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Vest Sources 2 (Pty) Ltd v Dennis Moss Planners & Architects (Pty) Ltd t/a Dennis Moss Partnership (9330/2010) [2011] ZAWCHC 206 (3 May 2011)

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Annexure VST1 is a letter addressed by the first defendant to the plaintiff recording its appointment as architect and the terms of such appointment. The letter is dated 2 June 2006. In it is recorded that the appointment is for the provision of Partial Standard Services and Supplementary Services as defined by the South African Institute of Architects and described under Paragraph 2, 3.3 and 6.2 of the Institute's "Client Architect Agreement', a copy of which is attached as VST2.

[6] The exception is on the basis that the paragraph as pleaded lacks clarity as to the agreement upon which the plaintiff relies, more particularly as the paragraph reveals a contradiction between the summons and the documents relied upon as the basis of the claim.

The paragraph is to the effect that the agreement was initially concluded on 14 March 2006 and was partially in writing. Although the agreement is said to have been revised on 6 June 2006, the written instruments attached, said to form part of the written portion of the agreement (VST1 and VST3), each bear the date of 2 June 2006. It is not clear from the pleading whether VST2 and VST4 form part of the agreement on 14 March_; 2 June or 6 June or any other date.

Counsel for the plaintiff submitted that it was clear from paragraph 4 that it was only the written documents attached which constituted the written portion of the agreement I do not agree. The averment in the clause is not that it is the written documents which form the written portion of the agreement, but refers to the written documents which form part of thewritten portion' of the agreement' (my underlining). The indication is therefore that there are other written documents on which the plaintiff relies.

[7] Rule 18(4) of the Uniform Rules of Court provides that every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim with sufficient particularity to enable the opposite party to reply thereto. In Tropes case the following was said:¹

'An exception to a pleading on the ground that it is vague and embarrassing involves a two­fold consideration. The first is whether the pleading lacks particularity to the extent that it is vague. The second is whether the vagueness causes embarrassment of such a nature that the excipient is prejudiced (Quinlan v MacGregor 1960 (4) SA 383 (D) at 393E-H). As to whether there is prejudice, the ability of the excipient to produce an exception-proof plea is not the only, nor indeed the most important, test - see the remarks of Conradie J in Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 298G-H. If that were the only test, the object of pleadings to enable parties to come to trial prepared to meet each other's case and not be taken by surprise may well be defeated.

Thus it may be possible to plead to particulars of claim which can be read in any one of a number of ways by simply denying the allegations made; likewise to a pleading which leaves one guessing as to its actual meaning. Yet there can be no doubt that such a pleading is excipiable as being vague and embarrassing - see Parow Lands (Pty) Ltd v Schneider 1952 (1) SA 150 (SWA) at 152F-G and the authorities there cited

It follows that averments in the pleading which are contradictory and which are not pleaded in the alternative are patently vague and embarrassing; one can but be left guessing as to the actual meaning (if any) conveyed by the pleading.' In order to comply with R18(4) the plaintiff should state with sufficient particularity precisely

what terms of the agreement were agreed orally and what terms were agreed in writing on

both 14 March and 6 June. The excipient must accordingly succeed on this ground.

The fourth ground

[8] This ground is to the effect that the first defendant is prejudiced by being required to plead to a claim which on the face of it is excluded by virtue of the written agreement on which the plaintiff relies.

[9] This ground of exception arises from the conflation of the plaintiffs claim against the first defendant and his claim against the second defendant. The claim against the second defendant is that it breached the agreement with the plaintiff in that it failed to carry out the work at the hotel and restaurant as agreed, that it failed to use materials suitable for the building works, failed to perform the work in a proper and workmanlike manner to the level of skill and diligence expected from main building contractors on projects similar to that in issue, etc. Details of the bad workmanship are furnished and the total amount claimed, namely R1 266 506, 42 is then set out in para 18 of the particulars of claim in the following manner:

18.1. Loss of profit: rooms out of order: R681 790,00

18.2. Loss of profit restaurant: R424 933,54

18.3. Complimentary wines and discounts to

unhappy guests: R63 161.00

18.4. Employment of other contractors: R84 289.80

18.5. Future employment of other contractors: R200 000,00

The first defendant is alleged to have breached the agreement with the plaintiff by:

'12.1. Failing to prepare the necessary documentation to procure offers for the execution of the building works;

12.2 Failing to obtain offers for the execution of the building works;

12.3. Failing to advise the plaintiff regarding the award of the building contract and by acting unilaterally in appointing the Second Defendant;

