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REPUBLIC OF SOUTH AFRICA

THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

( 1) REPORT ABLE: NO (2) OF INTEREST TO 0TH JUDGES: NO

In the matter between:

ALL OUT PROPERTY AND

COMPLEX MAINTENANCE CC

and

VOLKER HARMEN SCHEDEWAL T

AXEL BRAUMANN

JUDGMENT

SHANGISA AJ:

CASE NO: 72678/2016

Excipient

1st Respondent

2 nd Respondent

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Introduction

1 This is an exception in terms of which the excipient contends that

the particulars of claim of the first and second respondents in the

main action are vague and embarrassing.

2 The first and second respondents are the first and second plaintiffs

in the main action in which the excipient is the defendant. On 15

September 2016, in the main action, the first and second

respondents issued summons against the excipient.

3 For convenience, I refer to the parties in the main action as they are

cited in the present exception, as the excipient and the respondents,

respectively.

4 Upon receipt of the aforementioned summons, on 28 October 2016,

the excipient responded by filing an exception to the particulars of

claim.

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5 Before dealing with the exception, I deem it necessary to refer to

the respondents' claim as set out in their particulars of claim in the

main action.

Background Facts

6 The first and second respondents are the owners of certain

immovable properties that are respectively situated at Clubview and

Cedar Avenue, in Centurion. I will refer to the aforementioned

properties as the "first respondent's property", and the "second

respondent's property", respectively.

7 In their particulars of claim the first and second respondents allege

that during July 2015, and at or near Centurion , the respondents

represented by second respondent and their agents entered into a

partly written , and partly oral agreement with the excipient

represented by its agent, one Rui Vicent. In the main, the aforesaid

agreement concerned renovations to be effected on the

respondents' properties.

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8 The respondents further allege in their particulars of claim that the

scope of the work to be done and quoted for was listed in the quotes

and annexed to the summons. The total quoted for amounted to

R497 951, 00. The respondents further allege that they made

various payments to the excipient during the renovation process.

The payments are alleged to have been made at the instance of the

excipient and were meant as deposit payments. I should perhaps

mention that it is common cause that payments of the said sum of

R497 951 , 00 were made in six separate payments between 1

September 2015 and 8 January 2016.

9 The respondents aver that it was a tacit or, alternatively, an implied

term of the agreement that the work would be done in a proper and

workmanlike fashion. However, the first and second respondents

allege that the excipient started with the work as agreed, but failed

to complete the work. The respondents allege that some of the work

done by the excipient was of poor and substandard quality.

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10 The respondents further allege that the excipient only managed to

complete the work which only amounted to the reasonable value of

R131 855,78 in respect of their properties. In that regard , the

respondents allege that, at a meeting between the parties who were

represented by J Coates and M Jensen, the excipient, through its

representative, made an oral undertaking to complete the work

outstanding work by the end of February 2016.

11 On 30 April 2016 the second respondent cancelled the agreement

owing to the excipient's failure to complete the outstanding work.

The cancellation was made orally.

12 The respondents' contention is that although they paid the excipient

an amount of R494 955,00, it only managed to complete the work

that was valued at R131 955.00. They accordingly allege that the

excipient received an overpayment of R363 099,22. The latter, so

the argument goes, is an amount that represents the outstanding

work that was never done. The respondents accordingly aver that

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they are entitled to the repayment of the said R363 955, 00 from the

excipient.

13 In their summons, the respondents further allege that the work

effected by the excipient was of such poor quality that it required to

be redone and that they had to spend a reasonable amount of R31

214,00. The respondents consequently claim repayment of the

amount of R363 955, 00 and R31 214,00.

Merits of the Exception

14 The excipient filed an exception to the summons. The grounds upon

which the exception is based are summarized as follows:

14.1 That the respondents failed to attach the written portion of

the agreement.

14.2 That the respondents failed to plead the terms of the

agreement.

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14.3 That the respondents failed to indicate whether the

agreement was oral or in writing.

