South Africa: North West High Court, Mafikeng

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J.B.R Building Construction (Pty) Ltd v Royal Bafokeng Administration (446/2000) [2001] ZANWHC 1 (18 January 2001)

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[2] I find it fitting and convenient to reproduce the particulars of claim. They are as follows:

“ PARTICULARS OF CLAIM

1. The Plaintiff is JBR Building Construction (Pty) Ltd, a company incorporated in terms of company Act of the Republic, conducting business at Punodung, Phokeng.

2 The Defendant is Royal Bafokeng Administration, a tribal Authority situated at PHOKENG and conducting its daily activity at SARON, a section of Phokeng.

3. Both parties are within the jurisdiction of the above Honourable Court.

3. On or about February 1997 the Plaintiff and the Defendant entered into oral contract of the following terms.

4.1 The Plaintiff would built TLAPA Primary School in the area of TLAPA which is a section of Phokeng.

4.2 The Defendant was to pay the amount which was to be determined by the Plaintiff when the Bill of Quantities was made available subsequently.

4.3 The Defendant was to supply building materials to the Plaintiff.

4.4 The Defendant would pay the Plaintiff for every completed level of the building.

4.5 The estimated duration of building was eight months from commencement date of 23 June 1997.

4.6 That the Defendant would advance loan to the Plaintiff to cover Labour expenses incurred by the Plaintiff.

3. On 19 June 1997 the Plaintiff started to build the school as per agreement.

5.1 The Plaintiff hired concrete equipment for R8 500,00.

5.2 On or about 15^th August 1997 the Plaintiff finished the foundation and wall of about 3000 bricks

5.3 On or about September 1997 the Defendant supplied the Plaintiff with bill of quantity.

5.4 Plaintiff employed quantity surveyor whose determination for cost of preminaries was R135 000,00.

5.4.1 Concrete, Form Work and Reinforcement R 242 737,85.

5.4.2 Mansory R 401 898,72

5.4.3 Waterproofing R 92 966,20

5.4.4 Roof Covering R 290 310,00

5.4.5 Carpentry and Joinery R 149 212,87

5.4.6 Ceiling etc R 52 498,27

5.4.7 Floor Covering R 124 300,00

5.4.8 Metal work R 107 576,90

5.4.9 Plastering R 395 48,39

5.4.10 Tiling R 16 350,00

5.4.11 Glazing R 55 890,00

5.4.12 Paintwork R 108 322,00

TOTAL --------------------

R2265 077,00

--------------------

3. On or about September 1997 the Defendant paid the Plaintiff an amount of R74 000,00.

6.1 Defendant refused to pay R242 737,00 as per Bill of Quantities which the Plaintiff had submitted to Defendant.

6.2 The Plaintiff on or about August 1997 had already finished concrete, formwork and reinforcement as per page 3 of Bill of Quantity attached hereto marked annexure “JBR 1”.

6.3 The Defendant refused to supply the Plaintiff with building material.

6.4 On or about September 1997 the Defendant informed the Plaintiff to stop building the school and to tender for the building of the same school.

6.5 On or about September 1997 the Defendant informed the Plaintiff that another contract will build the school and that Plaintiff should move out of site

3. The Defendant breached the contract interms of which the Plaintiff was to build the whole school building by doing the following.

7.1 By failing to provide the Plaintiff with building material.

7.2 By failing to pay the Plaintiff for level completed in accordance with amount reflected on Bill of Cost R242 737,00 for concrete formwork and reinforcement

7.3 By stopping the Plaintiff from completing the whole building.

7.4 By ordering the Plaintiff to move out of building site and by bringing in another builder to proceed with completion of the school building.

