Mayibuye Transport Corporation v Business Connexion (Pty) Ltd

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: IT Stretch J
• Judgment Date: 27 January 2022
• Docket Number: EL753/2018
• Hearing Date: 02 December 2021
• Court: East London Circuit Local Division
• Citation: 2022 JDR 0349 (ECGEL)

Stretch J:

[1]

The defendant excepts to the plaintiff's summons on 11 grounds that it is vague and embarrassing; alternatively, that it lacks averments which are necessary to sustain an action, purportedly in terms of rule 23(1) of the Uniform Rules of this court. I will traverse and dispose of each ground seriatim:

a. The first ground

It is alleged that the plaintiff has been cited as a juristic person established in terms of the Ciskei Corporations Act 61 of 1981. Because this act no longer exists, the plaintiff's locus standi is in question, and

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as such, the claim fails to disclose a cause of action. I do not agree. The plaintiff has averred that it is a corporation and that it is a juristic person. To my mind, these averments are sufficient to establish legal standing. The defendant is at liberty to deny the averments. The invalidity of a statute as a defence should, in any event, as a matter of course be raised by way of a plea or a special plea. The first ground falls to be dismissed.

b. The second ground

The defendant claims that because the plaintiff has failed to state where the agreement on which it relies was entered into, it is unaware of the nature of the agreement on which the plaintiff relies. In support of this contention, the defendant purports to rely on rule 18(10), which in essence deals with damages for personal injury. The relevant sub-section as far as pleading is concerned, is rule 18(6), which states that a party relying on a contract shall state whether the contract is written or oral, and when, where and by whom it was concluded. The sub-section also states that if the contract is a written one, a true copy thereof or the part relied on shall be annexed to the pleading. The plaintiff has, prima facie, complied with the substance of rule 18(6) by annexing a copy of the agreement to its claim. This discloses that an agreement was entered into at Midrand on 19 October 2016. In paragraph 5 of its claim the plaintiff discloses when the agreement was entered into, and by whom the parties were represented at the time. It is pleaded that this was done in contemplation of a letter of award in terms of which the plaintiff, on 19 August 2016, appointed the defendant to deliver specified goods and services to the plaintiff. These averments are not vague and embarrassing. The second ground falls to be dismissed.

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c. The third ground

The plaintiff has pleaded that the agreement was concluded in October 2016. This is evident ex facie the copy of the agreement annexed to the claim. The plaintiff further pleaded that it was a material condition of the agreement that the contract would commence a month earlier. It is averred that it does not appear ex facie the claim, whether the contract and the agreement are the same thing, and that if they are the same, whether the contract was intended to apply retrospectively. On the other hand, it is contended on the plaintiff's behalf that on a proper construction of the particulars of claim as a whole, it is clear that the plaintiff relies on the service level agreement annexed to its claim. I am not inclined to agree. The defendant is entitled to understand why the plaintiff introduced 14 September 2016 in its particulars of claim, when the defendant was allegedly appointed on 19 August 2016, and when the parties entered into the service level agreement on 19 October 2016.

An exception that a pleading is vague and embarrassing is intended to cover the case where, although a cause of action appears in the summons, there is some defect in the manner in which it is set out, which results in embarrassment to the defendant. [1] Averments in a pleading which are contradictory (as in the matter before me), and which are not pleaded in the alternative, may well be construed as vague and embarrassing. [2] The particulars read together with the annexed agreement are at the very least vague in that they are capable of more than one meaning. [3] Simply stated, any reader of the claim together with

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the agreement will not be able to distill from these documents a clear, single meaning. I am satisfied that the commencement date of the contract is a relevant term thereof, and that the defendant may well be prejudiced if it is not clarified. I say this, because the plaintiff has alleged in its claim that the defendant has "admitted" the terms of the agreement including its obligation to supply the plaintiff with fully licenced software "for a period of three years". It is accordingly of particular significance that the ambiguity regarding the commencement of the running of the three year period is clarified. [4] The third ground serves to be upheld.

d. The fourth ground

The plaintiff has pleaded that a material term of the agreement was that the defendant (which should presumably read the plaintiff), would pay all...