Dharumpal Transport (Pty) Ltd v Dharumpal

• Jurisdiction: South Africa
• Judge: Schreiner JA, Hoexter JA, Fagan JA, De Villiers JA and Brink JA
• Judgment Date: 30 November 1955
• Citation: 1956 (1) SA 700 (A)
• Hearing Date: 11 November 1955
• Court: Appellate Division

Dharumpal Transport (Pty) Ltd v Dharumpal
1956 (1) SA 700 (A)

1956 (1) SA p700

Citation	1956 (1) SA 700 (A)
Court	Appellate Division
Judge	Schreiner JA, Hoexter JA, Fagan JA, De Villiers JA and Brink JA
Heard	November 11, 1955
Judgment	November 30, 1955

Flynote : Sleutelwoorde

Practice — Pleading — Declaration — Exception to — Not a D ground for exception that one of several claims arising out of one cause of action not supported by declaration — Sale — Not void for vagueness where approval of guarantor by seller provided for — Appeal — Costs — Respondent succeeding on point not taken in either Court — Respondent only awarded half his costs of appeal. E

Headnote : Kopnota

An exception cannot be validly taken to a declaration on the ground that it does not support one of several claims arising out of one cause of action. A contract of sale is not void for vagueness where both the merx and the pretium are clearly defined and the only matter left to the discretion of the seller is his approval of the sufficiency and suitability of the guarantor, a discretion which he must exercise arbitrio boni viri.

In an appeal from the decision of a Local Division dismissing two exceptions to a declaration, the Appellate Division held that the F exceptions had rightly been dismissed but it appeared that the successful plaintiff had not taken the point, on which he succeeded in the appeal in respect of the first exception, in either Court and that, in view of the obvious weakness of the second exception, there might have been no appeal had the point been taken.

Held, that the excipient should pay only half of the plaintiff's costs of appeal. The decision in the Durban and Coast Local Division in G Dharumpal v Dharumpal Transport (Pty.) Ltd., confirmed.

Case Information

Appeal from a decision in the Durban and Coast Local Division (BROKENSHA, J.), leave having been granted by such Court, dismissing exceptions to a declaration. The nature of the pleadings appears from the judgment of HOEXTER, J.A.

J. Gurwitz, for the appellant: In the case where the debtor seeks to anticipate payment where payment is by instalments, payment by instalments is presumed to be for the benefit of the debtor; see Kelly v Holmes Bros., 1927 OPD at p. 32; van Leeuwen, Cens. For., 1.4.4.31; de Bruyn v Peypers, 1953 (1) SA at p. 487; McCabe v Burisch, 1930 T.P.D. at pp. 265 - 6; Wolmarans v Wolmarans, 1931 S.A.L.J. 409. Such is the case unless such payments are expressly or impliedly for H

