---

Republic of South Africa

IN THE HIGH COURT OF SOUTH AFRICA

(WESTERN CAPE DIVISION, CAPE TOWN)

Coram:            Le Grange J et De Waal AJ

Hearing:          22 February 2019

Judgment:       26 February 2019

Magistrates’ Court Case No:  4707/17

Appeal Case No:  A352/18

MICHELLE SHIRLEY LEE                                                                                      Applicant

vs

ICEBERG AIRCONS & COMPRESSORS CC                                                   Respondent

 

JUDGMENT

 

De Waal AJ:

[1] This is an appeal against the judgment and orders made by the Bellville Magistrates’ Court per Mr MMB Godwana.

[2] The Court a quo upheld an exception to the Appellant’s particulars of claim and then granted the following Order:

“Judgment is entered in favour of the Defendant.  The Exception is upheld with costs, the Plaintiff’s amended particulars are struck out.”

[3] The exception was taken on the grounds that the particulars are vague; that they do not disclose a cause of action; and that they do not comply with the Rules. 

[4] The Appellant contends that the Court a quo erred by upholding the exception and that even if it was correct, it should not have granted judgment in favour of the Respondent but it should have granted the Appellant leave to amend her particulars of claim.

[5] In order to assess these contentions, it is necessary to analyse the particulars of claim as well as the reasoning of the Court a quo.

The Appellant’s particulars of claim

[6] The factual allegations made in the Appellant’s particulars of claim can be summarised as follows:

6.1. On or about 2 December 2016 the Appellant bought a VW Caravelle TDI Kombi (“the vehicle”) from an entity with the name of Sports Way Auto for the amount of R110 000.00.  This was in terms of an oral agreement of sale.

6.2. Prior to the conclusion of the agreement, Sports Way Auto made Appellant aware that the vehicle had been repaired and, more specifically, that work had been carried out on the air conditioner and the compressor which forms part of it.

6.3. Appellant nevertheless bought the vehicle from Sports Way Auto and complied with its obligations under that agreement, as did Sports Way Auto. 

6.4. Appellant took ownership and possession of the vehicle by about mid-December 2016.

6.5. The Respondent carried out the repairs to the vehicle at the instance and request of Sports Way Auto in the beginning of November 2016, i.e. approximately one month before the Appellant purchased the vehicle and took possession thereof.

6.6. During January 2017 the vehicle broke down whilst Appellant was driving in the area of Jeffreys Bay, Eastern Cape.

6.7. Appellant claims that the responsible employee or employees of the Respondent fitted the incorrect air conditioner compressor to the vehicle, which resulted in a misalignment of the Multi V-belt.  This caused the belt to shred whilst Appellant was driving the vehicle, which in turn obstructed the cam belt and caused a piston collision with the intake and exhaust valves.  Ultimately, serious damage was caused to the vehicle.

6.8. Appellant claims that she suffered damages in the sum of R44 693.31 as a result of the faulty repairs.  The damages consist of accommodation costs in Jeffreys Bay; Avis car hire for the trip from Jeffreys Bay to Cape Town; the towing of the vehicle to Cape Town; and the cost of repairing the vehicle properly.

[7] Based on the above allegations, the Appellant set out two alternative claims in the particulars.

[8] The first is a delictual claim based on an alleged duty of care owed by the Respondent to the Appellant relating to the performance and standard of the services rendered in respect of the vehicle.  Appellant contends that the duty required the Respondent to perform the services in a manner and of a quality that persons are generally entitled to expect.  This duty was breached because the Respondent wrongfully and negligently failed to ensure that the correct air conditioner compressor was fitted to the vehicle.

[9] The alternative claim is based on the Consumer Protection Act 58 of 2008 (“CPA”).  In this regard, it is contended that the Respondent is a supplier of services as envisaged in s 61(2) of the CPA and that the service provided by the Respondent was less acceptable than persons generally would be reasonably entitled to expect in the circumstances, which meant that there was a defect in the services as contemplated in s 53(1)(a)(i) of the CPA.  Based on these allegations it is contended that the Respondent is liable, in terms of s 61(1) of the CPA, for any harm caused wholly or partly as a consequence of the defect in the services resulting from negligence.  The same of amount damages, i.e. R44 693.31 is sought to be recovered in terms of the alternative claim under the CPA.

