Barnard v De Klerk

• Jurisdiction: South Africa
• Court: Eastern Cape Division
• Judge: MS Rugunanan, J
• Judgment Date: 22 October 2020
• Citation: 2020 JDR 2186 (ECP)
• Hearing Date: 13 August 2020
• Docket Number: 2015/2019

Rugunanan J:

[1]

During August 2017 the defendant (acting through a duly appointed agent) sold to the plaintiffs a fixed residential property located in Despatch. The property was, in terms of a written agreement incorporating a voetstoots clause, sold for an amount of R1 150 000. As at 1 March 2018 and in accordance with their contractual obligations the plaintiffs paid a total amount of R268 575, 71 being instalments for the purchase price.

[2]

The plaintiffs instituted action against the defendant. A perusal of the particulars of claim indicates that there are two distinct components to their claim.

2020 JDR 2186 p2

Rugunanan J

The first is the claim for cancellation of the agreement due to latent defects that were discovered in the property during or about March 2018 and restitution of the amount of R268 575, 71. The second, as an alternative, is for restitution of that amount on the basis that the defendant is not entitled to retain it as rouwkoop under the Conventional Penalties Act. [1] What follows hereunder bears relevance only to the first component since the second is immaterial to these proceedings.

[3]

The present dispute between the parties arises from an exception noted by the defendant against the plaintiffs' particulars of claim – the complaint being that that it lacks averments to sustain a cause of action and that it is vague and embarrassing.

[4]

The particulars of claim incorporates the following allegations (quoting only those paragraphs at the substratum of the defendant's exception/s):

"8.4

In terms of clause 4.1 of the contract, the defendant warranted that there were no latent defects in the property known to him and that save for this, the property was sold voetstoots."

…

"10.

It was an implied term of the contract that the property will be free of latent defects and fit to be used as a residential property."

11.

On or about March 2018, the plaintiffs' discovered the following latent defects in the property, in that:

11.1

The foundation of the house was sinking; the gap between the floor and the skirting was growing, which indicated a severe problem with the foundation of the property.

11.2

Multiple cracks in the external and internal walls of the property opened up and became visible, which cracks penetrated to the wall thickness.

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Rugunanan J

11.3

A significant part of the building on the property was built on unstable fill.

11.4

The property required extensive remedial work in order to prevent further structural damage and to render it fit for purpose."

[5]

Regarding paragraph 10, the defendant's complaint is that it is vague and embarrassing and prejudicial because:

(i)

the allegation can only be implied by operation of the law which the plaintiffs have not pleaded; and

(ii)

the allegation conflicts with the voetstoots clause expressly pleaded in paragraph 8.4.

[6]

Regarding paragraph 11, the complaint is that it lacks averments to sustain a cause of action, alternatively it is vague and embarrassing. The complaint is based on the contention that an ordinary interpretation of the alleged latent defects suggests that they are patent defects - and such defects are not covered by a voetstoots clause particularly where the plaintiffs inspected [2] the property prior to its purchase.

APPLICABLE LEGAL PRINCIPLES:

[7]

As a general rule pleadings must be lucid, logical and intelligible. [3] They serve the purpose of bringing clearly to the notice of the court and to the parties in an action the issues upon which reliance is to be placed. This objective can only be attained when parties state their case with precision, the degree of which depends on the circumstances of each case. [4] Rule 18(4) of the Uniform Rules of Court serves as a guideline for the careful drafting of a pleading to achieve this objective. The rule requires that every pleading "shall contain a clear and concise

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Rugunanan J

statement of the material facts upon which the pleader relies for his claim … with sufficient particularity to enable the opposite party to reply thereto."

[8]

The approach to be adopted to an exception that a pleading is vague and embarrassing, is that the onus is on the excipient to show vagueness amounting to embarrassment and embarrassment amounting to prejudice. A pleading is vague if it is either meaningless or capable of more than one meaning; it is embarrassing if it cannot be gathered from it what ground is relied on by the pleader. [5] 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. [6] In considering an exception that a pleading does not sustain a cause of action, the court will accept, as true, the allegations pleaded by the plaintiff to assess whether they disclose a cause of action.

[9]

In Living Hands (Pty) Ltd and Another v Ditz and Others, [7] the court set out an overview of the applicable general principles relating to exceptions as distilled from case law, as follows:

(i)

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...