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. The test is whether on all possible reading of the 	alleged facts in the particulars of claim, no cause of action is made 	out. 
[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.” 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. 
[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 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 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 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_ _ _”

[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” 

[17] 	Badfield et al 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. 

[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, 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 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 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 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