Order to amend E12m claim in Galp suit
MBABANE – Big Tree and Sakhula filling stations and directors Nurane Calu have been ordered to amend their particulars of claim for over E12 million from Galp Eswatini within 30 days from yesterday.
If Calu and the other plaintiffs, Big Tree and Sakhula fail to do this within the said period, the matter would be dismissed with costs.
This is according to a judgment that was issued by Judge Cyril Maphanga yesterday. The court upheld seven of the 11 grounds of exception that were raised by Galp Eswatini (Pty) Ltd in the matter in which Calu and the other plaintiffs, Big Tree and Sakhula, are demanding E12 710 167.41 from Galp.
In the first ground of exception, Calu claimed nervous shock allegedly induced by the purported wrongful conduct of Galp in bringing malicious civil proceedings against Big Tree and Sakhula, in which he has an interest.
Judge Maphanga said given the peculiar circumstances and the way the pleadings were framed, the court did not find merit in this ground as it believed that it misconceived Calu’s claim.
The second ground, according to the court, was akin to the first one.
Galp objected to Calu’s claim and deemed it deficient, in that no allegation is set out in the supporting pleading to show that the malicious pleadings complained of were either directed or involved Calu personally. The court also did not find merit in this ground either.
Injuries
The third exception raised by Galp was that the complaint that the pleadings in respect of Claim A, where he claimed E8 050 000 for alleged injuries he suffered on his person, do not disclose a cause of action in that Calu was barred from framing a cause of action in relation to any wrong said to have been committed to Big Tree and Sakhula. This ground failed.
On the fourth ground, Galp attacked Claim A on the basis that it did not disclose a sustainable cause on another basis. Galp faulted Calu’s reliance on a breach of duty of care to find its reliability on the premise that the alleged duty of care did not flow from a legally recognised ground.
Judge Maphanga said even if the conduct might have been malicious and wrongful as against the companies, there was no legal basis set out pointing to the legal recognition of the existence of a duty of care to Calu personally or a cognisable wrong against shareholders in respect of malicious proceedings enabling the recovery of damage for the nervous shock he allegedly suffered.
“For this reason, I am inclined to find that no basis for the inference of a duty of care as alleged by the first plaintiff (Calu) exists in law and as such I find on this basis that the particulars of claim do not disclose a cause of action for the damage allegedly caused to the plaintiff,” said the judge.
In the fifth ground, Galp argued that the plaintiff’s particulars of claim as it concerned Calu did not disclose a cause of action and, as a result, was defective in that the wrongful act complained of, which was the presentation of the eviction of Big Tree and Sakhula from their premises, was not sufficiently, proximately and directly linked to the loss allegedly suffered by Calu. This ground succeeded and it was upheld.
Insufficient
The sixth ground of exception pertained to Calu on the basis that the allegations contained therein were insufficient to support the proposition of duty of care relied upon by the plaintiffs; that they amount to a bare averment of a legal conclusion or inference without the foundational facts grounding such inference.
Galp also contended that due to the deficiency, the particulars of claim failed to set out a sustainable cause of action, mainly on the basis that they were vague and embarrassing.
The judge said the essence of this complaint was a recurring issue that was linked to the issues in the second, fourth and fifth grounds. Judge Maphanga stated that he would not deal with it as a separate ground.
The seventh ground of exception pertained to implied embarrassment, like the previous ground, arising from the conflation of the allegations of negligence and the existence of duty of care on which Calu’s claim was premised, which are linked to the main objection to the pleadings.
Galp, in the eighth ground, attacked Calu’s claim as failing to support a sustainable cause of action on grounds of vagueness.
In this regard, according to the court, it was contended that the particulars of claim were deficient in so far as providing a breakdown of the computation of the medical expenses as to how they were made up and whether the pain and suffering damages were of a temporary or permanent nature are required by the rules. Judge Maphanga said this point had merit.
The ninth ground of exception was with regard to Claim B, for a total of E4 660 167.41 in costs of evicting Big Tree and Sakhula from their premises and a claim for legal costs.
Bad
The judge said he understood Galp’s objection to be the de-coupling between the description of the damages and the cause of action in so far as these two aspects were incompatible and, therefore, bad in law. The court upheld this ground.
Regarding the 10th and 11th grounds, Judge Maphanga said: “I must confess that fail to understand the substance of this exception.
“The defendant complains on account of the second and third plaintiffs (Big Tree and Sakhula) own statement of their vindication upon prevailing in the review and setting aside by the Supreme Court of the eviction of the eviction orders and the original judgment on appeal, there is a fundamental contradiction in the particulars of claim in sustaining a cause of action for malicious proceedings.”
The judge said the appropriate procedure is to apply for the striking out of the inconsistent aspect of the pleadings under the appropriate rule as opposed to exception on the basis that no cause of action has been disclosed.
The issuance of the judgment came after Calu, Big Tee and Sakhula wrote to the registrar of the High Court to impress upon the judge to deliver the judgment after it was reserved four years ago.
Calu, Big Tree and Sakhula are represented by Mangaliso Magagula of Magagula and Hlophe Attorneys while Kenneth Motsa of Robinson Bertram appeared for Galp Eswatini.