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HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

CASE NUMBER: 56544/13

DATE: 26 June 2017

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

REVISED

MICS EMPOWERMENT GROUP CC                                                                       Plaintiff

V

THE VHEMBE DISTRICT MUNICIPALITY                                                  First Defendant

THE MEC FOR THE NATIONAL DEPARTMENT                                  Second Defendant

OF WATER AFFAIRS

 

JUDGMENT

MABUSE J:

[1] This is an application for amendment. The plaintiff gave notice by an unsigned and undated notice of motion of its intention to apply on 8 October 2015 at 10:00 for leave to amend its declaration. The new declaration was attached to the plaintiff's founding affidavit as Annexure 'EE8'. It was served on the first defendant's attorney on 19 August 2015. It is opposed only by the first defendant. This being an interlocutory application, I will refer to the parties as they cited themselves in the main action.

[2] The plaintiff in this matter, Mics Empowerment Group CC, is a close corporation with registration number 2007/100207/23 duly incorporated in terms of the Close Corporations Act 69 of 1984 of this country read with the Companies Act 71 of 2008 with its registered address at corner Bergius and Erasmus Streets, Secunda, Mpumalanga Province. The first defendant, Vhembe Distict Municipality ("VDM"), is a local municipality or authority established as such in terms of the Local Government Municipal Structures Act 117 of 1998 with its physical address situated at Government Complex, Ring Road, Thohoyandou, Limpopo Province. The second defendant is the MEC of the Executive Council, Department of Water Affairs cited in this matter in his or her official capacity as the person responsible for claims instituted against the relevant organ of state, situated at 157 Schoeman Street, Pretoria, Gauteng.

[3] As indicated supra the plaintiff applies for leave to amend its declaration.

[4] This matter has a long and chequered history. The brief background to the matter is as follows. On 11 September 2013, the plaintiff issued simple summons against the first defendant for payment of a sum of R1,508,531.33, allegedly being the balance due and owing by the first defendant to the plaintiff in respect of goods sold and delivered and services rendered by the plaintiff to the first defendant in terms of an agreement. These goods were delivered and the service was rendered by the plaintiff to the first defendant at the instance and special request of the second defendant. For purposes of brevity the first defendant will simply be referred to as "VDM". Over and above, the plaintiff claimed interest on the said amount of R1 ,508,531.33.

[5] After it had been served with a copy of the simple summons, VDM delivered its notice of intention to defend on 11 October 2013 whereupon the plaintiff delivered its declaration to it in July 2014.

[6] Disgruntled by the manner in which the plaintiff had set out its claim in the declaration, VDM delivered a notice in terms of Rule 23(1) of the Uniform Rules of Court. Rule 23(1) provides that:

"23(1) Where any pleading is vague and embarrassing or lacks averments which are necessary to sustain an action or defence, as they case may be, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may set it down for hearing in terms of paragraph (f) of sub-rule (5) of rule (6): Provided that where a party intends to take an exception that a pleading is vague and embarrassing he shall within the period allowed as aforesaid by notice afford his opponent an opportunity of removing the cause of complaint within 15 days: Provided further that the party excepting shall within ten days from the date on which a reply to such notice received or from date on which such reply is due, deliver its exception. "

The target of VDM's rule 23(1) notice were paragraphs 3 to 18 of the plaintiff's declaration. This rule 23(1) notice was delivered on 20 November 2014. Quite clearly, the objection against the plaintiff's declaration was that it was either, vague and embarrassing; alternatively that it did not sustain any cause of action and therefore excipiable.

[7] One of the problems that VDM had with the plaintiff's declaration was that it was vague and embarrassing. In terms of Rule 23(1) where the intention is to raise an exception by reason of the fact that the summons is vague and embarrassing, the party so taking an exception "shall within the period allowed as aforesaid by a notice afford his opponent an opportunity of removing the cause of complaint within 15 days'. This means that there was an obligation on VDM to point out to the plaintiff that the summons was vague and embarrassing, to point out the respects in which it was vague and embarrassing, and having done so, to afford the plaintiff an opportunity to remove VDM's cause of complaint. VDM would then deliver its notice of exception within a further period of 10 days after the expiry of the period within which the plaintiff was required to remove the cause of concern. I have gone through the file placed before me. I could not find a notice in which the plaintiff was afforded or which stated that the plaintiff was afforded a certain period to address VDM's concerns about the summons. Nothing turns on this though.