12.4. Failing to appoint a reputable and trustworthy building contractor.

12.5. Failing to prepare the contract documentation and to arrange for the signing thereof especially the signing of Annexure "VST4". As a consequence the Plaintiff was unable to obtain a construction guarantee equal to 12,5% of the contract sum from the Second Defendant;

12.6. Failing to provide the Plaintiff with final as built drawings, certificates, relevant technical data and guarantees from suppliers on conclusion of the building works;

12.7. Failing to use its best endeavours to limit delays to and deficiencies or defects in the execution of the building works;

12.8. Awarding the building contract to a contractor who is unable to complete the building works with the necessary skill that can be expected from contractors on projects of this nature:

12.9. Failing to regularly inspect the building works and to perform its duties in terms of the building and architect contract;

12.10. Failing to administer the building contract,

12.11. Failing to detect and prevent the defective and deficient building won< through proper supervision of the project;

12.12. Failing to advise the Plaintiff accordingly upon the detection of any defective and deficient building work;

12.13. Failing to advise the Plaintiff to withhold the payment of any money as retention for building works not completed;

12.14. Failing to compile a "snag list" of outstanding and defective work to be completed and attended to by the Second Defendant;

12.15. Attempting to sign of the project in circumstances where there were clearly still outstanding and defective work which still needed to be attended to;

12.16. Failing to conduct a final inspection of the building works with the Plaintiff and Second Defendant.'

[10] Although the plaintiff seeks to hold the first and second defendant liable jointly and severally, the amount of damages claimed from both the defendants is set out and detailed in the main in relation to the plaintiff s claim against the second defendant.

[11] VST2, on which the plaintiff relies, contains the following clauses;

'4.3.3 Failure of Materials, etc

The architect shall not be responsible for any material, component, system or workmanship failing to perform according to the claims of the manufacturers, suppliers, contractors or sub-contractors.

4.3.4 Contract Administration

The contractor, together with his sub-contractors, is directly responsible to the client for due performance in terms of the building contract. By way of administration and inspection of the works the architect shall use his best endeavours to limit delays to and deficiencies or defects in the execution of the works. The architect shall not be responsible for the foregoing, nor for the methods, techniques, sequences or procedures employed by the contractor.'

These two clauses specifically indemnify the first defendant against loss in respect of

material or workmanship by the second defendant who would be solely liable in terms of clause 4.3.4. This anomaly is not resolved in the pleadings notwithstanding the invitation by the first defendant to the plaintiff to do so. In my view, the first defendant is prejudiced by being required to plead to a claim which on the face of it is excluded by the written agreement and the exception must therefore succeed

The fifth ground

[12] This ground concerns the manner in which certain amounts claimed as damages have been set out in the particulars of claim. R18(10) provides that

'(a) plaintiff suing for damages shall set them out in such a manner as will enable the defendant reasonably to assess the quantum thereof.

The amounts in issue are items

18.2. (R424 933,54),

18.4. (R84 289,80) and

18.5. (R200 000);

as more fully referred to in para [9] above.

Item 18.2

The items making up the claim for R424 933.54 are set out in the following manner in the particulars of claim.

'Loss of profit: May to September 2007 R124 834,09

Loss of profit: May to September 2006 R112 431.53

Loss of profit: May to July 2009: R187 667.92'

Item 18.4 (R84 289.80) and Item 18.5 (R200 000)

These are recorded in the following manner:

'The Plaintiff further spent an amount of R84 289.80 to complete some but not all of the outstanding and defective building works. The Plaintiff estimates that a further R200 000,00 would be necessary to correct the bad workmanship of the Second Defendant and the remaining outstanding building works.'

[13] In Sasol Industries v Electrical Repair Engineering², in which compliance with Rule 18(10) was also in issue, the plaintiff's claim was formulated as follows:

'14. Die voormeide handelinge en versuime van die verweerder het die oorvemitting en beskadiging van die rotor tot gevoig gehad en as gevolg van die verweerder se kontrakbreuk het die eiser skade gely ten bedrae van R997 303, synde die redelike en billike herstelkoste van die rotor.'