R2 199 577,80

WHEREFORE PLAINTIFF claims the following

1. R8 500,00 for hired equipment

2. R2 199 577,80 with interest of 15,5% from due date.

3. Costs of the suit

4. Further and/or alternative relief.”

[3] As I have said above, the basis for the exception is that the summons does not disclose a cause of action. The grounds are as follows:

(a) The Plaintiff has failed to allege in paragraph 2 of its particulars of claim that the Defendant has locus standi in judicio to be sued (“the no locus standi ground”);

(b) Both parties are juristic persons who could only have concluded the contract if assisted by natural persons. The Plaintiff’s failure to state, in paragraph 4, that the parties were so represented renders the contract invalid in law (“the juristic person ground”);

(c) The Plaintiff avers in paragraph 4.2 that the parties had agreed that the Plaintiff would determine the amount payable in terms of the contract. A contract concluded on those terms is invalid in law. Alternatively, the Plaintiff has not alleged that it had at any stage determined any amount which is payable in terms of the contract (“the payment ground”);

(d) The bases for the breach of contract set out in paragraph 7 of the particulars of claim are not the same as the terms and conditions of contract pleaded in paragraph 4. There could not, therefore, have been a breach of contract (“the breach of contract ground”);

(e) There is no link between the damages claimed and the alleged breach of contract (“the nexus ground”);

(f) No cause of action was disclosed with regard to the sum of R8 500.00 (“the R8 500.00 ground”).

[4] The thrust of the submissions made on behalf of the Defendant, by Mr Da Silva, was that the summons does not disclose a cause of action. The above grounds were relied on in support of this main contention. Mr Mokate, for the Plaintiff, submitted that whereas the Defendant has excepted to the summons on the basis that it does not disclose a cause of action, some of the grounds relied on seem to suggest that the exception was taken on the basis that the allegations in the summons are vague and embarrassing. If this be the case, so the argument goes, then the Defendant should, in terms of Rule 23, have afforded the Plaintiff the opportunity to remove the cause of complaint. Since the Plaintiff was not afforded that opportunity, Mr Mokate contended that the exception must either be dismissed or the decision on its merits be postponed. I understood the submission to mean that such a decision could then be taken only after the Plaintiff would have had the opportunity to cure the pleadings of the defect, provided the Defendant believes that the cause of complaint still exists. Mr Mokate further submitted that a clear and concise statement of the material facts upon which the Plaintiff relies for its claim was pleaded with sufficient particularity to enable the Defendant to know the case it has to meet. He said that whatever defects there may be in the pleadings could be cured by evidence. I am now going to deal with the legal principles which apply to an exception which is based on the allegation that the pleadings do not disclose a cause of action.

[5] An exception is a legal objection which complains about a defect inherent in the pleading. The approach which the excipient must adopt where it is alleged that a pleading does not disclose a cause of action was captured by Howard J, as he then was, in the following terms in ANIRUDH v SAMDEI AND OTHERS 1975 (2) SA 706 (N) at 708E:

“The Plaintiff takes the claim in reconvention as it stands and says, correctly in my opinion, that even if the defendants succeed in proving each and every averment contained therein they will not be entitled in law to any of the relief claimed. That being so, it cannot be gainsaid that the claim in reconvention lacks averments which are necessary to sustain an action.”

[6] This dictum was subsequently endorsed by Ackerman J in MAKGAE v SENTRABOER (KOÖPERATIEF) Bpk 1981 (4) SA 239 (T) at 244H-245A as follows:

“  Eksepsie dat eiser se besonderhede van vordering beweringe mis wat nodig is om die aksie te staaf is in wese  beswaar in regte teen sodanige pleitstuk. Die beswaar is gerig teen  inherente gebrek in die pleitstuk: dit aanvaar vir die oomblik dat al die bewerings daarin vervat korrek is maar voer desondanks aan dat die pleitstuk nie  gedingsoorsaak openbaar nie. Die korrektheid van die feite in die besonderhede van vordering word aanvaar maar die regskonklusie word betwis.”

