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IN THE NORTH WEST HIGH COURT, MAFIKENG

CASE NO:  730/2014

In the matter between:

YIELD WTP (EDMS) BPK t/a NOVAN WTP                   Plaintiff (Respondent)

and

MARTHINUS JOHANNES LAUFS                                 Defendant (Excipient)

DATE OF HEARING: 24 NOVEMBER 2016

DATE OF JUDGMENT: 15 DECEMBER 2016

COUNSEL FOR THE PLAINTIFF: ADV. PRETORIUS

COUNSEL FOR THE DEFENDANT: ADV. DU PREEZ S.C

 

JUDGMENT

 

HENDRICKS J

 

INTRODUCTION

[1] This is an exception application by the Defendant (excipient) against the particulars of claim of the Plaintiff. The Plaintiff Yield WTP (Pty) Ltd t/a Novon WTP issued summons against the Defendant for, amongst others, rectification of the delivery notes and payment of the amount of R753 014.64. The claim is based on the failure of the Defendant to pay for goods sold and delivered in terms of a party oral party written agreement entered into between the parties for the period September 2010 to January 2013.

[2] On 03 August 2015 the Defendant (excipient) served and filed a notice of exception to Plaintiff’s particulars of claim alleging that it is not only vague and embarrassing but it also fail to disclose a cause of action. An opportunity was afforded to the Plaintiff to remove the cause of the complaint. The Plaintiff failed to remove the cause of the complaint.

[3] In terms of Rule 23 (1) of the Uniform Rules of the High Court, an opposing party may deliver an exception where any pleading is vague and embarrassing or lacks averments that are necessary to sustain an  action or a defence. The object of an exception is to dispose of the case or a portion thereof in an expeditious manner, or to protect a party against an embarrassment that is so serious as to merit the costs even of an exception. It follows that an exception founded on the contention that a claim discloses no cause of action, is designated to obtain a decision on the point of law that will dispose of the case completely or in part and avoid the leading of unnecessary evidence at the trial. An exception that a pleading is vague and embarrassing is not directed at a particular paragraph within a cause of action, but is directed to the whole cause of action, which must be demonstrated to be vague and embarrassing and assails the formulation of the cause of action and not its legal validity.

See: Barclays National Bank v Thompson 1989 (1) SA 547 (A)

Trope v South African Reserve Bank [1993] ZASCA 54; 1993 (3) SA 264 (A)

Venter & Others NNO v Barrit; Venter & Others NNO v Wolfsberg Arch Investments 2 (Pty) Ltd 2008 (4) SA 639 (C)

[4] The test to determine whether a pleading is vague and embarrassing and thus excipiable, may be phrased as follows:

· The reader must be unable to distil from the statement a clear, single meaning;

· If such vagueness is present, the court has to embark on a quantitative analysis of such embarrassment as the excipient can show cause of;

· In each case an ad hoc ruling must be made as to whether the embarrassment is so serious as to cause prejudice to the excipient if compelled to plead to the pleading on the form to which the excipient objects;

· The ultimate test is whether the excipient is prejudiced;

· The excipient bears the onus to show both vagueness amounting to embarrassment and embarrassment amounting to prejudice by reference to the pleadings alone;

· The court will not decide by way of exception the validity of an agreement relied upon or whether a purported contract may be void for vagueness.

[5] A summons will be vague and embarrassing if, amongst others, it is not evident whether the plaintiff sues on a written or a subsequent oral contract; or where there is a contradiction between the allegations in the particulars of claim and the documents relied upon as the basis of the claim; or if the plaintiff’s particulars of claim does not disclosed upon every possible interpretation that it can reasonably bear, a cause of action.

See:  Theunissen v Transvaalse Lewendehawe Koöp Bpk 1988 (2) SA 493 (A)

Lewis v Oneanate (Pty) Ltd [1992] ZASCA 174; 1992 (4) SA 811 (A)

Sun Packaging (Pty) Ltd v Vreulink [1996] ZASCA 73; 1996 (4) SA 176 (A)

[6] In the amended particulars of claim, the Plaintiff alleges that it was the parties contentions and mutual understanding and intention that up to 30 August 2011 the delivery notes, invoices and standard terms and conditions of the seller would reflect Novon WTP (Edms) Bpk and thereafter the name change to Yield WTP (Edms) Bpk. The Plaintiff seek rectification of certain delivery notes listed in the amended particulars of claim to read:

“Novon WTP (Edms) Bpk” (before 30 August 2011) and “Yield WTP (Edms) Bpk” (after 30 August 2011) as opposed to “Novon Oedbeskerming WTP (Edms) Bpk.”

[7] It was contended by Mr. Pretorius on behalf of the Plaintiff that the name on the delivery notes attached to the amended particulars of claim, can be rectified because it erroneously does not record the consensus reached between the parties. This, he submitted, forms part of the agreement between the parties. Mr. Du Preez SC on behalf of the Defendant (excipient) submitted that rectification is not available and does not find application in that it does not relate to the agreement between the parties but to the delivery notes. It cannot be, as submitted, that each and every delivery note constitute a new agreement between the parties.

[8] In Intercontinental Export (Pty) Ltd v Fowles 1999 (2) SA 1045 (SCA) the following is stated on page 1051:

“[11] Rectification is a well established common-law right. It provides an equitable remedy designed to correct the failure of a written contract to reflect the true agreement between the parties to the contract. It thereby enables effect to be given to the parties' actual agreement. The require­ment of formal validity in the case of a deed of suretyship flows from the Legislature's perceived need to provide safeguards in such matters. To the extent that the need to satisfy the latter may preclude recourse to the former, tension will inevitably exist between the two. 'While care must be taken not to defeat the object of the Act, the formality requirements must not be allowed to become an unnecessary stumbling-block to rectifica­tion and, consequently, to giving effect to the true intention of the contracting parties.”