The court held that in as much as the costs of repair to the rotor had been calculated to within R3 in a claim approaching R1 million, it was obvious that the bald allegationcontained in para 14 of the particulars of claim did not amount to compliance with Rule 18{10). ³

The court held further;

In my view, if a pleading does not comply with the subrules of Rule 18 requiring specified particulars to be set out. prejudice has, prima facie, been established Cases may well arise where a party would not be prejudiced by the failure to comply with these subrules, or where a pleader would be excused from providing the prescribed particularity because he is unable to do so. But in such cases the onus would in my view be on him to establish the facts excusing his non-compliance. The law reports about with cases which lay down this principle in respect of other Rules of Court, and the same principle applies in my view in relation to non-compliance with Rule 18.⁴

The criticism that the plaintiff's estimate that a further R200 000 would be necessary to correct the bad workmanship of the second defendant is amply justified if regard is had to the following extract in the judgment of Getz v Pahlavi⁵ quoted with approval in the Sasol Industries case⁶:

I do not think that it is possible to generalise about the particulars that should be furnished of the cost of restoration in a case like the present. It is obviously desirable that the defendant should be informed of the cost, estimated or actual, of the several items of restorative work in order that he may be in a position to tender or plead in excuse where this is possible. On the other hand, in some cases it may be unreasonable to require a separate allocation of different items of work because in the ordinary course they would be done together as a single job. If that is the position it is open to the plaintiff to say so. In the present case the plaintiff has stated that the £450 is an estimate but it is not reasonable to suppose that an estimate of the cost of the several different kinds of repair or replacement wori to be done was arrived at without itemisation. The £450 must be a lump sum. a total made up of a number of items which the plaintiff will seek to establish at the trial. The plaintiff does not set up the case that he is not in a position to analyse the sum of £450. His statement that it is an estimate does not excuse him from giving further particulars; unless it is a pure guess it must be an estimate based on a collection of detailed estimates. I find it unnecessary to decide whether the damages claimed are "general" or "special"; the substance of the matter is that the details of how the £450 is made up ought, if possible, to be in the defendant's hands at the pleading stage, and there is no reason to doubt that the plaintiff is in a position to supply them.'

From the aforegoing it is clear that the amounts relied upon as damages and the manner in which these amounts have been set out do not comply with the provisions of Rule 18(10) and the exception must therefore be sustained The reference to R200 000 as being the amount required for the future employment of other contractors is nothing more than a guess

The sixth ground: Agency

[14] The contractual relationship between the plaintiff and the first defendant is pleaded in the following manner:

'6.1. On or about 14 March 2006 the First Defendant appointed the Second Defendant to complete the building works;

6.2. The First Defendant was represented by Blumer and the Second Defendant by Harold Turner. The agreement was entered into at Stellenbosch and/or Franschoek;

6.3. In terms of the abovementioned appointment an agreement came into being between the Plaintiff and the Second Defendant.'

The case for the first defendant is that the agreement as pleaded could only have come

into being if the first defendant had acted as the plaintiff s agent in appointing the second defendant which the plaintiff has not pleaded. The issue is complicated by clause 12.3 of the particulars of claim which records one of the breaches relied on by the plaintiff as being the failure of the first defendant 'to advise the plaintiff regarding the award of the building contract and by acting unilaterally in appointing the second defendant'. That may suggest that the first defendant in so doing acted without authority.

Counsel for the plaintiff submitted that agency was to be inferred by virtue of the contents of para 12.5 being part of the terms of the agreement as pleaded by the plaintiff, namely 'the first defendant had to award the building contract to a reputable building contractor'. Agency is not to be inferred from pleadings. A party relying on agency must allege and prove its existence and the scope thereof and where a plaintiff alleges that a contact was cancelled between himself and an agent of the defendant, there must be an allegation of the pleadings that such agent had authority to conclude the contract.⁷ The plaintiff's case is that the first defendant should have utilised the draft contract, a copy of which was annexed to the pleadings as VST4, for the appointment of a building contractor but did not do so. In the circumstances it is necessary for the plaintiff to plead whether the first defendant was acting for the plaintiff and had the authority to bind the plaintiff when the contract referred to in para 6 of the particulars of claim was concluded. The exception on this ground must therefore also succeed.

[15] In the result,

1. The exceptions succeed with costs in respect of:-

1. Paragraph 4 of the particulars of claim

2. The anomaly created by clauses 4.3.3 and 4.3.4 of the agreement marked VST2 and the damages said to have been caused by the second defendant.

3. The insufficient description of the damages claimed in respect of the amounts listed in paragraphs 18.2.18.4 and 18.5 of the particulars of claim.

(d) The failure to properly plead agency in respect of acts performed by the first defendant on behalf of the plaintiff, should that be the plaintiffs case.

2. The plaintiff is granted leave to amend its particulars of claim within a period of one month of the date of this order.

R B CLEAVER

1Trope v South African Reserve Bank and Another and Two Other Cases 1992 (2) SA 208 (T).

21992 (4)SA466at468D

3At472B-C.

4Sasol Industries v Electrical Repair Engineering (supra) at 470H-I.

5' 1943 WLD 142.

6A1471H-472B.

7Ying and Another v South British Insurance Co Ltd 1957 (2) SA 195 (E)