Durban Picture Frame Co (Pty) Ltd v Jeena and Another

• Jurisdiction: South Africa
• Court: Durban and Coast Local Division
• Judge: Booysen AJ
• Judgment Date: 19 September 1975
• Citation: 1976 (1) SA 329 (D)
• Hearing Date: 22 July 1975

Booysen, A.J.:

In this matter the defendants have excepted to C certain paragraphs of the plaintiff's particulars of claim as amplified by further particulars supplied thereto on the ground that they are vague and embarrassing. In the alternative the defendants have applied for an order compelling plaintiff to furnish certain further particulars.

Paras. 4 to 14 of the particulars of claim read as follows:

'4.

D First and second defendants are the owners of certain fixed property - a building which contains premises described as 83a Victoria Street, Durban, and, in partnership, they carry on the business of letting and hiring in respect of the various premises comprising the building aforementioned.

5.

During the period August-November 1974 (both months E inclusive) it became known that the then occupant of the premises, 83a Victoria Street, a doctor, was about to retire from practice and would be relinquishing his occupation.

6.

Acting upon the aforementioned knowledge plaintiff, represented therein by one Jumna Parsad Gokool, a F director of plaintiff and duly authorised to represent it, negotiated with first defendant to secure a lease for plaintiff of the said premises, 83a Victoria Street, Durban.

7.

First defendant, at all relevant times, was the agent of the partnership aforementioned and was acting within the scope of his authority.

8.

On or about 30 November 1974 and at Durban, plaintiff represented by the aforesaid Juma Parsad Gokool and G first defendant representing the aforesaid partnership, orally agreed as follows:

(a)

Plaintiff was to be given the use and enjoyment of the said premises, 83a Victoria Street, as tenant in place of the aforementioned doctor as and from when he ceased to occupy the same.

(b)

The rent agreed upon was that plaintiff was H to pay the same rental for the said premises as that paid by the said doctor.

(c)

The period of the lease was undefined.

9.

The aforesaid lease was of very considerable value to plaintiff for purposes of its business, because of the situation thereof and the access of the public to it, a fact of which first defendant in his capacity as agent was fully aware.

10.

By reason of the aforesaid agreement both first and second defendants, as partners, were bound and obliged to accord to plaintiff the use and enjoyment of the said premises for an indefinite period.

Booysen AJ

11.

Notwithstanding their obligation aforementioned, both first and second defendants on or about 9 December 1974 notified plaintiff that the premises had been let to some person unnamed and denied having reached any agreement to grant plaintiff the use and enjoyment A thereof.

12.

Defendants by their notification aforesaid have repudiated their contract with plaintiff which repudiation plaintiff now accepts, subject to its right to damages.

13.

The damages suffered by plaintiff, by reason of the aforesaid wrongful repudiation of contract, are the B sum of R20 000.

14.

Defendants are jointly and severally liable to plaintiff in the said sum of R20 000, the one paying the other to be absolved.

Accordingly plaintiff prays judgment against first and second defendants jointly and severally, the one C paying the other to be absolved, for:

(a)

R20 000;

(b)

costs of suit;

(c)

further or alternative relief.'

The defendants requested further particulars to the particulars of claim. The request in regard to paras. 13 and 14 reads as follows:

D 'Ad para. 13:

(a)

The plaintiff is requested to comply with the provisions of Rule 18 (10) and to furnish sufficient particulars as to enable the defendant to reasonably assess the quantum of the damages claimed.

(b)

Without prejudice to the generality of the above question, the plaintiff is requested to furnish particulars as to:

(i)

E how the amount of R20 000 is calculated?

(ii)

in the event of it being alleged that the said amount or portion thereof represents a loss of potential profits, particulars as to:

(aa)

the manner in which the said loss is determined;

(bb)

the period during which it is estimated that such loss will be F sustained;

(cc)

the profits derived by the plaintiff from its business during the period 30 November 1974 to the date of issue summons;

(iii)

in the event of it being alleged that the said sum of R20 000 or any portion thereof represents loss sustained by the plaintiff in respect of moneys disbursed for any G reason whatsoever, the plaintiff is requested to furnish particulars as to:

(aa)

the nature and amount of each disbursement;

(bb)

the date of each disbursement;

(cc)

the person or persons to whom each H disbursement was made;

(iv)

in the event of it being alleged that the said sum of R20 000 or any portion thereof is in respect of a head or heads of damage other than those referred to in the above sub-paragraphs, the plaintiff is requested to furnish particulars as to the material facts upon which it intends to rely in support of the damages claimed under each head.'

Plaintiff's answer to the request in regard to paras. 13 and 14 of the particulars of claim was as follows:

Booysen AJ

'(a)

The damages claimed are general damages and defendants are not entitled to particulars of the amount claimed. Plaintiff, however, without tying itself to any particular method of arriving at the figure claimed, refers to para. 8 (b) of the particulars of claim and A says that comparable premises available elsewhere will cost considerably more in rental. Plaintiff says further, that there is a loss of potential profit by reason of its being deprived of the use and enjoyment of the said premises.

(b)

The request is in the nature of interrogatories, replies to which are not reasonably required to enable B the defendants to plead. Plaintiff accordingly declines to answer the same.'

Thereafter defendants delivered a notice in terms of Rule 23 (1) requiring the plaintiff to remove the causes of vagueness and embarrassment which were stated as follows:

'(a)

the plaintiff has in answer to the defendant's request C for further particulars as to the basis of its claim for damages declined to tie itself to any particular method of computing damages therefore rendering the basis of its claim for damages uncertain;

(b)

the plaintiff refers to two heads of damage in para. 3 of the further particulars to the said D particulars of claim upon which it may rely but does not allege:

(i)

the material facts upon which it will rely in support of each head;

(ii)

the amount claimed under each head;

(iii)

whether these are the only heads of damage upon which it will rely;

(iv)

E whether it will rely upon these heads alternatively or cumulatively;

(c)

the plaintiff has declined to furnish sufficient particularity both:

(i)

in compliance with the provisions of Rule 18 (10); and

(ii)

in answer to the defendant's request therefor.'

F Plaintiff failed to respond to the notice and on 1 May 1975 defendants delivered an exception claiming that paras. 13 and 14 of the particulars of claim and para. 3 of the further particulars supplied thereto should be struck out because they were vague and embarrassing in the respects previously mentioned.

In the alternative the defendants asked for an order that G plaintiff be directed to supply the further particulars sought in paras. 3 (a), 3 (b) (i), 3 (b) (ii) (aa ), 3 (b) (ii) (bb ), 3 (b) (iii) and 3 (b) (iv).

On the following day, 22 May 1975, the plaintiff delivered a document headed: 'Plaintiff's response to defendant's notice under Rule 23 (1).'

In essence the plaintiff furnished further and better H particulars by way of the response of which the relevant parts were as follows:

'(a)

The basis of plaintiff's claim for damages is breach of contract. That basis is not rendered uncertain by the refusal to tie plaintiff to any particular method of computing damages.

(b) (i)

The material facts in support of each head of the general damages are:

A.

Comparable premises to 83a Victoria Street will cost plaintiff considerably more than the rent which defendants charged the doctor tenant, which was the rent agreed upon

Booysen AJ

between the parties for the use and occupation by plaintiff of 83a Victoria Street.

B.

Plaintiff avers that it will suffer a loss of profit which it would have earned had defendants honoured their bargain.

C.

Any further facts are matters of A evidence and defendants are not entitled, at this stage, to be informed of that evidence.

(i...