[8] In the documents before me, there is in the bundle of notices among them a copy of the notice in terms of rule 23(1). This copy of the rule 23(1) was signed by VDM's attorneys on 6 August 2014. However no proof exists that it was served on the plaintiff.

[9] On 20 November 2014, a copy of the notice of exception which incorporated the contents of VDM's notice in terms of Rule 23(1) was served on the plaintiff after which the original was filed with the registrar of this Court on 21 November 2014. Still the targets of the exception were paragraphs 3 to 18 of the declaration. This notice of exception stated, among others, that:

''Kindly take notice that the defendant has allowed the plaintiff an opportunity to remove the causes of complaint, which it has failed to do. "

I have pointed out already that among the documents placed before me I found no document in which VDM expressly stated that the plaintiff was afforded an opportunity to remove VDM's cause of complaints.

[10] The notice of exception prompted the plaintiff to take the necessary steps. On 7 April 2015 the plaintiff delivered a notice in terms of rule 28(1) indicating its intention to amend its declaration that it delivered on 18 July 2014 by substituting it with a new version of the declaration attached to its notice in terms of rule 28(1).

[11] On 11 April 2015 VDM delivered a notice of objection against the contemplated amendment to the plaintiff. One of the grounds of objection was that the Department of Water Affairs was not a party to the action and seemingly should have been joined. The plaintiff brought the necessary application to join the Department of Water Affairs.

[12] On 11 June 2015 VDM's exception was heard by Louw AA (J). He upheld the exception and granted the plaintiff leave to amend its declaration within 15 days of joining the Department of Water Affairs. Accordingly, the plaintiff was by the order of Louw AA J granted leave to amend its declaration provided that that was done according to the terms of the order. On 1 July 2015 the MEC for National Department of Water Affairs was joined as the second defendant in the action. The citation of the second defendant is somewhat confusing since there can never be an MEC in the National Department of Water Affairs. This should have been clarified.

[13] On 22 July 2015 the plaintiff served on VDM and the second defendant a notice of intention to amend in terms of Rule 28(1) of the Uniform Rules of Court. Same was filed with the registrar of this Court on 23 July 2015. Attached to this notice in terms of Rule 28(1) was a copy of the amended declaration. The plaintiff gave notice of his intention to amend its existing declaration in accordance with the new declaration by completely substituting the then declaration with the new one which was attached to its notice of motion as Annexure 'EE8'.

[14] Then on 19 August 2015 the plaintiff served on VDM's attorneys an application for leave to amend its declaration in accordance with its notice of intention to amend, in other words, Rule 28 annexed to the affidavit and marked Annexure 'EE8'. On 5 October 2015 VDM served a copy of its objection to the contemplated amendment.

[15] Basically there are two grounds on the basis of which VDM objected to and opposed the plaintiff's contemplated amendment. These are that firstly the contemplated amendment is vague and embarrassing and secondly, which is fatal, that it lacks averments which are necessary to sustain an action, and therefore excipiable, in particular, against VDM. To set the scene, I would proceed to set out the plaintiff's allegations as contained in the declaration. I will only set out the relevant paragraphs objected to. VDM finds the following paragraphs to be repugnant:

5. On or about 1 December 2011 the Second Defendant approved and awarded a bid/tender number W0031-WTE in favour of the Plaintiff (the bid/tender). The Second Defendant's letter of appointment dated 1 December 2011, appointing the Plaintiff as the successful bidder/tenderer in respect of the bid/tender is annexed marked 'A : which consists of two parts, and is titled "Part1"and "Part 2" ("the letter of appointment").

6. The awarding of the bid/tender by the Second Defendant to the Plaintiff, which was accepted by the Plaintiff, commenced a written Agreement between the Second Defendant and the Plaintiff (''the Agreement").

7. When the Agreement was concluded the Plaintiff was represented by Mr. JL Griessel, and the Second Defendant was represented by M W Muthathi, alternatively S Gaba, further alternatively its duly authorised representative.