[7] For the purpose of deciding about an exception a Court must, therefore, assume the correctness of the factual comments made in the relevant pleading, unless they are clearly untrue or so improbable that they cannot be accepted. See VAN ZYL v BOLTON 1994 (4) SA 648 (C) at 651E-F; NATAL FRESH PRODUCE GROWERS’ ASSOCIATION AND OTHERS v AGROSERVE (PTY) LTD AND OTHERS 1990 (4) SA 749 (N) at 754J-755B. I will now highlight and examine the material allegations in the particulars of claim with a view to determining whether the Plaintiff would, in law, be entitled to any of the relief claimed, if it succeeds to prove them.

[8] The material averments are that (i) the parties agreed that the Plaintiff would build a school for the Defendant; (ii) the Defendant would supply the Plaintiff with building material; (iii) the Defendant was to pay the Plaintiff for every completed level of the building project; and (iv) the ‘bill of quantities’, apparently prepared by a quantity surveyor, would first have to be available to the Plaintiff, before the Plaintiff could determine the amount payable by the Defendant.

[9] Pursuant to the abovementioned contract, the Plaintiff (i) hired a concrete equipment for R8 500.00; (ii) completed the foundation level of the project and built a wall with 3 000 bricks; and (iii) obtained a ‘bill of quantities’ for the work already done and submitted a claim for payment in the amount of R242 737.85 to the Defendant. The Defendant paid only R74 000.00 to the Plaintiff.

[10] Having failed to pay the whole amount of R242 737.85 to the Plaintiff, the Defendant also (i) refused to supply the Plaintiff with building material; and (ii) terminated the contract or ordered the Plaintiff out of the building site before the expiry of the contract period and before the Plaintiff completed the school in terms of the agreement. It is for these reasons (“wherefore”) that the Plaintiff prays for the R8 500.00 and R2 199 577.80.

[11] This is the inescapable picture that must emerge from any logical and intelligent reading of the Plaintiff’s particulars of claim. As stated in the above authorities I must accept, for the purpose of this application, that the above material allegations are correct. I must now decide whether this accepted picture discloses a cause of action or whether the aforementioned material allegations can sustain the legal conclusion or relief contended for by the Plaintiff. I do so herebelow.

[12] Three claims are discernible from these pleadings. The first claim is for the hired concrete equipment for which the sum of R8 500.00 is owing. The second claim is for the difference between the amount claimed and the amount paid for the work already done i.e. R242 737.85 and R74 000.00. The third claim relates to the so-called breach of contract.

(a) The Plaintiff did not allege anywhere in the particulars of claim that it was a term of their contract that the Plaintiff would or could hire equipment and that the Defendant would be liable to pay for the hiring of such equipment. There is therefore no factual basis for claiming that the Defendant should be held responsible, in terms of the contract, for an obligation that does not flow from that contract. Since no other basis was laid for this claim, I have no hesitation in concluding that the summons lacks averments which are necessary to support the first claim. The exception to this claim will, therefore, be upheld and this claim will be struck out.

(b) The position with respect to the second claim is that having done some work, the Plaintiff obtained the ‘bill of quantities’ and it then sent a claim to the Defendant. However, the Defendant failed to pay the full amount claimed by the Plaintiff. Although the Plaintiff did not make a separate prayer for the difference between the amount claimed and the amount paid, I am of the view that the Plaintiff has made allegations which are sufficient to sustain the second claim. It is easy to make out how much should be claimed under this claim. The Plaintiff must, therefore, be given the opportunity to amend its pleading so as to state the amount and address such other defects as there may be.

(c) The third claim discloses an action for breach of contract. The allegation is that the Defendant stopped the Plaintiff from completing the project contrary to the terms of the agreement. The material terms of the agreement which the Defendant is alleged to have breached are the same terms set out in paragraph 4 of the particulars of claim. I therefore reject the Defendant’s submission to the contrary. What has to happen, in my view, is for the Plaintiff to be afforded the opportunity to cure its pleading of the vagueness and incompleteness that surrounds it. This then brings me to the question whether the summons discloses any cause of action whatsoever, or whether it is basically vague and embarrassing as alluded to by Mr Mokate.

