IN THE HIGH COURT OF SOUTH AFRICA 
(WESTERN CAPE HIGH COURT, CAPE TOWN)

Case no- 9330/2010

JUDGMENT HANDED DOWN ON TUESDAY, 3 MAY 2011

CLEAVER J
[1] The first defendant has raised a number of grounds of exception to the plaintiffs particulars of claim. Notwithstanding having been afforded an opportunity to remove the alleged causes of complaint by means of a notice in terms of Rule 23(1) of the Rules of Court, the plaintiff contends that the particulars of claim are not excipiable and opposes the application.

[2] The plaintiff's claim against the first defendant, a firm of architects, and the second defendant, a building contractor, is based on an agreement said to have been concluded with the first defendant which was to act as architects in respect of the rebuilding of a hotel owned by the plaintiff which had been destroyed by fire. The rebuilding work undertaken by the second defendant is alleged to have been defective and the plaintiff's claim is for the recovery of damages suffered as a result of the allegedly defective workmanship carried out by the second defendant. A break up of the amounts claimed under different headings which make up a total of the R1 266 506,42 claimed by the plaintiff as damages is set out in the particulars of claim. The first defendant is held liable on the basis, inter alia, that it failed to prepare the necessary documentation for the execution of the building works, failed to advise the plaintiff regarding the award of the building contract and by acting unilaterally in appointing the second defendant and failing adequately to supervise the work done by the second defendant. The plaintiff avers that the first defendant is liable jointly and severally with the second defendant for the damages said to have been suffered by the plaintiff.

[3] In answer to the first defendant's notice in terms of Rule 23(1), the plaintiff has given notice of its intention to amend its particulars in certain respects and although this amendment has not yet been finalised, it was agreed between the parties that I should deal with the application on the basis that the amendments would be granted.

[4] Although six grounds of exception were initially noted, the plaintiff has proceeded on only four grounds.

The First Ground
[5] The ground is in the main against paragraph 4 of the particulars of claim which reads as follows:

4.1.    Architect's appointment letter as Annexure "VST1";

[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.

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:

18.3. Complimentary wines and discounts to

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

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;

12.8. 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.

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.'

'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 further;

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:

6.2. 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

[15]   In the result,

a)	Paragraph 4 of the particulars of claim
b)	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.
c)	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.