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NOT REPORTABLE

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE, PORT ELIZABETH)

Case No: 3840/2011

In the matter between:                                                                               

Mc FOOD INVESTMENTS (PTY) LTD                                                                               Plaintiff

And

BLAJOHN PROPERTIES (PTY) LTD                                                                        Defendant

 

Coram:                       Chetty J

Date Heard:               6 February 2014

Date Delivered:        13 February 2014

Summary:                  Practice – Pleadings – Exception – Complaint that particulars of claim vague and embarrassing – Exception well founded – Exception upheld – Plaintiff granted leave to amend

JUDGMENT

Chetty, J

 

[1] In considering the validity of the complaint, it is apposite to reflect upon the object of an exception so eloquently articulated by Davis, J., as follows[1]: -

 

 

"It used, apparently, once to be thought that the object of an exception was to embarrass your opponent. That is not the true object of an exception at all. The true object of an exception is either, if possible, to settle the case, or at least part of it, in a cheap and easy fashion, or to protect oneself against an embarrassment which is so serious as to merit the costs even of an exception." In my opinion, the Court should not look at a pleading with a magnifying glass of too high power. If it does so, it will be almost bound to find flaws in most pleadings --- except formal replications, but certainly including the present exception itself. It is so very easy, especially for busy counsel, to make mistakes here or there, to say too much or too little, or to express something imperfectly. In my view, it is the duty of the Court, when an exception is taken to a pleading, first to see if there is a point of law to be decided which will dispose of the case in whole or in part. If there is not, then it must see if there is any embarrassment, which is real and such as cannot be met by the asking of particulars, as the result of the faults in pleading to which exception is taken. And, unless the excipient can satisfy the Court that there is such a point of law or such real embarrassment, then the exception should be dismissed. Otherwise we shall be in danger, as BENJAMIN, J., points out, of bringing about in our own Courts a return to the old days of the demurrers in England.”

 

 

 

 [2] The objection to the particulars of claim is circumscribed and directed solely at its formulation, which, the excipient contends, is vague and embarrassing. It was submitted on behalf of the excipient that firstly, the averments contained in the plaintiff’s particulars are contradictory, not pleaded in the alternative and consequently, patently vague and embarrassing, and secondly, that in as much as the claim for damages fails to distinguish between the time period pre and post 1 October 1999, the particulars are likewise excipiable.

 

[3] At the core of the dispute between the parties is an agreement of lease concluded between Barprop Limited, (Barprop) and Federated Timbers (Proprietary) Ltd, (Federated) during December 1995 in respect of erven 1133, 1134, 1138 and 2833 (the premises) in North End, Port Elizabeth. The relevant provision, clause 9.2.1 of the lease provided that: -

 

 

“9.2        The lessee:

 

9.2.1   undertakes at its own cost to maintain the interior and exterior of the premises in good order and repair and on termination of this lease, to return the premises to the lessor in the same good order and repair as they were in at the commencement date, fair wear and tear excepted.”

 

 

Historical Overview

 

[4] During 1996 Barprop sold the premises, including all its rights, titles and interests therein to Bruce McWilliams Investments (Pty) Ltd (McWilliams) who took transfer under deed of transfer 39277/1996. In June 1999, Federated, in writing, ceded to the defendant, all its right, title and interest under and to the lease and assigned to the defendant all its obligations in terms of the lease. I shall in due course detail the terms of the cession and assignment of lease (the cession), but to aid the narrative and identify the principal actors, I interpolate to state that on 31 July 2008 McWilliams in turn divested itself of the premises and transferred it to the plaintiff pursuant to deed of transfer T51277/2008 as a consequence of which all right, title and interest to and in respect of the lease vested in the plaintiff as lessor.

 

[5] Clause 3 of the cession, under the rubric “Cession and Assignment”, provides as follows: -

 

 

“3.1        The CEDENT hereby cedes to the CESSIONARY all the CEDENT”S right, title and interest under and to the LEASE and assigns to the CESSIONARY all its obligations thereunder (“the ASSIGNMENT”).

 

3.2         The ASSIGNMENT shall take effect on 1 October 1999 irrespective of the date of signature of this agreement (“the EFFECTIVE DATE”)

 

3.3         The CESSIONARY accepts the cession and assignment.

 

3.4         The LANDLORD consents to the assignment provided the CEDENT fulfills all of its obligations to the Landlord up to the EFFECTIVE DATE.”