[13] There can be no question that these particulars of claim were badly drafted. This is evident from the grounds of exception relied on by Mr Da Silva as well as the structure of the pleadings. For example, reference is made to the amount claimed and the amount paid for the work done but there is no separate prayer for the balance. There is also mention made of the ‘bill of quantities’ in subparagraph 5.4 and a breakdown of levels/stages of the building process and the amounts payable at each stage. However, no attempt was made to show the connection between what is stated in 5.4 and what appears from 5.4.1 to 5.4.12. There is also no clear link established between the alleged breach of contract and the R2 199 577.80 which appears between paragraph 7 and the prayer. Reference is made to annexure “JBR1" but it is not in the file. The contents of paragraphs 6, 6.1 and 6.2 suggest that they should not have been put in the same paragraph with 6.3, 6.4 and 6.5. The two sets of subparagraphs deal with completely different issues. The Plaintiff needs to say more on the third claim (breach of contract) to bring it in conformity with the acceptable manner in which such actions are pleaded. All that these defects and insufficient particularity go to prove (except for the claim for R8 500.00) is that the summons is vague and embarrassing.

[14] Although the basis for the exception is that the summons does not disclose a cause of action, only the locus standi ground is the proper basis for excepting to the summons as not disclosing a cause of action. (See COLLIN v TOFFIE 1944 AD 456 at 466 and VILJOEN v FEDERATED TRUST LTD 1971 (1) SA 750 (O) at 759H-760E). Be that as it may the Defendant has, in terms of s 31 of the Bophuthatswana Traditional Authorities Act No. 23 of 1978, the locus standi to sue and to be sued. This has happened on numerous occasions in this Division the latest instance being in BAFOKENG TRIBE v IMPALA PLATINUM LTD AND OTHERS 1999 (3) SA 517 (B). The juristic person ground and the payment ground have got nothing to do with whether or not the pleadings disclose a cause of action. If these grounds were well-founded, they would at most point to the fact that the summons is vague and embarrassing. The only problem with the second claim, is that the Plaintiff did not disentangle it from the claim for breach of contract and that there is no separate prayer in respect of it. It has got nothing to do with breach of contract. It is a simple and separate claim for payment for services rendered. The claim for breach of contract (third claim) is also defective and incomplete. Therefore, whereas the cause of action is disclosed by the summons, there is however some vagueness and incompleteness about the relevant averments and this applies to the nexus ground as well.

[15] Broadly speaking, the particulars of claim are vague and embarrassing. The Defendant should, therefore, have excepted to the pleadings on that basis. Had this been done, the Plaintiff would have been entitled to the opportunity to cure its pleadings of all the defects complained of. This is a proper case where the Plaintiff should be granted leave to amend its particulars of claim so as to cure them of the defect and incompleteness. I am satisfied that this leave and the refusal to uphold the exception, in so far as it relates to the second and third claims, will not result in any serious prejudice to the Defendant. I will now comment briefly on the question of costs.

[16] The Defendant was successful in respect of the first claim. On the other hand, the Plaintiff successfully opposed the exception in respect of the second and third claims. Accordingly, I will not make an order for costs against any party since they both attained some victory.

[17] In the result I make the following order:

(a) The exception is upheld in respect of the claim for R8 500.00 and this claim is struck out;

(b) The exception is dismissed in respect of the remaining claims;

(c) The Plaintiff is granted leave to amend its summons and particulars of claim so as to cure them of the lack of particularity and all other defects, if so advised, within 15 days from the date of this order;

(d) Each party is to pay its costs.

M.T.R. MOGOENG

JUDGE OF THE HIGH COURT

APPEARANCES

DATE OF HEARING : 30 NOVEMBER 2000

DATE OF JUDGMENT : 18 JANUARY 2001

COUNSEL FOR PLAINTIFF : ADV C.D. DA SILVA

COUNSEL FOR DEFENDANT : ADV K.M. MOKATE

ATTORNEYS FOR PLAINTIFF : SEGOALE ATTORNEYS c/o TLHAPI & MOOKELETSI

ATTORNEYS FOR DEFENDANT : GURA TLALETSI INC.

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