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

• Jurisdiction: South Africa

Durban Picture Frame Co (Pty) Ltd v Jeena and Another
1976 (1) SA 329 (D)

1976 (1) SA p329

Citation	1976 (1) SA 329 (D)
Court	Durban and Coast Local Division
Judge	Booysen AJ
Heard	July 22, 1975
Judgment	September 19, 1975

Flynote : Sleutelwoorde

Practice — Pleadings — Particulars — Function of — Also function of particulars to enable party to determine what tender or payment into Court, if any should be made — B Pleading vague and embarrassing — Whether Court should allow exception or compel furnishing of particulars — Exception — Pleading vague and embarrassing — Whether Court should allow exception or compel furnishing of particulars — Damages — Action for on the ground of breach of lease by lessor — Potential loss of profits claimed — Such special damages — Particulars thereof C ordered to be furnished.

Headnote : Kopnota

The true function of particulars to a pleading are:

(1)

to limit the generality of the allegations in the pleadings;

(2)

to define with more precision the issues; and

(3)

to prevent the party asking for particulars from being D taken by surprise at the trial.

To these may be added a fourth function, namely, to furnish the party against whom a claim is made with such information as is strictly necessary to determine what tender or payment into Court, if any, should be made.

In answering the question whether the Court should allow an exception to a pleading which is vague and embarrassing rather than an order compelling particulars to be furnished, the E following general rules should be applied:

(a)

Where the particulars requested would, if supplied, cure the vagueness and embarrassment then the Court should make an order compelling the furnishing thereof rather than to allow an exception because it would then put an end to disputes about the particular pleading whereas to allow the exception would probably give rise to a further flurry of pleadings.

(b)

Where the particulars would not cure the vagueness and F embarrassment the Court should allow the exception.

(c)

In Natal, where the practice is to allow exceptions to particular paragraphs which are vague and embarrassing, the same principles should be applied in regard to particular paragraphs, i.e. where the particulars would cure a particular paragraph, the furnishing thereof should be compelled even though the exception may have to be allowed in regard to other paragraphs. Further, where the complaint is that a pleading G does not contain sufficient particulars to enable the defendant to decide on a tender or to assess the quantum of damages for the purposes of a tender or payment into Court, the appropriate remedy is to request and, if necessary, compel the furnishing of particulars.

Plaintiff had instituted action against defendants claiming damages on the grounds of defendants' breach of an agreement of lease in that they had failed to give plaintiff the use and H occupation of the premises leased. Defendants had requested certain particulars relating to the quantum of the damages but plaintiff, apart from apportioning the amount claimed between loss of profits and the increased cost of renting comparable premises, refused to furnish particulars as to how the damages were calculated. After giving notice in terms of Rule of Court 23 (1) defendants excepted to the particulars of claim on the ground that they were vague and embarrassing or, in the alternative, claimed an order compelling the furnishing of the necessary particulars.

Held, as an order compelling the furnishing of the particulars would cure the vagueness and embarrassment, that the exception should not be upheld.

1976 (1) SA p330

Held, further, that plaintiff's claim for loss of profits was a claim for special damages and, as the particulars requested in regard thereto were perfectly reasonable and were reasonably required to fulfil the true function of particulars, that plaintiff should be ordered to furnish the particulars requested. A

Case Information

Exception to a particulars of claim. The nature of the pleadings appear from the reasons for judgment.

A. Findlay, for the excipient (defendant).

G. B. Muller, Q.C., for the respondent (plaintiff).

Cur. adv. vult. B

Postea (September 19).

Judgment

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.

1976 (1) SA p331

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:

1976 (1) SA p332

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...