1956 (1) SA p701

the benefit of the debtor and the creditor, or the creditor alone; see de Beer v de Waal, 1920 AD 299; Voet, 12.1.20; Sande, Decisiones, 2.16.1; Pothier, Obligations, para. 233; Kelly's case, supra; McCabe's case, supra. If such payments are impliedly for the benefit of the A creditor, the circumstances from which this is to be implied must be set out in the declaration. Where the creditor is entitled to demand payment of the full sum and not accept by instalments by virtue of a breach committed by the debtor, he cannot demand interest for the full period, if the agreement would have run but for the breach, in the absence of an express stipulation; see Challenor v Ferreira, 1953 (3) SA 705; Bernitz v Euvrard, 1943 AD at p. 600. If, despite the B submissions supra, respondent is entitled to allege circumstances upon which evidence can be led to support his claim for interest for the full period, such circumstances must be pleaded and the claim for interest would be a penalty and unenforceable; see Pearl Assurance Co. Ltd v Union Government, 1934 AD 560. The debtor is already penalised C because, by virtue of the breach, he is called upon to pay the purchase price in one lump sum instead of in instalments spread over a number of years. A creditor need not take advantage of any breach. He can continue to accept instalments with interest; see Challenors' case, supra at p. 706; Tillet v Willcox, 1941 AD at p. 107. But if he does, he is claiming payment now, instead of having to wait for his D instalments over a period of six years and in the absence of express stipulation, he cannot include future interest. A contract, and therefore a clause in a contract which depends upon the will of one of the parties is void for vagueness; see Williams and Taylor v Hitchcock, 1915 W.L.D. 51; Dawidowitz v van Drimmelen, 1913 T.P.D. 672; Voet, E 19.1.17; Roberts v Forsyth, 1948 (3) SA 926; Mowtem v Morris, 1929 E.D.L. 24; East Asiatic Co v Hansen, 1933 NPD 297; Adams v North, 1933 CPD 100; R v Ralotoana, 1910 OPD 37; R v Mkubene, 1910 OPD 38. It is open to the defendant to except if the exception settles the case, or part of it; see Kahn v Stuart and Others, 1942 CPD 386 at p. 391; Kruger v Navratil, 1952 (4) SA at p. 409. In F the present case, the exception has the result of settling the case in so far as the claim for £1,900 is concerned. The claim for interest is not based on the same allegations of fact. The cause of action is not the same; see du Plessis v Nel, 1952 (1) SA at p. 531. Stein v Giese, 1939 CPD at p. 338, which was a case of plus petitio is distinguishable. The authorities relied upon in Stein's case deal with G the question whether to except or strike out; see Beck, Pleadings (2nd ed.), pp. 104 - 8. There is no provision in the Natal Rules of Court for a motion to strike out. It is dealt with by way of exception; see Natal Order 11, Rules 55 and 56. In any event the Natal Rules permit an exception to part of a claim; see Order 11, Rule 55. As to Natal H decisions, see Beck, supra, p. 108. See further, Steenkamp v Laurence, 1918 CPD at p. 276.

D. J. Shaw, for the respondent: With regard to the first exception, if there is a serious difficulty because certain words in their literal meaning do not readily fit in with the scheme of the contract, the construction of the contract should be decided at the trial, not on exception; see Delmas Milling Co., Ltd v du Plessis, 1955 (3) SA at p. 455.

1956 (1) SA p702

The exception can only be allowed if it is held that, on the grounds set out in the exception, the agreement, read in the light of any evidence properly admissible in aid of construction, is incapable of supporting A the claim for £1,900; see Cairns (Pty.) Ltd v Playdon & Co., Ltd. 1948 (3) SA at p. 125; Warren v Reed and Another, 1955 (2) SA at p. 374. The arrangements for payment by instalments in the present case are not necessarily only for the debtor's benefit; see de Bruyn v Peypers, 1955 (1) SA 483. Appellant's arguments regarding the pleading of the B circumstances, are in conflict with the decision that merely the meaning of the agreement, and not the circumstances indicating that meaning nor the need for evidence thereof, need be pleaded; see Garlick v Smartt, 1928 AD at p. 87. The circumstances of the present case indicate both serious difficulty in deciding the matter on exception and also the possibility that evidence at least of the surrounding C circumstances would be admissible, on the basis of the rule laid down in the Delmas Milling Co., Ltd. case, supra, at p. 454. With regard to the contention that the recovery of interest would be the recovery of a penalty, this is not covered by the exception and the matter is one for pleading; see Pearl Assurance Co., Ltd v Union Government, 1934 D A.D. at p. 564; 1933 AD at p. 277. The claim for a penalty may be construed as a claim for damages for an amount up to the amount of the penalty; see Tucker v Malatsi, 1947 (1) SA at p. 2. As to the second exception, it is not every case where the will of one party decides the nature of the performance that the contract is void, as contracts providing for the approval of one party are well known.

Gurwitz, in reply. E

Cur adv vult.

Postea (November 30th).

Judgment

F Hoexter, J.A.:

The appellant, to whom I shall refer as the excipient, was the defendant in an action instituted in the Durban and Coast Local Division by the respondent, to whom I shall refer as the plaintiff. The excipient took two exceptions to the declaration of the plaintiff, the nature of which appears from the following portion of the judgment of BROKENSHA, J.:

'Plaintiff claims the sum of £10,403 9s. 4d. which he alleges is the full balance of the purchase price due and payable by defendant company under a G written agreement dated 17th February, 1954, whereby plaintiff sold four omnibuses...