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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED: NO

 

DATE: 10 JANUARY 2022

CASE NO. 21421/19

In the matter between:

MODITI CONSULTING ENGINEERS (CC)                                                            Excipient

And

TECTURA INTERNATIONAL (PTY) LTD                                                              Respondent 

In re:

TECTURA INTERNATIONAL (PTY) LTD                                                               Plaintiff

and

MODITI CONSULTING ENGINEERS CC                                                                 Defendant

JUDGMENT

Delivered:  This judgement was prepared and authored by the Judge whose name is reflected and is handed down electronically by circulation to the parties/their legal representatives by email and by uploading it to the electronic file of this matter on CaseLines. The date for hand-down is deemed to be 10 January 2022.

(

MOTHA AJ

INTRODUCTION

1.             This is an exception brought on 05 February 2020 by the Defendant against the Plaintiff’s amended particulars of claim dated 11 November 2019. The basis of the exception is that the amended particulars of claim do not disclose a cause of action.

 

2.             The first exception is to paragraph 4 of the amended particulars of claim which reads as follows:

 

“The plaintiff, is a company that provides architectural services and Defendant a company specialising in construction services to government departments were part of the companies forming a consortium”.

 

3.             The cause  of the exception to this paragraph is the plaintiff’s failure to plead that it is registered to perform architectural services in terms of section 18 of the Architectural Professions Act 44 of 2000 (the Act).

 

4.             The excipient relies on the matter of  Meredith Woods Johnson & Associates Trust v Deep Blue See Properties (Pty) Ltd 2005 JDR 0476 (SE). In that matter the Court examined Section 18(2) of the Act and stated the following:

 

“ In Amlers Precedents of Pleadings (6^th ed) at 35, the learned author, Harms, expresses the view that since it is an offence for an architect to practice if not registered, it is “safe to assume” that an unregistered person will not be able to claim remuneration for work done. Presumably on the strength of that conclusion, the learned author goes on to state that in order to recover professional fees and architect must allege and prove that he or she is registered”.[1]

 

5.             Section 41(3) of the Act provides the following:

 

“A person convicted of an offence in terms of Section 18(2), may be liable to a fine equal to double the remuneration received by him or her for work done in contravention of Section 18(2) or to a fine equal to the fine calculated according to the ratio determined for three years imprisonment in terms of the Adjustment of Fines Act, 1991.”

 

6.             Therefore, the protection of the public is of paramount importance hence under Section 19(2) a person who is applying for registration needs to demonstrate his or her competency against the standard set by the Council. Furthermore, such a person will need to pass any additional examinations that the Council might determine.

 

7.             Even with the above-mentioned hurdles having been met a person is still not guaranteed registration. Registration may be refused if, inter alia, a person was convicted of fraud or sentenced to imprisonment without an option of a fine.

 

8.             Accordingly, registration is paramount and particulars of claim that do not allege registration will not disclose a cause of action and are excipiable.[2]

 

9.             The excipient referred to a matter of Cool Ideas 1186 CC v Hubbard and Another where the Court was dealing with a non-registered home builder. The Court stated the following:

 

“Accordingly, the interpretation given by the Supreme Court of Appeal to section 10(1)(b) of the Housing Protection Act, namely that registration is a prerequisite for building works to be undertaken by a home builder, must be upheld.  Failure to register would result in the home builder being ineligible to seek consideration for work done in terms of a building agreement.”[3]

 

10.         The Respondent’s Counsel submitted that Section 18(1) deals with a person not a legal entity. The Respondent is not an architect but an entity and therefore does not have to be registered. He conceded that in order to protect the public the architects who do the work for the entity must be registered.

 

11.          I find this submission to be without merit. The need to protect the public does not change just because the entity that does the architectural work is a juristic person. The entity if it does architectural work, as is the case here, must register. Clearly the technicality that Section 18(1) does not mention a legal entity cannot be extrapolated to mean architectural entities do not have to be recognised by the council.

 

12.         Furthermore, the definition clause of the Act allows for the creation of a voluntary association. Section 25(2) of the Act deals with the recognition of a voluntary association. There is neither rhyme nor reason to think that the position would be different when dealing with a juristic person.

 

13.         I agree with the submission made by the Excipient’s Counsel that registration is a critical cog in the plaintiff’s cause of action and the absence of which renders the claim excipiable. Therefore, the first exception should succeed.

 

14.         The second exception is to paragraphs 6 and 8 of the amended particulars of claim which read as follows:

 

“6 The material express, alternatively implied, further alternatively tacit terms of the oral agreement as follows:

 

 

6.1      The consortium will at all material times operated as a group of

          difference separate legal entities not forming a partnership.

 

 

6.2          The consortium does not create a new entity, but is a vehicle in

               which the members of the consortium could secure government

               work.

 

6.3          The Defendant would be the Lead Consultant and/or Principal

               Agent of the Consortium.

 

6.4          The Defendant as the Lead Consultant and/or Principal Agent of the

               Consortium would receive work from the GPID and thereafter

               would allocate the work to the members of the consortium which

               work would be allocated accordance with expertise.