The exception to the amended particulars of claim

[10] The Respondent’s notice of exception dated 28 November 2017 is based on its notice to remove certain causes of complaint, dated 3 November 2017.  The grounds of exception are that the particulars are vague and embarrassing, lack sufficient particularity to enable the Respondent to duly reply thereto and/or do not disclose a cause of action against the Respondent and do not comply with the Rules.  These grounds are based on the following allegations:

10.1. That the Appellant failed to allege facts to exclude Sports Way Auto as possible joint claimant or wrongdoer; failed to specify the grounds on which the alleged duty arose; and failed to indicate whether such duty was general or specific.

10.2. That the claim is based on a sale agreement and the existence of obligations in terms thereof but the particulars fail to specify the obligations and/or the material terms thereof.

[11] It will immediately be apparent that the exception did not relate to Appellant’s alternative claim in terms of the CPA.  It is further not clear whether the allegations relate to the vague and embarrassing exception; the cause of action exception; non-compliance with the Rules or all of the aforegoing.  This no doubt complicated the task of the Court a quo. I now turn to analyse the Judgment, handed down on 14 August 2018. 

The Magistrates’ Court’s reasons

[12] The Court a quo held that Appellant’s particulars of claim on Claim A and B state that during November 2016 Respondent’s employees carried out repairs to the vehicle at the instant or request of Sports Way Auto but no evidence was annexed to the particulars to support the allegation.  In this regard, the invoice which was annexed only indicates the date thereof and not also the date of the repairs.

[13] The Court a quo further found that although it was contended that during or around December 2016 Appellant concluded an oral agreement to purchase the vehicle from Sports Way Auto, the material terms and conditions of the sale agreement with regard to warranties were not indicated and Sports Way Auto was not a party to the proceedings.

[14] Against this background, the Court a quo found that Sports Way Auto could not be excluded as a possible “joint claimant or wrongdoer”.  It further held that the particulars lacked particularity which amounts to vagueness as Appellant has no link or connection with the Respondent that is established in the pleadings. 

[15] According to the Court a quo the Respondent would be embarrassed to plead to the particulars of claim and prejudiced as the vagueness goes to the root of the claim.  It further held that the Appellant failed to lay a basis and make out a case for the claim and that the entire pleading by the Appellant is bad in law.  In the result, the Respondent succeeded in showing that the particulars of claim are vague and embarrassing with serious prejudice to the Respondent.

[16] The order made by the Court a quo was, as already stated, that Judgment was entered in favour of the Respondent; the exception was upheld with costs; and the Plaintiff’s amended particulars of claim were struck out.

The parties’ contentions

[17] Appellant contends that the Court a quo denied the Appellant the opportunity to amend her particulars of claim and that the order is accordingly final in effect.  It is further contended that neither Claim A nor Claim B required the joining of Sports Way Auto or the pleading of the terms of the sale agreement between Appellant and Sports Way Auto or the terms of the service repair agreement between the latter and the Respondent.  In a nutshell, Appellant contends that Claim A is based in delict and Claim B is based on the CPA and that the contractual arrangements are accordingly irrelevant.

[18] The Respondent contends, with reference to the Judgment of the Supreme Court of Appeal (“SCA”) in Ocean Echo Properties 327 CC & Another v Old Mutual Life Assurance Company (SA) Ltd 2018 (3) SA 405 (SCA) at para [8], that the fact that the Court a quo did not grant Appellant leave to amend her particulars of claim did not prohibit Appellant from delivering new particulars of claim as her action was not dismissed.  The Respondent further contends that the particulars were vague and embarrassing because Sports Way Auto had to be joined and facts had to be alleged “to exclude it as a possible joint wrongdoer or claimant”.  The Respondent further contends that it is unclear what the content of the sale agreement is and furthermore, how the duty of care arose in the circumstances.

Analysis

[19] Two aspects of the Court a quo’s reasoning and orders call for comment at the outset.

[20] The first is that the Court a quo should not have ordered that Judgment is entered in favour of the Defendant.  That part of the order is not capable of any interpretation other than that the action was effectively dismissed with final effect.[1]  In this particular instance, and irrespective of whether the exception was upheld on the basis that the particulars were vague and embarrassing or failed to disclose a cause of action, leave should have been granted to Appellant to amend her pleadings within a certain period of time.  Leave to amend is not a matter of an indulgence; it is a matter of course unless there is good reason that the pleading cannot be amended.[2]  It follows that the Court a quo erred by entering Judgment against the Appellant and that this part of the order falls to be set aside.