8. The salient express, alternatively tacit, further alternatively implied terms of the Agreement were as follows:

8.1 “The Plaintiff would render repair services to the First Defendant's equipment, and supply materials and/or equipment for the services thereof at the Second Defendant's special instance, for the period of 1 December 2011 to 1 December 2014;

8.2  the following documents will be deemed to form part and be read and construed as part of the Agreement (its terms and conditions to be incorporated herein by specific reference);

8.2.1 The bidding documents. Copies of these documents are annexed hereto marked 'X1’;

8.2.2 The Government Procurement General Conditions of Contract ("Revised Addition, · 2 May 2004") ("GCC "). Copies of these documents are annexed hereto marked 'X2’;

8.3  The Plaintiff will charge the rates agreed, and as quoted in the bidding documents above, between the Second Defendant and the Plaintiff.

8.4  The Plaintiff will issue and submit invoices to the First Defendant at the instance and/or as directed by the Second Defendant.

8.5  The Second Defendant will make payment to the Plaintiff, alternatively the Second Defendant appointed the First Defendant as its paymaster to effect and administer the payments.

8.6 Payment had to be effected, paid and/or settled within 30 (thirty) days from the date of issuing of the notice by the plaintiff."

[16] VDM objected to the proposed amended declaration on the basis that it is vague and embarrassing. In the alternative VDM pleads that the proposed amended declaration does not disclose a cause of action against it and is excipiable. It is contended on its behalf that VDM is entitled to object to this latest attempt to amend the declaration, as VDM is prejudiced by the plaintiff's continuous attempt to draw VDM into litigation despite the Plaintiff having failed make any case against VDM at all. The prejudice lies in the fact that VDM cannot be forced to trial while the plaintiff does not have a case and is still unable to set out a proper case against it in its proposed amended declaration. The plaintiff is trying with all its might to shape its case by constant reliance on new versions of the declarations in its attempts to make out a case that VDM is allegedly liable to it.

[17] Before I turn to the grounds of objection it is however necessary to restate the applicable principles in the application such as the instant one. The onus is on the respondent to establish the objections it has raised. See in this regard Levitan v New Haven Holiday Enterprises CC 1991 (2) SA 297 C at page 298 A ("Levitan") which dealt with an exception. The principle applicable to the ground of objection raised on the exception applies in equal measures to the grounds of objection raised by VDM. In granting an amendment, the Court grants an indulgence. It exercises a discretion by leaning in favour of the applicant to ensure that justice between man and man prevails. In the aforementioned authority the court, per Conradie J, as he then was, had the following to say at 298A-C:

“It has been stated, clearly and often, that an exception that a pleading is vague or embarrassing ought not to be allowed unless the excipient would be seriously prejudiced, if the offending allegations were not expunged.”

In this Division the practice was stated by Benjamin J in Colonial Industries Ltd v Provincial Insurance Co Limited 1920 CPD 627at 630 when he said that:

' ... save in the instance where an exception is taken for the purpose of raising a substantive question of law which may have the effect of settling the dispute between the parties, an excipient should make out a very clear strong case before he should be allowed to succeed. This approach was approved in Kahn v Stuart and Others 1942 CPD 386 at 389 which was in turn followed in Lobo Properties (Pty) Ltd v Express lift Co (SA) (Pty) Ltd 1961 (1) SA 704 C at 711 F-H.

An excipient must satisfy the Court that he will be substantially embarrassed, in other words, prejudiced if the offending pleading is allowed to stand. "

[18] The general approach of the courts in this country has always been to allow amendments where this could be done without causing prejudice to the other party. In Moolman v Estate Moolman and Another 1 927 CPD 27 Watermeyer J, as he then was, reflected this widely held view when he remarked that:

"The practical rule adopted seems to be that amendments will always be allowed unless the application to amend is ma/a tide or unless such amendment would cause an injustice to the other side which cannot be compensated by costs, or in other words unless the parties cannot be put back for the purposes of justice in the same position as they were when the pleading which is sought to be amended is fine."

