Purdon v Muller

• Jurisdiction: South Africa
• Judge: Steyn CJ, Van Blerk JA, Ogilvie Thompson JA, Botha AJA and Van Winsen AJA
• Judgment Date: 13 February 1961
• Citation: 1961 (2) SA 211 (A)
• Court: Appellate Division

D Ogilvie Thompson, J.A.:

Appellant unsuccessfully sued respondent in the Eastern Cape Division for an order declaring that a certain written agreement executed by the parties on 16th April, 1953 (which I will call 'the contract') was, by reason of respondent's breach thereof, lawfully E terminated and cancelled by appellant as from 6th November, 1958. For convenience, I hereafter refer to appellant and respondent as Purdon and Muller respectively. The decision in the Court a quo is fully reported (vide 1960 (2) SA 785) and the orders made on Muller's counterclaims are to be found at p. 800 of that report. Before proceeding to consider F the merits of the appeal, it must be mentioned that DE VILLIERS, J.P., who tried the action in the Court below, found it necessary - vide p. 790 and 791 of the report - to make adverse comment upon the detailed further particulars which had been requested on behalf of Purdon before his replication was filed. I am in full agreement with the learned JUDGE-PRESIDENT that there were grounds for criticism in this regard. It G is, no doubt, sometimes difficult to decide whether a request for further particulars would be more appropriate than an exception: that question is fully discussed by Herbstein and van Winsen Civil Practice of the Superior Courts in South Africa at pp. 263 - 269. A distinction must also be drawn between particulars required for purposes of pleading H and particulars required for the trial (see Herbstein and van Winsen, op cit. pp. 235 - 240 and Kliptown Clothing Industries (Pty.) Ltd v Marine and Trade Insurance Co. of South Africa Ltd., 1960 (1) SA 446 (W)). I am, however, not now concerned to examine either of those matters, but rather to refer to the tendency, which has increasingly revealed itself over the last decade, on the part of practitioners to abuse the further particulars procedure by making unnecessary, and unduly lengthy, requests for information before pleading. This inevitably leads to much delay; and the Court, instead of being furnished with a reasonably

Ogilvie Thompson JA

concise and self-contained statement of the respective cases of the parties, is confronted with a formidable array of papers from which the real issues between the parties can only be ascertained by a laborious process of reference and cross-reference to a whole series of separate A documents. Indeed, it is by no means rare for the further particulars to obscure, rather than to clarify, the real issues between the parties.

The present case affords an apt illustration of much of what is said above. The learned JUDGE-PRESIDENT expressed the view that none of the B further particulars asked were necessary for the purpose of this case. Certainly during the argument before this Court, only the very briefest reference was made by counsel to any of the further particulars. But it is the adverse aspects of delay and prolix interrogation which are, perhaps, most forcibly illustrated by the facts of the present case. The declaration was filed on 2nd February, 1959. C The plea and counterclaim were filed on 4th March, 1959. It was not until 14th October, 1959 - that is, more than seven months later - that the replication and plea in reconvention were filed. This intervening period was occupied with the making, and the answering, of a request for particulars and a request for further and better particulars of the plea and counterclaim, which said requests and answers together D occupy some 20 pages of the record on appeal (which, incidentally, is typed, not in treble, but in double spacing). Exclusive of annexures, the declaration, the plea, and the counterclaim occupy only nine pages of the record: the replication and plea in convention account for a further five pages. Yet the pleadings, including annexures and further particulars, comprise no less than 50 pages of the record.

E I am in full accord with the view, expressed by DAVIS, J., in Kahn v Stuart and Others, 1942 CPD 386 at p. 391, that

'the Court should not look at a pleading with a magnifying glass of too high power'.

F I also agree that minor blemishes in, and unradical embarrassments caused by, a pleading can, and should be, cured by further particulars. At the same time, pleadings should be drawn with care. A willingness to give further particulars, if so requested, is no justification for the filing of a really inadequate pleading. On the other hand, while it is of course fundamental that a party should be adequately apprised of the G case he has to meet, the ingenious inquisitor should not be permitted, under the guise of a request for further particulars of a pleading, in effect to submit a series of interrogatories to the opposite party. The increasing tendency on the part of practitioners to do, or attempt to do, just that is to be deprecated. Properly used in appropriate cases, H the further particulars procedure is a useful procedure. Its true function, however, is neither to afford a refuge to the slovenly pleader nor to be the vehicle of what in reality amounts to a fishing expedition.

