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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 19861/2019

In the matter between:

HLAPOLOSA, SOCRATES                                                                             First Plaintiff

HLAPOLOSA, NONKULULEKO                                                                Second Plaintiff

and

LISHIVA, ANDREW MBENGENI                                                                 First Defendant

LISHIVA ATTORNEYS                                                                            Second Defendant

CITY OF JOHANNESBURG                                                                      Third Defendant

REGISTRAR OF DEEDS, JOHANNESBURG                                         Fourth Defendant

FIRST NATIONAL BANK OF SOUTH AFRICA                                          Fifth Defendant

 

Heard on: 13 November 2019

Delivered on: 6 December 2019

Exception - confusion between a delictual and a contractual claim

JUDGMENT

 

DE VILLIERS, AJ:

[1.] Before me is an exception to particulars of claim.

[2.] The material pleaded facts are:

[2.1.] The plaintiffs concluded a purchase agreement with the first defendant purchasing an immovable property;

[2.2.] The first defendant, the seller, is an attorney. The second defendant is the first defendant’s firm. It is an incorporated firm of attorneys. It was not a party to the agreement of sale;

[2.3.] The agreement was concluded on 4 August 2014;

[2.4.] The purchase price was R2.3 Million, and it had to be wholly secured by a mortgage loan as a condition to the agreement;

[2.5.] The seller, the first defendant, was entitled to appoint the conveyancer, but it is not clear from the particulars of claim who was so appointed;

[2.6.] I assume that a mortgage loan was obtained, as it is alleged that the purchase price was paid. The suggestion is that this happened in the normal course, against transfer;

[2.7.] No detail of a mortgage bond has been pleaded, but the plaintiffs did join a bank as the fifth defendant, which probably indicates that it is the mortgagee;

[2.8.] The property was transferred to the plaintiffs, but the date of transfer has not been pleaded. It may well be that, and probably is, that the date of transfer was several years ago as five years have elapsed since the sale and the purchasers had taken occupation;

[2.9.] The sale agreement is a residential property agreement of sale-

[2.9.1.] The occupation date was the date of transfer;

[2.9.2.] Risk passed on transfer;

[2.9.3.] The contract was subject to a suspensive condition that the plaintiffs would obtain a mortgage loan for R2.4 Million. The additional R100 000.00 was meant to “complete” the property to add “bannisters inside and outside”. The agreement is not clear if the intention was that the seller or the purchasers would do such work;

[2.9.4.] The agreement of sales was attached to the particulars of claim. The contentious clauses in the agreement are (underlining added)-

[2.9.4.1.] “7. COMPLIANCE CERTIFICATES”

The seller is obliged to obtain at his/her own cost the prescribed certificate compliance in respect of the electrical installation in terms of Act 85/1993 (not older than 2 (two) years); a compliance certificate in respect of the electric fence (if any) in terms of Regulation 12 of the Electrical Machinery Regulations as well as gas certificate in terms of the “Pressure Equipment Regulations” 734 contained in the Government  Gazette  No 32395 (if applicable) and to furnish same to the transferring attorney prior to registration and on demand. (In the event of any specific requirements prescribed by any relevant Home Owners Association the seller hereby agrees to comply therewith without any deviation or delay)”;

[2.9.4.2.] “10. BREACH OF CONTRACT

10.1. If any of the parties in this agreement should fail to fulfil their obligations in terms of this agreement, timeously and properly, the other party shall be entitled to give notice, in writing, of such failure and to demand that the party concerned should remedy such breach of contract within 10 (ten) calendar days of the date of dispatch of such notice in writing. The aforesaid notice, in writing, will be sent by registered post, delivered by hand, or sent by fax or email to the domicilum citandi et executandi (the chosen address where the parties chose to receive post, notices, and even court process if required at a later date, even if they are not at the address or place in person all the time or fax number or email of the party concerned, as indicated on the first page. If the party concerned neglects to remedy the breach of contract after expiry of the period of 10 (ten) days mentioned, the other party shall be entitled to:

a) Demand specific performance by the other party of the terms of this agreement; alternatively to

b) Cancel this agreement and to institute proceedings against the party concerned for damages.