In this Division which, at the time called the Transvaal Provincial Division, Wessels J adopted the same approach in the case of MacDuff and Co (in liquidation) v Johannesburg Consolidated Investment Co Ltd 1 923 TPD 309 when he stated as follows:

'My practice has always been to give you leave to amend unless I have been satisfied that the party applying was acting mala tide, so that by his blunder he had done some injury to his opponent which could not be compensated for by costs or otherwise."

And he continued as follows at paragraph 310:

"However a neglectful or careless may have been the first commission and however late the proposed amendment, the amendment should be allowed if it can be made without injustice to the other side; there is no injustice if the other side can be compensated by costs."

[19] A litigant must plead its case specifically so that the other party knows the case it has to make. The court may not come to the assistance of the litigant like in the present case if the plaintiff has not done so. I am mindful of the fact that even with the manner in which the plaintiff has pleaded its case, VDM is not thereby prevented from pleading, which is quite simple. VDM may simply deny the allegations put forth against it by the plaintiff, but that is not where the prejudice lies. The only possible response to an embarrassing declaration will be an embarrassing plea. Secondly, VDM's problem would sooner be the inability to foresee how the plaintiff will conduct its litigation at the trial and what it should do to meet such litigation. Prejudice to a litigant faced with an embarrassing pleading that lacks the necessary averments to sustain an action lies in the ability properly to prepare its case in order to meet the plaintiff's case.

[20] Finally if the new declaration is allowed, VDM will be prejudiced because it will be unable to plead specifically to the plaintiff’s declaration. See in this regard International Tobacco Co Ltd v Wolliem and Others 1 953 (2) SA 603 (A) at 613 B-C which was followed by Lockhat and Others v Minister of Interior 1 960 (3) SA 765 (D) at 777 A-E. Secondly, VDM will be prejudiced because it will not have the ability to properly prepare its case in order to meet the plaintiff’s case. VDM will be unnecessarily dragged into Court in circumstances where it does not know the case against it.

[21] In Levitan the court had the following to say at p. 299A-C:

"So, even if it might be possible to draft an unobjectionable plea to an objectionable declaration, this might lead nowhere because the pleadings, read together, must contain the outlines of a friable case. It is the resolution of the parties' dispute that matters. If the effect of the plea is that no intelligible dispute remains there is nothing on which the court can sensibly adjudicate. If a defendant pleads to a plaintiffs particulars of claim in such a way that the remaining disputed facts no longer sustain the plaintiff's claim, there is something seriously wrong with the particulars of claim. This creates embarrassment for the defendant who is now obliged to proceed to trial on a claim which he knows to be bad in law, but to which he cannot except as disclosing no cause of action. "

[22] The bases of VDM's objection to the contemplated amendment are that the plaintiff's version is that a tender was awarded by the second defendant to the plaintiff and that the said tender consists of two parts, namely Part 1 and Part 2 which were annexed to the particulars of claim as Annexure 'A', in the alternative that VDM would be thepaymaster to make all payments in regard to the aforesaid tender. From the written documents annexed to the plaintiffs particulars of claim it does not appear that the second defendant appointed VDM as paymaster to effect and administer the payments. The contention of VDM is that the plaintiff failed to explain what the concept of "paymaster'' means in the contractual sense and who exactly the parties to such a payment agreement are. The contemplated declaration fails to set out whether there was a tripartite agreement between the plaintiff, the second defendant and VDM that VDM would be the paymaster; secondly, and if that is so, whether the plaintiff, VDM and the second defendant agreed to such an agreement in writing or orally and, if so, when and where it was concluded and who represented the parties and what the terms thereof were; in the alternative, whether there was an agreement between the plaintiff and the second defendant that VDM would act as a paymaster in which event the consequence is that is not a party to such an agreement and is not bound by it; alternatively, whether there was an agreement between the second defendant and VDM in terms whereof the latter was appointed as paymaster by the former. If so, the plaintiff failed to state in the new declaration whether such an agreement between the second defendant and VDM was in writing or orally and when and where it was concluded, who represented the parties and what the terms and consent thereof were; in the further alternative, what authority the second defendant had in law to appoint VDM as the paymaster and when and where and by whom it was so executed and whether orally or in writing.