14.4 That the respondents failed to indicate which of the

respondents paid the amounts referred to in paragraphs

7.4 of the particulars of claim.

14.5 That the respondents failed to state for which quotations

the respondents paid the amounts to the excipient as

referred to in paragraph 7.4 of the particulars of claim.

15 The second ground of exception entailed the following:

15.1 The respondents failed to indicate what work was

completed and what work was not completed.

16 The third ground of exception is set out as follows:

16.1 The respondents failed to indicate what portion of the

amount of R363 009.22 is due to the first respondent for

his property and what portion is due to the second

respondent for his property.

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16.2 The excipient contends that the claims against it should be

separated, i.e. each respondent should have a separate

claim in respect of their two different immovable properties.

17 The fourth ground of exception:

17.1 The respondents have conflated two separate claims into

one.

18 The fifth ground of exception:

18.1 The respondents failed to indicate when and how the

demand was made.

18.2 The respondents failed to indicate what the prescribed rate

was.

19 The exception is opposed by the first and second respondents . I

proceed to deal with the legal position in so far as it relates to the

merits of the present exception . An exception may be raised where

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the pleading is vague and embarrassing or lacks elements which

are necessary to sustain an action.

20 A summons will be vague and embarrassing if it is not clear what

the contract is on which the plaintiff relies or whether he or she sues

on written contract or oral contract. That is also the case where the

plaintiff sues on more than one claim but fails to set out each claim

and relief sought separately. (See Herbst v Smit 1929 TPO 306)

21 It is trite that pleadings can be both vague and embarrassing and

constitute an irregular step. In ABSA Bank v Boksburg Transitional

Local Council 1997 (2) SA 415 (W) at 41 SE-H the court found that

where pleadings fail to comply with the provisions of Rule 18 and

are vague and embarrassing the defendant has a choice of

remedies. He may bring an application in terms of Rule 30 to have

the pleadings set aside as an irregular step or raise an exception in

terms of rule 23.

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22 The material distinction between rule 23 and rule 30 has thus been

described as follows:

"an exception that a pleading is vague and embarrassing can only be

taken when the vagueness and embarrassment strikes at the root of the

of the cause of action as pleaded. Whereas rule 30 may be invoked to

strike out the claim pleaded when individual averments do not contain

sufficient particularity. It is not necessary that the failure to plead material

facts goes to the root of the cause of action."

23 In Jowell v Bramwell-Jones and others 1998 (1) SA 836 (W), it was

held that the court should:

" . . .first ask whether the exception goes to the heart of the claim and,

if so, whether it is vague and embarrassing to the extent that the

defendant does not know the claim he has to meet ... "

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24 In Living Hands (Pty) Ltd and Another v Ditz and Others 2013 (2)

SA 368 (GSJ) Makgoka J enunciated the basic principles governing

an exception as follows:

"(a) In considering an exception that a pleading does not sustain a

cause of action, the court will accept, as true, the a/legations pleaded

by the plaintiff to assess whether they disclose a cause of action.

{b) The object of an exception is not to embarrass one's opponent or

to take advantage of a technical flaw, but to dispose of the case or a

portion thereof in an expeditious manner, or to protect oneself

against an embarrassment which is so serious as to merit the costs.

(c) The purpose of an exception is to raise a substantive question of

law which may have the effect of settling the dispute between the

parties.

(d) An excipient who alleges that a summons does not disclose a

cause of action must establish that, upon any construction of the

particulars of claim, no cause of action is disclosed.

(e) An over-technical approach · should be avoided because it

destroys the usefulness of the exception procedure, which is to weed

out cases without legal merit.

(f) Pleadings must be read as a whole and an exception cannot be

taken to a paragraph or a part of a pleading that is not self-contained.

(g) Minor blemishes and unradical embarrassments caused by a

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pleading can and should be cured by further particulars."