 

 

6.5          The members would attend to the work as instructed by the

               Defendant and thereafter send the invoices and Defendant will pay

               for the services rendered.”

 

  “8           The Defendant instructed Plaintiff to perform architectural

               services on the projects referred to above in paragraph 6, by sending

 

               a letter to the Plaintiff giving instructions for work to be done on a

               particular project. For ease of reference attached as annexure “T2”

               is one of the letters of appointments by the Defendant of the

               Plaintiff.”

 

15.         The second cause of the exception is that the plaintiff failed to plead the terms of the appointment, in terms of the letters of appointment and the scope, terms of reference and professional fees covered in the Service Level Agreement.

 

16.         The Respondent’s Counsel referred me to McKelvey v Cowan NO a Zimbabwean judgment where the Court held:

 

 

“It is a first principle in dealing with matters of exception that, if evidence can be led which can disclose a cause of action alleged in the pleadings, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action.”[4]

 

17.         In dealing with an exception raised against the pleading that it lacks averments necessary to disclose a cause of action, it is apt to refer to the matter of Telematrix (Pty) Ltd v Advertising Standards Authority SA where the Court stated the following:

 

“Exceptions should be dealt with sensibly. They provide a useful mechanism to weed out cases without legal merit. An over-technical approach destroys their utility. To borrow the imagery employed by Miller J, the response to an exception should be like a sword that ‘cuts through the tissue of which the exception is compounded and exposes its vulnerability.”[5]

18.         This manner of approach was endorsed in the matter of H v Fetal Assessment Centre  where the Court held the following:  

 

“Exceptions provide a useful mechanism “to weed out cases without legal merit”, as Harms JA said in Telematrix.[10]  The test on exception is whether on all possible readings of the facts no cause of action may be made out.  It is for the excipient to satisfy the court that the conclusion of law for which the plaintiff contends cannot be supported on every interpretation that can be put upon the facts.”[6]

 

19.         Rule 18(4) makes it clear that “every pleading should contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading as the case may be with sufficient particularity to enable the opposite party to reply thereto.”

20.       The “T2” letter mentioned under paragraph 8 is an appointment of the Respondent to provide professional architectural services for Nigel Secondary School. It reads as follows:

 

“RE: PROVISION OF PROFESSIONAL ARCHITECTURAL SERVICES FOR NIGEL SECONDARY SCHOOL

 

It is with great pleasure we inform you that your company is appointed for the provision of Architectural Services for the above mentioned project. The details of this appointment including; Scope, Terms of Reference, Professional Fees, etc, are covered in the Service Level Agreement.”

 

21.         The Respondent failed to plead any letters of appointment, the scope, terms of reference and professional fees  with regard to the following projects:

 

1.    Moraka Clinic -  Construction of additional consulting rooms;

2.    Sekampaneng Primary School – storm water repairs;

3.    Daveyton Main Clinic –

4.    Noordgesig Secondary School –

5.    Parkview Senior School –

6.    Lakeside Primary School –

 

 

 

 

22.         When confronted with this the Respondent’s Counsel submitted that this was a matter for evidence. I do not understand this line of reasoning because one cannot lead evidence on facta probanda which was not pleaded. The mandate and its terms need to be pleaded as facta probanda. Then compliance with the terms needed to be pleaded as well as acceptance of the term.

 

23.          It is trite that facta probatia, which are different pieces of evidence to be led to prove facta probanda, have no place in the pleadings. It is facta probanda that must be pleaded.

 

24.         In dealing with the cause of action the court in McKenzie v Farmers’  Co-operative Meat Industries Ltd defined it as follows:

 

 “…every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”[7]

 

25.            I am in agreement with the Excipient’s Counsel that the Respondent failed to plead the scope, terms of reference and professional fees or any of the terms of the Service Level Agreement. I am persuaded that the excipient has discharged its onus of proof.

 

 

ORDER

In the result, the following order is made:

1.       The two exceptions to the Plaintiff’s amended particulars of claim, as lacking averments necessary to sustain a cause of action, are upheld.

 

2.        The Plaintiff is afforded an opportunity to amend its particulars of claim,  using Rule 28, within 20 days of this Order.

 

3.        The Plaintiff is ordered to pay the Defendant’s costs of the exception on a party and party scale including costs of Counsel.

 

 

 

 

MOTHA AJ

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGH COURT, PRETORIA

 

 

Date of hearing: 09 November 2021

Date of judgment: 10 January 2022

 

 

 

 

Appearances:

 

For the Excipient: Adv. C. Van Der Merwe

Email: dominus.cvdm@gmail.com

Email:jaco@retiefinc.co.za

Tel: 082 78 33 911

(Instructed by: Pierre Retief Incorporated)

 

 

For the Respondent: Adv. N. Zwane

Tel: 072 492 7372

(Instructed by: Dube Lesley Attorney Incorporated)

Email: info@dblesleyattorneys.co.za

Tel: 011 331-0012

 

 

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