[23] It is quite clear that the plaintiff pleads a written agreement which was entered into between the plaintiff and the second defendant. The feet of clay in the plaintiff's allegation is that the plaintiff does not plead that VDM was a party to such an agreement. Failing such an allegation that VDM was a party thereto, VDM is simply not bound and will not be bound, no matter the allegations by such an agreement, and accordingly paragraphs 5 to 7 of the contemplated declaration as set out above lack averments necessary to sustain a cause of action against VDM.

[24] The objection against the contemplated amendment goes further. It is stated by VDM that insofar as the plaintiff relies on an agreement that VDM would be the paymaster, it is contrary to the contents of the written documents upon which the plaintiff relies as no such tacit and/or implied terms can exist insofar as the contents thereof would be contrary to the express terms of the written agreements upon which the plaintiff relies. Whether the paymaster agreement is between the plaintiff, VDM and the second defendant being a tripartite agreement or between the plaintiff and the second defendant or between VDM and the second defendant same is contrary to the provisions of the Local Government Municipal Finance Management Act 56 of 2003 ("the MFMA"), the Preferential Procurement Policy Framework Act 50 of 2000 ("PPPFA"), the applicable supply management policy ("the SMP of VDM and/or the regulations promulgated in terms of the said legislation which all include the requirement that such agreement has to be in writing and the terms and conditions thereof properly set out therein. The plaintiff has not produced such an agreement.

[25] It was argued by Mr. Strydom SC, counsel for VDM firstly that despite the fact that the first defendant is not a party to the written agreement as pleaded the plaintiff takes a leap in paragraph 8 by stating the alleged terms as set out above and furthermore that, with reference to paragraph 8.1 of the declaration as set out above one will firstly, have to consider whether there is room for an express, alternatively tacit, further alternatively implied term that the plaintiff would render repair services to VDM's equipment and supply material and/or equipment for the service thereof. According to him there cannot be express, alternatively tacit, further alternatively implied terms as same would be contrary to the express terms referred to in the written agreement entered into between the plaintiff and the second defendant, being Annexures 'X1' and 'X2' respectively. Insofar as the plaintiff fails to allege that VDM was a party to the written agreements, the remaining question therefore is whether it is at all possible that the plaintiff and the second defendant can ever enter into an agreement that the plaintiff render services in respect of VDM's equipment without VDM's consent or agreement. According to Mr. Strydom there are only two possibilities that would allow such an agreement and those are, firstly, an agreement entered into between the plaintiff and the second defendant for the benefit of VDM as a third party, which in law is called stipilatio alteri or, secondly, a delegation, if VDM agreed to take over the second defendant's rights and obligations which agreement needs to be a tripartite agreement. It was contended again that there is no allegation in the contemplated or new declaration that VDM agreed to such arrangements by either accepting the benefit or agreeing to the delegation.

[26] Mr. de Beer. counsel for the plaintiff, submitted that the plaintiff duly complied with the requirements of Rule 18 insofar as it related to pleading and agreement and material terms thereof, in particular. Rule 1 8(7) which stipulates that:

"It shall not be necessary in any pleading to stay the circumstances from which an implied term can be inferred.”

This argument lacks merit for the simple reason that it is as clear as crystal from the contemplated declaration that VDM was no party to the agreement on the basis of which the claim is brought. Furthermore, there is no agreement entered into between the plaintiff and the second defendant for the benefit for VDM as a third party. Finally, there is no delegation in terms of which VDM agreed to take over the second defendant's rights and obligations which agreement needs to be a tripartite agreement. Mr de Beer argued furthermore that the plaintiff cannot plead to positive facts which it did not have knowledge of. Its case in the first alternative claim was that it was instructed to invoice VDM. The reasons for such instructions are, according to Mr. de Beer, unknown to the plaintiff. It is for that reason that the plaintiff is unable to plead delegation or any other agreement for that matter.