 

 

[6] It is immediately apparent that the cession was tripartite, viz. between Federated, the defendant and McWilliams. In terms of clause 3.2, the date upon which the assignment took effect was 1 October 1999 and its meaning, read conjunctively with clause 3.1, is clear and unequivocal – what was assigned to the defendant was Federated’s obligations post 1 October 1999. Upon a proper construction of clause 3.4 McWilliams consented to the assignment subject to Federated fulfilling its obligations under the lease up to and including 1 October 1999. The allegation in paragraph 7.5 of the particulars of claim with, reference to clause 3.4 of the cession that: - “This clause was inserted for the sole benefit of the Landlord who expressly alternatively tacitly waived Federated Timbers (Pty) Ltd’s compliance therewith” conveniently ignores the express terms of paragraph 3 of the cession. The contention that the clause was inserted for the sole benefit of McWilliams who waived Federated’s compliance therewith by the latter is untenable.

 

[7] The non-variation provisions of the cession, clause 6, which provide: -

 

 

“6.1        These conditions shall not be altered other than in writing and signed by the parties.

 

6.2         The parties shall not be bound to any representation, undertaking or agreement unless accepted in writing by the parties.”

 

 

precludes any unilateral waiver absent the written, signed agreement of the defendant. The submission made by Mr Dyke, on the apparent authority of Laws v Rutherford[2], that “waiver is a question of fact” and a matter to be determined after the adduction of evidence is not entirely correct. What the learned judge in fact said was, “waiver is a question of fact, depending on the circumstances. It is always difficult and in this case especially difficult to establish”. As Cameron, JA, correctly pointed out in Powell N.O. and Others v van der Merwe N.O.[3] echoing Laws v Rutherford, “waiver of rights is never lightly inferred”.

 

[8] In light of the aforegoing it ill behoves the plaintiff, in the absence of full particularity, to rely upon a bald allegation of an express or tacit waiver.  The particulars of claim and the provisions of the cession are inherently contradictory and accordingly vague and embarrassing. The defendant is embarrassed by the vagueness and insufficiency of the facts relied upon. This dearth of information  renders the particulars vague and embarrassing as adverted to by Mccreath, J., in Trope v South African Reserve Bank[4] where the learned judge stated: -

 

 

“An exception to a pleading on the ground that it is vague and embarrassing involves a two-fold consideration. The first is whether the pleading lacks particularity to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced (Quinlan v MacGregor1960 (4) SA 383 (D) at 393E-H). As to whether there is prejudice, the ability of the excipient to produce an exception-proof plea is not the only, nor indeed the most important, test - see the remarks of Conradie J in Levitan v Newhaven Holiday Enterprises CC1991 (2) SA 297 (C) at 298G-H. If that were the only test, the object of pleadings to enable parties to come to trial prepared to meet each other's case and not be taken by surprise may well be defeated.

Thus it may be possible to plead to particulars of claim which can be read in any one of a number of ways by simply denying the allegations made; likewise to a pleading which leaves one guessing as to its actual meaning. Yet there can be no doubt that such a pleading is excipiable as being vague and embarrassing - see Parow Lands (Pty) Ltd v Schneider1952 (1) SA 150 (SWA) at 152F-G and the authorities there cited.

   It follows that averments in the pleading which are contradictory and  E which are not pleaded in the alternative are patently vague and embarrassing; one can but be left guessing as to the actual meaning (if any) conveyed by the pleading.”

 

 

[9] It follows from the aforegoing that the first exception must be upheld. And so too, the second. It suffices to say that the defendant cannot, as a matter of law, be liable in damages for any breach of Federated’s obligations pre the effective date of the assignment, i.e. 1 October 1999.

 

[10] In the result the following orders will issue: -

 

9.1       The exceptions are upheld with costs.

 

9.2       The plaintiff is granted leave to amend its particulars of claim within 15 days of date of this judgment to cure the deficiencies.

 

 

 

 

 

 

________________________

D. CHETTY

JUDGE OF THE HIGH COURT

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Obo the Plaintiff:                   B.C Dyke

Instructed by                          Lexicon Attorneys, Cnr Westbourne and Clevedon Roads, Central, Port Elizabeth, Ref: AL-2/0005, Tel: (041) 373 7434

 

Obo the Defendant:              O.H Ronaasen

Instructed by:                         Gregory Clark & Associates, 9 Buffelsfontein Road, Mount Pleasant, Port Elizabeth, Ref: G C Clark, Tel: (041) 367 3489

 

 

 

 

 

 

 

 

 

 

 

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