Francis v Sharp and Others

• Jurisdiction: South Africa
• Citation: 2004 (3) SA 230 (C)

Francis v Sharp and Others
2004 (3) SA 230 (C)

2004 (3) SA p230

Citation	2004 (3) SA 230 (C)
Case No	8477/2001
Court	Cape Provincial Division
Judge	van Zyl J and H J Erasmus J
Heard	November 22, 2002
Judgment	March 6, 2003
Counsel	A P Möller for the respondent (plaintiff).; E Fagan for the first and second excipients (defendants).; No appearance for the third and fourth defendants.

Flynote : Sleutelwoorde B

Contract — Interpretation — Rules of interpretation — Commercial contract — Commercial document executed by parties with clear intention that it should have commercial operation not lightly to be held to be ineffective — Similar approach, in broad terms and mutatis mutandis, to be adopted in regard to oral commercial agreement. C

Contract — Validity of — Invalidity by reason of vagueness — Validity of agreement and question whether purported contract void for vagueness not readily falling to be decided by way of exception.

Practice — Pleadings — Exception — Generally — Save for instance where exception is taken for purpose of raising substantive question of law which may have effect of settling dispute between parties, excipient should make out very strong case before he D should be allowed to succeed.

Practice — Pleadings — Exception — Generally — Court reluctant to decide upon exception questions concerning interpretation of contract — Validity of agreement and question whether purported contract may be void for vagueness not readily falling to be decided by way of exception. E

Practice — Pleadings — Exception — On ground that pleading vague and embarrassing — Approach to be adopted — Such exception not to be allowed unless excipient seriously prejudiced if offending allegations not expunged — Validity of agreement and question whether purported contract might be void for vagueness not readily falling to be decided by way of exception. F

Practice — Pleadings — Exception — On ground that pleading vague and embarrassing — Use of unnecessary words — Use of unnecessary words which do not embarrass other side not justifying exception to pleading.

Practice — Pleadings — Exception — To particulars of claim — On ground that particulars of claim disclosing no cause of action — Terms of oral agreement G and breach thereof pleaded in particulars of claim — Reiterated that Courts reluctant to decide upon exception questions concerning interpretation of contract — Excipient having duty to persuade Court that upon every interpretation which pleadings could reasonably bear, no cause of action disclosed. H

Headnote : Kopnota

The plaintiff instituted action for damages against the defendants arising from an alleged breach of contract by the first and second defendants. The terms of the agreement were not reduced to writing. The terms were set forth in the plaintiff's particulars of claim, wherein the plaintiff alleged that she had agreed with the first and second defendants to conduct a business through the third I defendant, a company, as a joint venture, while the parties acted as equal shareholders and/or equity partners in the business so conducted. As the plaintiff was an unrehabilitated insolvent at the time, it was agreed that the first and second defendants would hold the plaintiff's share as nominees until she was rehabilitated. The plaintiff pleaded further that as 'equal equity shareholders' she and the defendants had agreed on various J

2004 (3) SA p231

matters pertaining to the conduct of the business of the company, the retention of the funds in A the company (specifically that the funds from the business would not be distributed for at least five years unless agreed), the management of the company and the appointment of the directors of the company. The plaintiff alleged that the first and second defendants had breached the agreement in that they had failed to cause registration of her agreed percentage shareholding, that they had failed to appoint her as a director of the company, and that they had paid various amounts B out of the funds of the company during the five-year period. The first and second defendants excepted to the particulars of claim on 28 grounds. Eight of the exceptions went to the alleged failure of the plaintiff to make averments necessary to sustain a cause of action, alternatively, that the particulars were vague and embarrassing. The other 20 grounds of exception were on the basis solely that the amended particulars were vague and embarrassing. C

The Court prefaced the evaluation of the exceptions by three preliminary observations: First, that save in the instance where an exception was taken for the purpose of raising a substantive question of law which might have the effect of settling the dispute between the parties, an excipient should make out a very clear, strong case before he should be allowed to succeed. Secondly, it was held that Courts were D reluctant to decide upon exception questions concerning the interpretation of a contract. An excipient had the duty to persuade the Court that upon every interpretation which the particulars of claim could reasonably bear, no cause of action was disclosed. Thirdly, the Court noted that it had been held that a commercial document executed by the parties with a clear intention that it should have commercial E operation should not lightly be held to be ineffective. The Court held that a similar approach should, in broad terms and mutatis mutandis, be adopted in regard to an oral commercial agreement. (At 237D - I.)