[27] With reference to paragraphs 8.3 and 8.4 of the plaintiffs declaration as set out above, Mr. Strydom argued that there is no agreement pleaded between the plaintiff, VDM, and the second defendant, alternatively the plaintiff and VDM, alternatively the second defendant and VDM that VDM has agreed to the said tariffs and that invoices could be submitted to it for payment. Without such allegation the plaintiff has no case against VDM at all as VDM is not even a party to such an agreement. Accordingly, if VDM is not a party to the agreement as alleged by the plaintiff, any such invoices containing the rate agreed between the plaintiff and the second defendant do not affect VDM nor is VDM bound thereby. Mr de Beer submitted that VDM did not have a proper consideration of the proposed amended declaration as it is specially pleaded in the aforementioned paragraph that invoices may be submitted to VDM. That may be so but on that basis only the plaintiff does not have any cause of action against VDM.

[28] The objection was raised by VDM that the plaintiff then relies upon a FIRST ALTERNATIVE CLAIM incorporating paragraphs 5-11 of the main claim. Having done so the plaintiff stated in the alternative that:

"In the event of the Honourable Court finding that the Plaintiffs claim lies against the First Defendant, and not the Second Defendant, alternatively that the Plaintiff and the First Defendant concluded an agreement.”

The plaintiff makes this allegation despite the fact that paragraphs 5-11 give no basis for such eventuality upon which the Court could find that the plaintiff has a claim against VDM. Any suggestion therefore by the plaintiff that the Court can make this inference on the allegation made is a bridge too far for the plaintiff to cross and is without any substance. In turn Mr de Beer argued that paragraphs 5-11 of the opposed declaration should be read in the context of an agreement concluded as against VDM and not at the second defendant as in the main claim hence the fact that this is an alternative claim as against the second defendant. Therefore, he concluded that it becomes a matter of evidence whereupon a Court may come to the conclusion that an agreement was indeed concluded between the plaintiff and the first defendant or VDM as it is submitted that the plaintiff probably pleaded to the extent and duly complied with the requirements of Rule 18. I have pointed above already that no court can come to a conclusion on the bare allegation made by the plaintiff in this regard that an agreement has been concluded between the plaintiff and VDM. At any rate, such a conclusion would be inconsistent as an agreement envisaged by the plaintiff in these paragraphs should be in writing. It would also be invalid as it would be inconsistent with s 2 of the Constitution of the Republic of South Africa Act No. 1 08 of 1996 ("the Constitution"). Quite clearly the plaintiff does not set out any cause of action whatsoever against VDM in the main claim and accordingly VDM does not have to deal with it.

[29] With regard to the alternative claim Mr. Strydom argued that the plaintiff has failed to allege any agreement that was concluded between the plaintiff and VDM especially with regard to paragraphs 5-11 of the amended declaration. It was submitted by counsel for VDM that a Court will not find that a plaintiff's claim lies against VDM or that the plaintiff and VDM concluded an agreement as alleged as same was not set out in paragraphs 5-11 of the proposed amended declaration. In other words, this eventuality upon which the plaintiff relies can never be the point of departure to enable the plaintiff to rely on the further allegations as set out in paragraphs 5-1 1 of the proposed amendment declaration.

[30] In paragraph 1 5.1 of the amended declaration the plaintiff states as follows:

''During the course of the agreement the First Defendant agreed to accept the obligations and/or benefits in respect of the agreement under the following circumstances:

15.1. The First Defendant guaranteed to the Plaintiff that by accepting and/or taking over the rights and obligations of the agreement, the First Defendant complied with:

15.1.1.1  The local Government Municipal Finance Management Act 56of 2003,·

15.1.1.2  The Preferential Procurement police Framework Act 5 of 2000,· and

15.1.1.3  Its Supply Chain Management Policies.

15.1.2 That the First Defendant was entitled to take over the entire agreement as if it had concluded the agreement with the Plaintiff from the outset;

15.1.3 The First Defendant guaranteed to the Plaintiff that it was entitled to take over and/or accept the agreement and it was allowed and entitled to do so in respect of all its terms and conditions, as pleaded infra:

15.1.4 The First Defendant guaranteed that it was the party responsible to the Plaintiff in respect of the rendering of services by the Plaintiff in terms of agreement and that it would affect remuneration to the Plaintiff accordingly."