Mr. Du Preez SC contended that rectification is the appropriate remedy where a written contract records a version of the contract that is not in accordance with what was actually agreed and one of the parties wishes to enforce the true version because the words the parties actually used in the documents to override the prior agreement or the common intention that they intended to record is to enforce what was not agreed, and so overthrow the basis on which contracts rest in our law. The application of contractual theory leads to such a result.

See: Tesven CC and Another v South African Bank of Athens 2000 (1) SA 268 (SCA)

[9] I am in full agreement with Mr. Du Preez SC that rectification relates to contractual documents and not delivery notes. The delivery notes are not written contracts but documents created by the Plaintiff subsequent to the conclusion of the contract which cannot be rectified in terms of the law of contract. It follows that Plaintiff’s claim for rectification of the delivery notes are impermissible and the Plaintiff’s particulars of claim accordingly fails to disclose a cause of action for the rectification of the delivery notes.

[10] There is also another discrepancy between the amended particulars of claim and the documents in respect of which the Plaintiff seek rectification. Some of the delivery notes refer to “Novon Protection WTP (Edms) Bpk”. Even if this Court could be inclined to grant the rectification as prayed for in the amended particulars, the amended particulars of claim will still be vague and embarrassing because it is uncertain whether the Plaintiff is Novon Protection WTP (Edms) Bpk or Yield WTP (Edms) Bpk. The allegations in the amended particulars of claim is in conflict with the documents relied upon which makes it vague and embarrassing. There is therefore merit in the contention by the Defendant as excipient that it is unable to distil from the amended particulars of claim a clear, single meaning. The prejudice to the excipient if it was to plead to it is because it is uncertain as to which entity delivered the goods. Therefore, rectification cannot be granted and the particulars of claim is excipiable because it is vague and embarrassing.

[11] It does however not end there. There are also other problems that the Plaintiff’s particulars of claim have in so far as it concerns the delivery notes. The delivery notes does not reflect the account holder and do not support the alleged sales to the Defendant. Furthermore, most of the delivery notes were not signed by the Defendant as the buyer. So too, does the delivery notes sought admissions pertaining to warranties, guarantees and indemnities and not to payments becoming due and payable. This is in contrast to paragraph 10 of the amended particulars of claim in which the Plaintiff alleges that by signing the delivery notes the Defendant (excipient) admitted to the payment terms of 30 days after the invoice, failing which interest at the rate of 2 % per month would be levied. The amended particulars of claim lacks allegations to substantiate a claim in this regard. This means there is a contradiction between the allegations regarding the provisions of the delivery notes as alleged in the amended particulars of claim and the documents relied upon. The amended particulars of claim is thus excipiable in that it is vague and embarrassing. To add to the confusion, annexure “X12” reflects that the goods were delivered to one B.H Joubert and not the Defendant.

[12] The Plaintiff relies in paragraph 11.1 on the General Terms and Conditions contained in Annexure “X17” attached to the amended particulars of claim as the written terms and conditions of the agreement between the parties.

Clause 2 of the General Terms and Conditions exclude any oral agreement. This is in contrast with the contention by the Plaintiff that the agreement is partly oral and partly written. Clause 2.1 reads:

“2.1 These terms and conditions shall apply to any contract in terms of which the company agrees to sell any products irrespective of the circumstances under which the contract arose of and to the exclusion of any terms and conditions which the purchaser may seek to make applicable, and no alteration or variation of thee terms and conditions shall be of any force or effect unless and until recorded in writing and signed by the company and the purchaser.”

This means that the Plaintiff cannot rely on the alleged oral agreement. The particulars of claim therefore fail to disclose a cause of action in this regard. It stands to reason that the Defendant (excipient) will be prejudiced in pleading to a non-existent cause of action.

[13] Mr. Pretorius on behalf of the Plaintiff furthermore contended that in the event that the exception is upheld, the Plaintiff should be afforded an opportunity to substitute the amended particulars of claim. I am in agreement with this submission by Mr. Pretorius although I must add, reluctantly so, because the Defendant (excipient) already brought the defects in the amended particulars of claim to the attention of the Plaintiff. I will allow the Plaintiff another opportunity to cure the defects. Although I am mindful of the objects of an exception namely to dispose of the case or a portion thereof in an expeditious manner or to protect a party against an embarrassment and avoid the leading of unnecessary evidence at the trial.

See: Trope v South African Reserve Bank, supra.

[14] I am therefore of the view that the exception of the Defendant  (excipient) should be upheld and the Plaintiff should be ordered to pay the costs of the exception. In order to case manage this matter and to get it trial ready as soon as possible, the Plaintiff will be given ten (10) court days from the date of this judgment to remedy the defects, failing which the Defendant (excipient) may, on the same papers or amplified if necessary, approach this Court for the dismissal of the Plaintiff’s claim.

 

ORDER

[15] Consequently, the following order is made:

(1) The exception by the Defendant (excipient) is upheld.

(2) The Plaintiff is ordered to pay the costs of the exception.

(3) The Plaintiff must cure the defects in the amended particulars of claim by filing and serve a further amended particulars of claim within ten (10) court days from date of this order.

(4) In the event that the Plaintiff fail to rectify the amended particulars of claim, the Defendant (excipient) may approach this Court on the same papers or amplified if necessary, for the dismissal of the Plaintiff’s claim.

 

R D HENDRICKS

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

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