25 In the present matter the respondents sue on a partly oral and partly

written agreement. The written portion is constituted by four written

quotations that are annexed to the summons as annexures A, B, C

and D. Later in this judgment I return to deal with the excipient's

contention that the summons it received did not contain any such

annexures. In the same breath, the particulars of claim contains

averments which alleged that the oral portion was to be the tacit or,

alternatively, an implied term that the work would be done in a

workmanlike fashion .

26 In particular, paragraph 8.4 of the particulars of claim contain the

respondents' averment that the representative of the excipient

undertook, on behalf of the excipient, to complete the work by the

end of February 2016. The excipient's and the respondents'

representative who were party to the partly oral agreement were

named in the particulars of claim. At paragraph 6 of the particulars

of claim, it is averred that the excipient was at all material times was

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represented by its authorised agent named as Rui Vicent. On the

other hand, the names of the respondents' representatives are set

out in the particulars as being those of J Cloates and M Jensen.

27 What is more, it is worth mentioning that, contrary to the excipient's

allegations contained in its exception, the respondents annexed

written quotes which set out and listed the scope of work to be done

and quoted for. In that regard, the respondents attached four

annexures to their summons which purport to set out the terms of

the partly written contract.

28 In light of the above, the respondents consequently contend that ex

facie the summons the terms of the agreement are clearly spelt out.

29 It is trite that it is for the excipient to persuade the court that upon

every interpretation of the pleading in issue bears no cause of

action. The excipient is also required to show that on any

construction that the claim is excipiable. The general principle is that

even if the pleading is vague and embarrassing, the exception will

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fail unless the excipient shows that it will suffer substantial prejudice

if it were compelled to plead in light of the defective cause of action.

30 The test applicable to determine whether a pleading is vague and

embarrassing requires that in each case the court is obliged to

consider whether the pleading does lack particularity to an extent

amounting to vagueness. Where a statement is vague it is either

meaningless or incapable of more than one meaning. The reader is

unable to distill a clear meaning from the statement. (See Erasmus,

Superior Court Practice 81-8154A) .

31 In each case an ad hoc ruling must be made as to whether the

embarrassment is so serious as to cause such embarrassment as

the excipient can show is caused to him/her by the alleged

vagueness.

32 The ultimate test is any prejudice caused to the excipient. Of

significance, is the fact that the court will not decide by way of

exception the validity of an agreement relied upon or whether a

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purported contract may be void for vagueness. (See Erasmus

(supra) at B1-154).

33 The test for determining whether a pleading is vague and

embarrassing is whether on the face value of the pleadings a party

is unable to answer to such pleadings.

34 In the present matter, for reasons that follow below, if one has

regard to the summons in the main action, the averments advanced

by the excipient have no merit. It seems to me that the particulars

of claim set out clearly and without any ambiguity the basis of the

respondents' claim. In that regard, the particulars of claim appear to

accord with the provisions of rule 18(6) of the Uniform Rules of

Court. Properly construed, the particulars of claim unequivocally

and clearly set out that the respondents' claim rests on a contract.

35 The respondents made necessary averments which set out clearly

that the nature of such a contract was partly oral and partly written.

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In both respects, the material facts upon which the respondents rely

are properly pleaded. To illustrate the latter point, the respondents

annexed the written quotes which form the basis of the written

agreement.

36 In the same vein, the respondents also set out the material facts

which support their contention of the oral part of the agreement. I

have already mentioned that the respondents also mentioned the

names of the parties' representatives who negotiated the terms of

the contract. The respondents also annexed the portions that form

part of the written agreement.

37 That is not all. The particulars of claim also set out the distinct

causes of action for the first and second respondent's respective

properties. In that regard, paragraph 7.1 of the particulars of claim

contains a written quote which is labeled as "Cedar 5" and relates

to the claim and the amount of work to be undertaken in respect of

the first respondent's immovable property. In my view, paragraph 7

of the particulars of claim contains allegations which clearly set out

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which portions of the claim relate to the first respondent and which

portions of the claim relate to the second respondent.