As to the exceptions on the ground that certain paragraphs in the particulars of claim were vague and embarrassing, the Court reiterated the approach to be adopted to an exception that a pleading is vague and embarrassing, namely that such exception should not be allowed unless F the excipient would be seriously prejudiced if the offending allegations were not expunged. To this the Court added the consideration that the validity of an agreement and the question whether a purported contract might be void for vagueness, did not readily fall to be decided by way of an exception. In evaluating the exceptions, the Court also held that the use of unnecessary words which did not embarrass the other side did not justify an exception to a pleading. (At 240E - H and 245F.) G

The Court held in conclusion that while the particulars of claim might with advantage have been framed with greater clarity, they were not found to be so wanting in clarity that the defendants should have difficulty in pleading thereto. Not one of the grounds of exception that the particulars of claim were vague and embarrassing was such that H the excipients would be seriously prejudiced if the offending pleading were allowed to stand. The plaintiff said that she had entered into an agreement with the first and second defendants. She pleaded the terms of the agreement and the manner in which she alleged that the agreement had been breached. The excipients were not prevented from putting up their version. They might deny that the parties had entered I into an agreement. If they admitted that an agreement with different terms had been entered into, they could plead their own versions of those terms. The difference between the version would have to be resolved in the light of the evidence adduced at the trial. In addition, it happened more often than not that parties enter into agreements either in writing or orally, of which the terms were ambiguous, uncertain or J

2004 (3) SA p232

disputed. While it was the function of the Court to resolve those ambiguities and uncertainties, the exception was A generally not an appropriate vehicle for resolving such disputes. The exceptions were accordingly all dismissed. (At 246I/J - 247D.)

Cases Considered

Annotations

Reported cases B

Burroughs Machines Ltd v Chenille Corporation of SA (Pty) Ltd 1964 (1) SA 669 (W): dicta at 670G - H and at 676F - H applied

Colonial Industries Ltd v Provincial Insurance Co Ltd 1920 CPD 627: dictum at 630 applied

Delmas Milling Co Ltd v Du Plessis 1955 (3) SA 447 (A): applied

Desai and Others v Greyridge Investments (Pty) Ltd 1974 (1) SA 509 (A): referred to C

Kahn v Stuart and Others 1942 CPD 386: dictum at 391 applied

Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C): dictum at 298A - C applied

Lewis v Oneanate (Pty) Ltd and Another 1992 (4) SA 811 (A): dictum at 817F applied D

Lobo Properties (Pty) Ltd v Express Lift Co (SA) (Pty) Ltd 1961 (1) SA 704 (C): referred to

Murray and Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991 (1) SA 508 (A): dictum at 514E - F applied

Oakland Nominees (Pty) Ltd v Gelria Mining and Investment Co (Pty) Ltd 1976 (1) SA 441 (A): dictum at 453A and 456G applied

Osman v Jhavary and Others 1939 AD 351: dictum at 370 applied E

South African National Parks v Ras 2002 (2) SA 537 (C) ([2001] 4 B All SA 380): dictum at 541E - G applied

Stewart v Schwab and Others 1956 (4) SA 791 (T): applied

Sun Packaging (Pty) Ltd v Vreulink 1996 (4) SA 176 (A): dictum at 186J applied

Swerdlow v Cohen and Others 1977 (3) SA 1050 (T): referred to F

Theunissen v Transvaalse Lewendehawe Koöp Bpk 1988 (2) SA 493 (A): dictum at 500D applied.

Case Information

Exceptions to plaintiff's particulars of claim. The facts appear from the judgment of H J Erasmus J. G

A P Möller for the respondent (plaintiff).

E Fagan for the first and second excipients (defendants).

No appearance for the third and fourth defendants.

Cur adv vult. H

Postea (March 6).

Judgment

H J Erasmus J:

I shall refer to the respondent in these proceedings as plaintiff, to the excipients as first defendant and second defendant, and to the third defendant as 'the company'. The fourth defendant features I only peripherally and will be referred to as such.

Mr Fagan argued the matter...