Karibib Youth Development Programme v Kraatz Marine Pty Ltd (HC-MD-CIV-ACT-CON-2019/02882) [2020] NAHCMD 164 (20 May 2020);

Group

Full judgment

“ANNEXURE 11”

Practice Direction 61

IN THE HIGH COURT OF NAMIBIA

 

Case Title:

Karibib Youth Development Programme CC v Kraatz Marine (Pty) Ltd  

Case No.:

HC-MD-CIV-ACT-CON-2019/02882

Division of Court:

High Court (Main Division)

Heard/tried before:

Honourable Mr Justice B Usiku J

Date of hearing:

Not applicable

Written agreement to have the matter determined on papers filed on:  11 May 2020

Delivered on:

20 May 2020

Neutral citation:  Karibib Youth Development Programme CC v Kraatz Marine (Pty) Ltd (HC-MD-CIV-ACT- CON-2019/02882 ) [2020] NAHCMD 185 (20 May 2020)

 

 

The Order:

Having read the pleadings and documents filed of record and having considered the heads of argument filed by the parties:

 

IT IS ORDERED THAT:

 

1.    The plaintiff’s application for leave to deliver Annexure “KYD3” as an annexure to the particulars of claim, is granted.  The plaintiff is directed to deliver Annexure “KYD3” within 15 days of this order.

2.    The plaintiff’s application for condonation of the late filing of the amended particulars of claim, is granted.

3.    The defendant’s first ground of exception on the basis that the particulars of claim are vague and embarrassing, is dismissed.

4.    The defendant’s second ground of exception, on the basis that the particulars of claim do not disclose a cause of action, is upheld.

5.    The plaintiff is ordered to pay the defendant’s costs occasioned by the exception.

6.    The plaintiff is granted leave to amend its particulars of claim, if so advised, within 15 days of this order.

7.    The matter is postponed to 08 July 2020 at 15:15 for case planning conference.

8.    The parties must file a joint case plan on or before 01 July 2020.

 

Reasons:  Practice Direction 61(9)

 

 

Introduction

 

[1]           Serving before the court are two applications by the plaintiff and an exception raised by the defendant to the plaintiff’s particulars of claim.

[2]           The parties have filed their respective heads of argument. On 11 May 2020 the parties filed a written agreement to have the present matter determined on papers, without the need of oral argument.

[3]           In the first application, the plaintiff prays for leave to deliver Annexure “KYD3” as an annexure to the particulars of claim.  The plaintiff relates that when, the combined summons were served on the defendant, Annexure “KYD3” was inadvertently not annexed to the particulars of claim.  However, Annexure “KYD3” is annexed to the combined summons filed with the court.  The plaintiff now seeks leave to have the annexure delivered on the defendant.  The plaintiff has given a satisfactory explanation for the default.  This application, therefore stands to be granted.

[4]           In the second application, the plaintiff prays for condonation of the late delivery of its amended particulars of claim.  On 25 November 2019, the plaintiff filed a notice to amend its particulars of claim.  The defendant did not object to the proposed amendment.  The plaintiff was obliged to deliver the amended particulars of claim on or about 09 December 2019.  The plaintiff did not do so.  The plaintiff only delivered the amended particulars of claim on 30 March 2020.  The application by the plaintiff is not opposed.  The plaintiff has given an adequate explanation for the default.  This application also stands to be granted.

[5]           In regard to the exception, the defendant raised two grounds of exception against the particulars of claim.  The plaintiff opposes the exception raised by the defendant.

[6]           The legal principles governing exceptions were succinctly set out in Van Straten and Another v Namibia Financial Institutions Supervisory Authority and Another 2016, NR 747 SC and I shall not repeat them here.

 

The exception

[7]           In its first ground of exception the defendant contends that Annexures “KYD1” and “KYD3” (annexed to the particulars of claim) are, on face value, not ‘quotations’ as pleaded but ‘invoices’.  The defendant further argues that Annexure “KYD1”, on the face of it, reflects an invoice for accommodation provided from 23 October 2017 to 31 October 2017.  Whereas “KYD2” reflects an invoice for accommodation provided from 01 November 2017 to 15 December 2017.  In addition, the defendant contends that “KYD2” is dated 01 December 2017, which partly pre-dates the period over which accommodation services are claimed to have been rendered.  The defendant argues that the basis for that is not pleaded and is vague.  The defendant further contends that “KYD1” and “KYD2” do not reflect oral agreements or quotations in respect of accommodation, as pleaded.  The defendant therefore contends that the particulars of claim are vague and embarrassing.