38 In the same vein, paragraph 7.2 of the particulars of claim contains

a quote which is labelled as "Cedar 7" and relates to claim and the

monetary value of work to be undertaken in respect of the second

respondent's immovable property.

39 The averments in the particulars of claim also set out which work

the excipient is alleged to have completed and which one he is

alleged to have failed to complete. All such allegations are set out

with particularity in paragraph 8 of the particulars of claim.

40 As I indicated earlier, the excipient argued that the copy of the

summons it received did not have the annexures A, B, C, and D as

mentioned in the particulars of claim. On behalf of the respondents,

it was argued by their counsel that to the best of the respondents'

knowledge , the copy of summons that was served had the

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aforementioned annexures. In any event, the respondents' counsel

offered to give the excipient's counsel copies of the missing

annexures. However, that offer was rejected by the excipient.

41 In my view, it is clear that the fact that the time of service of the

summons, there was an administrative oversight or omission as

contended by the respondents' counsel, which resulted in the

excipient receiving a copy that did not have the annexures. That

much is clear if one takes into account the fact that the particulars

of claim ex facie contained averments which referred to the attached

annexures which formed part of the written contract. I do not think it

would be fair to allow the excipient to rely on such an administrative

error.

42 Counsel for the respondents indicated that the respondents

attempted to offer the excipient the annexures to the particulars of

claim, however the excipient turned down that offer. Even in light of

the references in the particulars of claim to the annexures, the

excipient persisted with its argument that no written contract was

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annexed. The excipient also relied on the respondents' failure to

send a letter of demand. I do not agree. As counsel for the

respondents correctly pointed out, unless demand is a precedent to

the issue of summons, the fact that no demand was made cannot

avail the excipient. In my view, the stance of the excipient is

unreasonable and demonstrates unnecessary, rigid formalism.

43 Upon a proper construction of the particulars of claim and its

annexures as a whole, it is clear that the nub of the respondents '

claim is that the excipient was paid an amount of R494 955,00 in

terms of the partly oral and partly written agreement as set out in

the written quotes that were annexed to the particulars of claim.

However, the excipient is alleged to have faile~ to complete the

work in respect of both the first and second respondent's immovable

properties as set out in the aforementioned written quotes, but only

completed work valued at R131 955,00. Consequently the excipient

is alleged to have received an overpayment of R363 099,22. The

latter amount represents the amount of work that was either not

completed or not done.

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Conclusion

44 In my view, the technical objections raised by the excipient have no

merit. The excipient has also failed to demonstrate that should it be

required to plead to the particulars of claim as they stand, it will

suffer substantial prejudice. I might add that upon a consideration

of the particulars of claim as a whole and the facts of this matter, I

can conceive of no prejudice to the excipient. Upholding the

grounds of the exception in this matter will be a glaring instance of

promoting undue formalism in pleadings.

45 It seems to me that, if one pays proper regard to the facts of this

matter and the particulars of claim, the first and second respondents

set out the basis of their claims that the excipient is called upon to

meet.

46 Moreover, it follows in my view that the particulars of claim in this

matter set out the material facts upon which the first and second

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respondents relied, and that consequently the exception has to fail

owing to its lack of merit. In any event, as set out above, I disagree

that the particulars of claim are vague and embarrassing. As amply

illustrated by reference to specific paragraphs of the particulars of

claim, the exception must consequently fail.

Order

47 In the result I make the following order:

1. The exception is dismissed.

2. The excipient is ordered to pay the first and second respondents'

costs.

Acting Judge of the High Court,

Gauteng Division, Pretoria

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DATE OF JUDGMENT: April 2018

APPEARANCES:

COUNSEL FOR THE EXCIPIENT: Adv. R. ANDREWS

INSTRUCTED BY: SIMPSON INCORPORATED

COUNSEL FOR THE 151 and 2nd RESPONDENTS: Adv. J HOLLAND-MUTER

INSTRUCTED BY: FUCHS ROUX ATIORNEYS