10.2. In the event that notice is given in terms of 10.1 above and after expiry of the 10 (ten) day period mentioned therein, notwithstanding the fact that the defaulting party fails to remedy their breach, the party giving notice elects not to cancel this agreement, then the defaulting party shall be liable for penalty interested in terms of clause 1.4 above”; and

[2.9.4.3.] “17(2) Seller to obtain occupancy certificate”;

[2.10.] On 6 July 2017 a written demand was made on behalf of the plaintiffs for the occupancy certificate. No other demands were pleaded;

[2.11.] On 29 January 2019 Georgiades AJ granted an order in the unopposed court that the seller and his firm (the second defendant) must obtain the occupancy certificate from the City of Johannesburg within 30 days and they must pay the costs. I have not seen the application, only the order attached to the particulars of claim. I point out that after seemingly having previously sought to enforce the agreement before Georgiades AJ, the plaintiffs seek cancellation of the agreement in the matter that served before me.

[3.] These simple, but incomplete facts lead to complex matters of contractual and property law. Upon receipt of the particulars of claim, the first and second defendants gave the plaintiffs the opportunity to address what they complained were vague and embarrassing averments in the particulars of claim. When these were not addressed, an exception was taken.

[4.] I address first the exception by the first defendant. The plaintiffs claim as their main relief:

[4.1.] Cancellation of the sale agreement;

[4.2.] An order that the property be transferred to the first defendant, at his cost;

[4.3.] “Damages” being-

[4.3.1.] “Repayment of the purchase price” of R2.3 Million;

[4.3.2.] The cost of renting alternate accommodation from September 2018 to September 2019 of R144 000.00;

[4.3.3.] Payment of a municipal bill that was for the first defendant’s account (incurred before transfer) of R61 821.96;

[4.3.4.] Plumbing repairs to the property of R30 682.85.

[5.] The source of the damages is alleged to be:

[5.1.] The first defendant, in terms of the agreement, had to provide the plaintiffs and the conveyancer before transfer, and failed to do so with, the following documents-

[5.1.1.] An occupancy certificate (see clause 17.2 of the agreement of sale);

[5.1.2.] A certificate of compliance in respect of electrical installation (see clause 7 of the agreement of sale);

[5.1.3.] A certificate of compliance in respect of an electric fence. It has not been pleaded that there was such a fence (see clause 7 of the agreement of sale);

[5.1.4.] A certificate (of compliance) in respect of gas. It has not been pleaded that there was such an installation (see clause 7 of the agreement of sale);

[5.2.] The first and second defendants made representations by conduct about competence, and owed the plaintiffs a duty of care to appoint a competent conveyancer (pleaded in a delictual setting);

[5.3.] The first and second defendants failed in their duties in allowing the property to be transferred without the certificates having been obtained;

[5.4.] This failure constitutes a breach of the agreement. They also breached the agreement by not complying with a demand for the occupancy certificate of 6 July 2017, complying with the court order of 29 January 2019 pertaining thereto, and an oral undertaking (no facts alleged) at some time after March 2019.

[6.] First, with respect, there is complete confusion between a cause of action based on delict and one based on contract, and these two causes of action were not pleaded in the alternative.

[7.] Second, in addition, no link has been pleaded between the failure to provide the four certificates and:

[7.1.] The plaintiffs having to vacate the property, and no other factual basis therefore has been pleaded;

[7.2.] The plaintiffs having to pay arrear municipal bills;

[7.3.] The plaintiffs having to pay plumbing repairs (in respect of unidentified plumbing defects).