[31] In the aforegoing an attempt is then made to say that VDM in the course of the agreement agreed to accept obligations and or the benefits in respect of the agreement. It is not clear whether it is part of a tripartite agreement between the plaintiff and VDM and the second defendant or an agreement between the plaintiff and the second defendant or the plaintiff and VDM or an agreement between VDM and the second defendant. These allegations as contained in 15.1 are nothing but a futile attempt by the plaintiff to rely on a delegation, so it was argued by Mr. Strydom in that the plaintiff attempts to substitute the second defendant by taking over the obligations and/or benefits which agreement can only be validly concluded if all three parties, that is the plaintiff, VDM, and the second agreement agreed to then. As already pointed out such requirements of a delegation have not been pleaded by the plaintiff. Any agreement in terms of which VDM would have agreed to accept the obligations and/or benefits in respect of the agreement between the plaintiff and the second defendant would have had to be in writing and had to comply with the ordinary legislation referred to herein supra. This has not been pleaded by the plaintiff. The plaintiffs approach with regard to the aforegoing objection is that it does not rely on a guarantee agreement. Counsel for the plaintiff argued that the plaintiff did not rely on a cession or a delegation. He went further and stated that it is the plaintiffs case that the first defendant acquired the rights and obligations of/or from the second defendant in terms of the agreement to which the plaintiff is or was not priory to. The plaintiff was merely a service provider who was instructed to render services and to render invoices to VDM service render. With regard to the contents of paragraph 1 5.1.1 of the amended declaration the plaintiff then alleges that the first defendant ''guaranteed " that there was compliance with the legislative framework. According to counsel for VDM this constitutes a totally new cause of action inconsistent with the aforementioned cause of action as pleaded. This guarantee is somewhat tantamount to some or other warranty of legality or authority. Once again there is no mention made whether such a guarantee was in writing or oral, who represented the parties, what the terms thereof were and whether that guarantee agreement complied with the legislation referred to above. If the aforementioned guarantee agreement was not in writing or not in compliance with legislation it could not be of any force and effect. As already pointed out the plaintiff's approach was that it did not depend on a guarantee for its cause of action.

[32] In paragraph 16 of the amended declaration the plaintiff pleaded as follows:

''By virtue of the aforegoing, the agreement was effective to/taken over by the first defendant.”

In my view, this taking over referred to in paragraph 16 could only have occurred upon a delegation which is not the plaintiff's case. There is also no statement that it was in writing, that all the three parties signed this written agreement and that it was in compliance with the legislation. The Court has taken note of the fact that paragraph 16.2 of the amended declaration is pleaded in the alternative.

[33] In paragraph 17 of the amended declaration the plaintiff states as follows:

"The effect of the First Defendant accepting and taking over the agreement was that an agreement was concluded between the Plaintiff and the First Defendant, by virtue whereof an action for compensation for services rendered will lie against the First Defendant.”

Counsel for VDM has submitted that there is no legal basis laid down for such a contention and I agree with him fully.

[34] In paragraph 20.1 of the amended declaration which resorts under SECOND ALTERNATIVE CLAIM the plaintiff states that:

20.1. "The Plaintiff rendered repair services to the First Defendant 's equipment, and supplied materials for the services thereof, at the First - alternatively Second Defendant 's special instance and/or request for the period of 1 December2011 to 1 December2014;

20.2. The Defendants has (sic) had the benefit of the use of the plaintiff's services rendered as well as the materials supplied for the services rendered;

20.3. The value of the services rendered and the material supplied is the amount of R1, 508,531.33 in which amount the Defendants have been enriched and that the Plaintiff has been impoverished;

20.4. The Defendant has (sic) been enriched at the expense of the Plaintiff which enrichment was unjustified.

21. Notwithstanding due demand, and the amount being due, owing and payable, the First Defendant has failed to make payment to the Plaintiff in respect of the amount of R1, 508, 531.33."