[8]           In response, the plaintiff submits that “KYD1” and “KYD2” serve as illustrations of the basis upon which the oral agreement between the parties was reached.  The plaintiff further submits that the date appearing on the invoices reflect the dates on which such invoices were prepared.

[9]           Where a statement is vague, it is either meaningless or capable of more than one meaning.  It is embarrassing in that it cannot be gathered therefrom what ground is relied on by the pleader.[1]  As a general rule, a pleading is vague and embarrassing if it is unclear and ambiguous, to the extent that the opposing party is uncertain of the case he is required to meet.  In the present matter I am not persuaded that the defendant is prevented by the alleged vagueness in the particulars of claim, from clearly understanding the case that the defendant is called upon to meet.  Indeed, the defendant is able to identify Annexures “KYD1” and “KYD2” as “invoices”, as opposed to “quotations”.

[10]         In the present matter the defendant is aware of the case that the plaintiff is attempting to establish and understands the case that the defendant is called upon to meet.  I am therefore not persuaded that the vagueness that the defendant complains of has led to any embarrassment, and for that reason, the defendant’s first ground of exception stands to be dismissed.

[11]         In regard to the defendant’s second ground of exception, the defendant contends that in paragraph 5.5 of the particulars of claim, the plaintiff alleges that payment in respect of services rendered shall be effected upon presentation of an invoice by the plaintiff to the defendant.  The plaintiff does not aver to the effect that an invoice had been presented to the defendant by the plaintiff, for payment, in respect of the period of 01 November 2017 to 15 December 2017.  The defendant therefore contends that the particulars of claim in that regard does not disclose a cause of action.

[12]         I agree.  The plaintiff has pleaded that one of the terms of the oral agreement between the parties is that, the defendant shall make payment upon the presentation of an invoice by the plaintiff to the defendant.  There is no allegation in the particulars of claim that the plaintiff has presented the invoice (Annexure “KYD2”) to the defendant for payment.  In the circumstances of the present case, an allegation of the presentation of the relevant invoice by the plaintiff to the defendant for payment, is one of the facts which would be necessary for the plaintiff to prove, if traversed, in order to support the plaintiff’s right to the judgment of the court.

[13]         For the aforegoing reasons, I am of the opinion that the defendant’s second ground of exception that the particulars of claim fail to disclose a cause of action, is well-founded and stands to be upheld.

 

Conclusions

[14]         In conclusion, the defendant’s first ground of exception on the basis that the particulars of claim are vague and embarrassing is dismissed on the ground that the defendant has not established that for the purpose of its plea, it is substantially embarrassed by the vagueness complained of.

[15]         The second ground of exception on the basis that the particulars of claim do not disclose a cause of action, is upheld.

[16]         In regard to costs of suit, I am of the opinion that although the exception has only been partially successful, the ground on which the defendant has succeeded in decisive.  In the circumstances, the defendant should be granted costs.

[17]         In the result, I make the following order:

1.    The plaintiff’s application for leave to deliver Annexure “KYD3” as an annexure to the        particulars of claim, is granted.  The plaintiff is directed to deliver Annexure “KYD3”        within 15 days of this order.

2.    The plaintiff’s application for condonation of the late filing of the amended particulars of        claim, is granted.

3.    The defendant’s first ground of exception on the basis that the particulars of claim are        vague and embarrassing, is dismissed.

4.    The defendant’s second ground of exception, on the basis that the particulars of claim        do not disclose a cause of action, is upheld.

5.    The plaintiff is ordered to pay the defendant’s costs occasioned by the exception.

6.    The plaintiff is granted leave to amend its particulars of claim, if so advised, within 15        days of this order.

7.    The matter is postponed to 08 July 2020 at 15:15 for case planning conference.

8.    The parties must file a joint case plan on or before 01 July 2020.

 

Judge’s signature

 

Note to the parties:

 

 

Not applicable

Counsel:

Plaintiff

Second Defendant

 

H Ndilula

Instructed by Kadhila Amoomo Legal  practitioners, Windhoek

J Vermeulen

Instructed by Ellis Shilengudwa Inc.

Windhoek

 

 


[1] Trustco Capital (Pty) Ltd v Atlanta Cinema CC 2012 JDR 1148 (Nm) Page 1, para 16.

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