[21] The second aspect is that the Court a quo failed to appreciate that there was no exception taken against Claim B, the claim based on the CPA.  Both claims were effectively dismissed but the Court a quo’s reasoning relates almost entirely to the delictual claim, which is the claim which was targeted by the Respondent in the exception.  The validity of that claim has to be determined with reference to the wording of the statute.  In the Court a quo’s reasoning there is, with respect, simply no engagement with the provisions of the CPA and one is accordingly left in the dark as to why this claim was considered to be invalid.  In any event, the validity of Appellant’s CPA claim was simply not before the Court a quo.  From this it follows that the Court a quo’s order falls to be set aside to the extent that the exception was upheld in respect of Claim B.

[22] In the circumstances, the only question, for this Court to consider on appeal is whether the exception against Claim A was correctly upheld.

[23] On this aspect, Appellant is correct in the sense that because Claim A is based in delict, there was no need to join Sports Way Auto, nor was there a need to plead the terms of the sale agreement of the terms of the service repair agreement.  It was also not necessary to “exclude Sports Way Auto as a potential wrongdoer or claimant”.  A plaintiff does not need to plead that nobody else has a claim against the wrongdoer nor does a plaintiff need to plead that there is no other possible wrongdoer.  The Plaintiff selects her target and it is for the Defendant to raise a break in the chain of causation or the possibility that another entity may have caused the Plaintiff to suffer the damages claimed.  It is in any event clear from the particulars that Sports Way Auto is not alleged to be a wrongdoer. 

[24] Having said that, it seems to me that the Respondent’s exception against Claim A is well founded, although not for the reasons set out in the Judgment of the Court a quo.  The reason why the exception is good is that our law in general adheres to the principle that a purchaser has no right to claim in delict from a person who damaged goods before the purchaser takes delivery thereof.[3]  In order to claim in delict, the claimant must be the owner or the risk-bearing possessor, such as the hire-purchaser.  

[25] In the present instance it is not alleged that Appellant was either the owner or a risk-bearing possessor of the vehicle when the repairs were done by the Respondent. On the contrary, it is alleged that Appellant only bought and took possession a month after the allegedly faulty repairs were done. It follows that the problem with the Appellant’s particulars in respect of Claim A is not that they are vague and embarrassing, but that they fail to disclose a cause of action because a purchaser in her position has no claim in delict against someone who damaged the goods prior to delivery.  Although the exception was not taken in these exact terms, the Respondent firmly placed into dispute whether there can be a duty of care in the circumstances of the case.  It is open to this Court to attach the correct legal label to the exception, having given counsel for the Appellant an opportunity to deal with the point. The appeal against the Court a quo’s order which upheld the exception in respect of Claim A is accordingly dismissed.

[26] It remains for me to consider the issue of costs.  Appellant achieved substantial success in the appeal and I believe that she should be awarded her party-and-party costs in the appeal.  Given that the exception was correctly upheld by the Court a quo in respect of Claim A, and that was the only claim against which the Respondent excepted, I see no reason why the costs order made by the Court a quo should be revisited.

[27] In the result, the following Orders are made:

(a) The appeal succeeds and the Orders made by the Court a quo are

(b) set aside and replaced with the following:

“(i) The exception in respect of Claim A is upheld.

(ii) The Plaintiff is given leave to amend her particulars of claim.

(iii) The Plaintiff is liable to pay the Defendant’s costs.”

(c) The Respondent is liable to pay the Appellant’s costs in the appeal.

 

 

 

________________

HJ DE WAAL AJ

Acting Judge of the High Court

Cape Town

26 February 2019

 

I concur.

 

_______________

A LE GRANGE J

Judge of the High Court

Cape Town

 26 February 2019

 

 

APPEARANCES

 

Applicants’ counsel:  Adv Blane Hansen

Applicants’ attorneys:  De Abreu & Cohen Inc.

Respondents’ counsel:  Adv RC Jansen van Vuuren

Respondents’ attorneys:  Van Breda & Herbst Inc.

---