[8.] Third, there is a further exception of substance. The first and second defendant contends that the plaintiffs seek restitutio in integrum, and has not pleaded such a case. The plaintiffs say that they seek damages. This does not assist the plaintiffs, with respect. There is nothing in the pleadings that suggest that the plaintiffs received performance of nil value. In Hamer v Wall 1993 (1) SA 235 (T), a judgment by Goldstein J (Eloff JP concurring) it was held that negative interesse is not an appropriate measure for seeking contractual damages for breach of contract. See too Trotman and Another v Edwick 1951 (1) SA 443 (A) at 449A-B, a judgment by van Den Heever JA (Hoexter JA, and Fagan JA concurring):

“… A litigant who sues on contract sues on contract sues to have his bargain or its equivalent in money or in money and kind. The litigant who sues on delict sues to recover the loss which he has sustained because of the wrongful conduct of another, in other words that the amount by which his patrimony has been diminished by such conduct should be restored to him.”

[9.] The plaintiffs have not pleaded a case that they suffered damages in the sum of the purchase price, should they claim to be placed in the position they would have been in had the certificates been delivered. Should the plaintiffs claim damages to be placed in the position they would have been in had the contract not been concluded, no such case has been pleaded. It would be a distinct contractual remedy. See National Sorghum Breweries Ltd (t/a Vivo African Breweries) v International Liquor Distributors (Pty) Ltd [2000] ZASCA 159; 2001 (2) SA 232 (SCA) Para 4, a judgment by Olivier JA (Hefer ADCJ, Vivier JA and Plewman JA concurring):

“… What was claimed in the first suit was restitution in the form of repayment of the purchase price previously paid by the claimant. Such a claim is not one for damages but is a 'distinct contractual remedy' (see Botha JA in Baker v Probert 1985 (3) 429 (A) at 439A - B). In the second suit damages were claimed, which is in its very essence clearly distinguishable from restitution. …”

[10.] With respect, the particulars of claim is vague to such an extent that it causes prejudice. The sae holds true with regard to the exception by the second defendant.

[11.] The particulars of claim contain vague averments about the first and second defendants making representations by conduct about professional competence, and owing the plaintiffs a duty of care to appoint a competent conveyancer for some unexpressed reason. No material facts for a delictual cause of action has been pleaded. It is not even alleged that the plaintiffs had been in contact with the second defendant.

[12.] The particulars of claim also allege a breach by inter alia the second defendant of the sale agreement, an agreement to which it was not a party.

[13.] The two purported causes of action were not pleaded in the alternative, and were confusingly intertwined to such an extent that it is unclear what the cause of action is. See Dun and Bradstreet (Pty) Ltd v SA Merchants Combined Credit Bureau (Cape) (Pty) Ltd 1968 (1) SA 209 (C) at 224G-H, a judgment by Corbett J:

“… At any rate the pleading does not make it clear  whether the claim for damages is based upon delict or breach of contract or on both and on that ground as well may be said to be vague and embarrassing (cf. Wellworth's Bazaars Ltd v Chandlers Ltd. and Another, 1948 (3) SA 348 (W)) ...”

[14.] The exception with regard to the second defendant is undoubtedly correct and must be upheld, no case has been made out against the second defendant. 

[15.] It is not an answer that a plea denying the averments and and/or raising a special plea that no cause of action has been made out, is possible. The exception procedure is designed to eliminate cases without legal merit.

Accordingly, I grant the following order:

1 The exception is upheld with costs;

2 The particulars of claim is set aside;

3 The plaintiffs are given thirty days to deliver amended particulars of claim;

4 Should the plaintiffs fail to deliver amended particulars of claim as aforesaid, the claim is dismissed with costs.

 

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DP de Villiers AJ

 

On behalf of the Plaintiffs: Adv LM Mataboge (the heads of argument were prepared by Adv M Makoti)

Instructed by: TT Hlapolosa Attorneys

On behalf of the First and Second Defendants: Adv. GM Young

Instructed by: Goërtze Attorneys 

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