annexing of documents   other than a written agreement to pleadings constituted a ground    for rule 23 (1) of exception.

          25.2   Secondly, it is trite that only the ratio decidendi of a higher court is binding on a lower court in terms of the stare decisis principal (sic).   The North West High Court is not bound by Telematrix in terms of         the third ground of exception because Harms JA’s utterance were      clearly stated in passing, and did not from part of the ratio           decidendi.

          25.3   To build upon the second reason, the ratio in Telematrix was that an incorrect decision arrived at during an adjudicative process could  not be unlawful in delict. For that reason the court a quo’s uphold    of the exception was approved by the SCA, leading to the dismissal of the appeal. Not only does the ratio have no bearing on non- compliance with rule 18 (6), but the facts a quo in Telematrix have   nothing in common with the facts at issue in the plaintiff’s cause of   action. Telematrix thus takes the defendant’s argument no further.

          The court should ignore the plaintiff/respondent’s oral argument in terms of Telematrix. It has no bearing on the outcome from adjudication of the third ground of exception.”

Analysis by Court.

[26]   To me, it would definitely make no sense to prohibit the attachments of other documents or annexures, apart from the written agreement     between the parties, to the particulars of claim provided that what is contained therein is pleaded. This does not mean that the whole       contents of the additional documents have to be regurgitated in the pleadings, otherwise the pleadings may end up being voluminous. Incidentally, Counsel for the respondent did not refer the Court to   paragraph 10 of the judgment in Telematrix where the Court stated:

          “Counsel for the plaintiff strenuously objected to our having regard           to       the totality of the pleadings and wished to confine the court to a   consideration of the facts alleged in the body of the particulars of         claim in isolation. His objection was ill-founded. Pleadings must be       read as a whole and in deciding an exception a court is not playing games, blindfolding itself.”

[27]   A perusal of annexure POC2 reveals that it is entitled “Contract 110 58/BH/01 Brauhaus am Damm Payment Schedule”. It consist of the following columns: Amount certified and agreed incl Vat; Balance; Actual paid; Interest; the latter is divided into two sub-columns: Prime rate +4% and Amount. The last two columns of this form are: Now due and Date. A lot of information has been printed on this form and it covers one typed A4 paper and a third (1⅓pages). 

[28]   In my view, this annexure POC2 is not unconnected to the pleadings. It is not irrelevant. For one to get a complete story which is supposed to be told by the pleadings, and POC1, one must invariably also read this annexure (POC2). Most particulars which seem to be absent from the body of pleadings appear in annexure POC2. In casu, the plaintiff has pleaded annexure POC2.

[29]   The Telematrix case was decided by the Supreme Court of Appeal. This Court will not lightly disregard the SCA decision even if the remarks were an obiter dictum and not part of a ratio decidendi. It becomes unnecessary for this Court to decide whether the remarks at page 465D-F by Harms JA were made in passing or were part of the reasons for judgment. However, the SCA concluded at para 10 “_ _ _ Pleadings must be read as a whole and in deciding an exception, a court is not playing games, blindfolding itself.”

[30]   I think the phrase “as a whole” means facts alleged in the body of pleadings plus the written agreement (if any) plus all other additional annexures which have been pleaded. It follows therefore that the defendant’s exception in as far as annexure POC2 is concerned, must fail.

Order.

[31]   Consequently, the following order is made:

1.   The defendant’s exception is upheld with costs.

2.   The relevant paragraphs of the particulars of claim (which the Court found to be excipiable) are struck out.

3.   The plaintiff is afforded an opportunity to amend the particulars of claim and deliver a notice to amend within thirty (30) days from date hereof

                            

SAMKELO GURA

JUDGE OF THE HIGH COURT

ATTORNEYS

For the Plaintiff   :                   DU PLESSIS VAN DER WESTHUIZEN INC

                                                C/o Maree & Maree

                                                11 Agaat Street

                                                MAHIKENG

                                                Tel: 018 381 7495

                                                Ref: G MAREE/YW/AAA6796                                            

For the Defendant/Excipient         :         VAN ZYL HERTENBERGER INC

                                                          C/o Smit Stanton Inc.

                                                          29 Warren Street

                                                          MAHIKENG

                                                          018 381 0180/1/2

                                                          Ref: NJ/JIG3/0001/19/rr                                             [1] Theunissen and Andre Transvaalse Lewendehawe Kooperasie Bpk 1988 (2) SA 493 (A) at 500E-F;

---