An objection was raised against this amendment on the basis that it appeared from the plaintiffs own supporting documentation that the plaintiff is in possession of the repaired equipment and that such equipment was in the plaintiff's workshop. The statement that the defendants had the benefit of the use of the plaintiff's services rendered as well as the material supplied for the services rendered is, according to Mr. Strydom, directly contrary to the fact that the plaintiffs own documentation shows that the plaintiff is still in possession of the said goods that had to be repaired. He argued furthermore that there is no general enrichment action in our law. The other case set out in the SECOND ALTERNATIVE CLAIM is tantamount to such a general enrichment claim which is without any substance. See in this regard Nortje v Poel 1966 (3) SA 96 A at 1 35 and also Kommissaris van Binnelandse lnkomste v Villiers 1 994 (3) SA 283 A at 334.

[35] Now the basis of the plaintiffs claim in the SECOND ALTERNATIVE CLAIM seems to be enrichment. This appears in the plaintiffs counsel's heads of argument. In such heads he states that essential allegations necessary for a claim based on the condictio indebiti are as follows:

1. the first defendant must be enriched;

2. the plaintiff must be impoverished;

3. the defendant's enrichment must be at the expense of the plaintiff; and

4. the enrichment must be unjustified or sine causa.

It is VDM's contention that the plaintiff has failed to plea the necessary allegations to base a claim on enrichment either by way of condictio indebiti alternatively or condictio sine causa. Counsel for VDM states that the claim as set out in the second alternative cannot be based on the condictio indebiti as the following are the requirements for same:

1. this action is applicable if ownership of money or other property had been transferred to another;

2. the condictio lies against the recipients of the indebitum,

3. the transfer of money or property must have been indebiti; meaning without any obligation;

4. the transfer must have been done with the mistaken belief that it is due, which mistake must be excusable.

It was submitted again by counsel for VDM that the premised claim can also not be based on condictio sine causa as the following are the requirements for same:

1. this is an action instituted against a bona fide possessor who acquired a thing ex causa lucrative,· and

2. there must be dispossession of property.

The plaintiff has not made any such allegations and accordingly no claim based on either the condictio indebiti or the condictio sine causa. Mr. Strydom referred the court in his heads of argument to Lawsa Vol. 9 paragraph 212 in support of condictio indebiti and to Lawsa Vol. 9 paragraph 220 in support of condictio sine causa. My attempts to find the connections of the said paragraphs to condictio indebiti and condictio sine causa respectively proved to be a wild goose chase. Paragraph 212 of Lawsa Vol. 9 deals with RECOVERY AND DISPOSAL OF DESIGNATED PRODUCTS while paragraph 220 deals with industry codes, codes of practice and guidelines.

[36] In his notice of intention to amend the plaintiff has tendered the wasted costs occasioned by this amendment. It is accordingly only proper if an order of costs is made against the plaintiff.

[37] I am satisfied that the first defendant, VDM, has made out a good case against the plaintiffs application to amend its declaration. The new declaration 'even by a miraculous feat of mental acrobatics at semantic contrivance or ingenuity' lacks averments which are necessary to sustain an action against VDM. Furthermore if the application for amendment or declaration was allowed by this Court it would become excipiable at the instance of the first defendant, VDM. An amendment of claim may not be granted if it will be met by an exception. This principle was demonstrated by a court in De Klerk and Another v Du Plessis and Others 1995 (2) SA 40 TPD which matter dealt with an exception. In the said authority the court had the following to say at page 431 J:

''An amendment which would render a pleading excipiable should not be allowed. Whether a pleading would or would not become excipiable is a matter of law which should be decided by the court hearing the application for the amendment. It would be incorrect, in my view, to hold that it is arguable that the amendment would not render the pleading excipiable, allow it, and send the parties away to prepare for another battle on exception on the same point …”

[38] Accordingly I make the following order:

1. The application for amendment of the declaration is, in so far as it relates to the First Defendant only, hereby dismissed with costs.

                                                      

PM MABUSE

JUDGE OF THE HIGH COURT

 

Appearances:

Counsel for the applicant:                                             Adv. J de Beer

Instructed by:                                                                Eis, Louw & Rasool

Counsel for the first respondent:                                  Adv. T Strydom (SC)

Instructed by:                                                               Tshiredo Attorneys

Counsel for the second respondent:

Instructed by:                                                               The State Attorney

Date Heard:                                                                  16 November 2016

Date of Judgment:                                                        26 June 2017

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