Turning now to the merits of this appeal, the circumstances which led up to the signing of the contract by the parties are set out in the judgment of DE VILLIERS, J.P., at pp. 786 and 787 of the report in 1960 (2) S.A., and need not be here repeated. The learned Judge found (vide pp. 792 - 6) that the contract was one of partnership. The correctness of that finding was challenged before this Court and, since

Ogilvie Thompson JA

the respective rights of the parties are governed by the contract, I at once address myself to that question. The contract reads as follows:

'Memorandum of agreement made and entered into by and between Ross Simpson Purdon (hereinafter referred to as the said Purdon) of the one part and Gert Johannes Muller (hereinafter referred to as the said A A.J.A. Muller) of the other part.

Witnesseth:

That whereas the said Purdon is the owner of the farm Newcastle in the District of Peddie,

And whereas the said parties have agreed that the said Muller shall cultivate and plant 100 (one hundred) morgen of the said farm, the confines of which have been agreed upon, for the joint account and B benefit of the said parties hereto, upon the terms and conditions following, namely:

1. The said Purdon agrees to provide 100 morgen of land on the said farm Newcastle to be planted with pineapples.

2. The said Purdon agrees and undertakes:

(a)

to supply all machinery, draught animals, plant and implements required for the cultivation of the land, the planting, cultivation and general working of the lands so planted with pineapples and to maintain them in good repair until the 30th day of June, 1954;

(b)

C to supply cayenne planting material from his own pineries as and when available up to a total number of five hundred thousand (500,000) plants, and will further supply sufficient Queen plants to plant the land already prepared;

(c)

to bear the whole of the cost of developing, planting, cultivation and maintenance of the pineapple plantation for a period of two (2) years reckoned from the 1st July, 1952, D including wages for all employees who are employed in and about the said pineapple plantation and all cartage and carriage of all plants and materials in connection therewith;

(d)

to pay the said Muller a monthly wage of fifteen pounds (£15) per month as and from the 1st July, 1952, until the 30th June, 1954, payable monthly, provided always that if this agreement is terminated before the 30th June, 1954, this payment shall cease.

3. The said Muller agrees:

(a)

to devote the whole of his time to the due and proper work of E preparing the land, planting and cultivating of the pineapple plantation and the picking, packing and delivery of the pineapples planted in terms of this agreement,

(b)

to engage and discharge all labour required for all the purposes of the objects of this agreement,

(c)

to keep proper and sufficient books of account of all revenue and expenditure in connection with the objects and business of F this agreement and to keep all such vouchers, accounts and records thereof as may be necessary,

(d)

to keep at the cost and expense of the business the fences surrounding the plantation in good order and repair.

4. It is agreed that for the purposes of meeting the costs of labour, maintenance and all other costs and charges payable to him in terms of clauses 2 (c) and (d) the said Purdon will open an account at the G Standard Bank, Peddie, in the name of the said Purdon and will keep sufficient funds in the said account at all times for the purposes of the said business up to the 30th June, 1954. The said Muller shall operate on the account solely for the business and for no other purpose and shall at all times enter into the books to be kept by him as aforesaid, all drawings on the said account and shall retain all vouchers, receipts and statements in respect thereof and further, at the end of every month to hand to the said Purdon a statement of all cheques drawn by him with such details as the said Purdon may require.

H 5. The said Muller shall during the continuance of this agreement have the right to reside in a dwelling house on the farm Newcastle indicated by the said Purdon and to depasture, dip and water not more than twenty (20) head of cattle, on the farm in such camps as may be indicated to him by the said Purdon.

6. As and from the 1st day of July, 1954, all pineapples and all produce from the pineapple plants produced on the said land to be planted as aforesaid and any other produce therefrom shall be sold and realised for the joint account and benefit of the said parties hereto. After payment of all costs and expenses incurred after 1st July, 1954, in and about the planting, cultivation, production, sale, packing and realisation of the said pineapples, the...