Bentel Associates International (Pty) Ltd and Another v Bradford Corner (Pty) Ltd and Another In re: Bradford Associates International (Pty) Ltd and Another v Bentel Associates International (Pty) Ltd and Another (11/47695) [2013] ZAGPJHC 45 (15 March 2013)

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[2013] ZAGPJHC 45
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Bentel Associates International (Pty) Ltd and Another v Bradford Corner (Pty) Ltd and Another In re: Bradford Associates International (Pty) Ltd and Another v Bentel Associates International (Pty) Ltd and Another (11/47695) [2013] ZAGPJHC 45 (15 March 2013)

NOT REPORTABLE
SOUTH GAUTENG HIGH COURT
JOHANNESBURG
CASE NO
:
11/47695
DATE:15/03/2013
In the matter between:
BENTEL ASSOCIATES INTERNATIONAL
(PTY)
LTD
.........................................................................................
First
Excipient
GROUP
FIVE HOUSING (PTY) LTD
......................................
Second
Excipient
and
BRADFORD
CORNER (PTY) LTD
.........................................
First
Respondent
THE BODY CORPORATE OF THE
VILLA
BROSIA SCHEME
…..............................................
Second
Respondent
In re
BRADFORD ASSOCIATES INTERNATIONAL
(PTY)
LTD
..............................................................................................
First
Plaintiff
BODY
CORPORATE OF VILLA BROSIA SCHEME
................
Second
Plaintiff
and
BENTEL ASSOCIATES INTERNATIONAL
(PTY)
LTD
First Defendant
GROUP
FIVE HOUSING (PTY) LTD
Second Defendant
J U D G M E N T
N F KGOMO, J
:
INTRODUCTION
[1] The first and second
excipients, who are the first and second defendants in the main
action herein, excepted to the first and
second respondent’s
(first and second plaintiffs in the main action) particulars of
claim; the general basis of such exceptions
being that the
plaintiffs’ particulars of claim are vague and embarrassing
and/or lack averments which are necessary to sustain
an action and/or
which should enable them to plead to such particulars of claim.
[2] For considerations of practicality and/or ease of reference and
clarity, I will refer to the parties herein as in the main
action.
[3] It is common cause between
the parties that on or about 11 May 2004 and in Johannesburg,
Gauteng, South Africa, an entity named
Bedford Square Properties
(Pty) Ltd (“
Bedford
Square Properties
”),
operating from CMA Corporate Park, 234 Alexandra Avenue, Halfway
House, duly represented by one Budwa Abrosie; and the
first
defendant, duly represented by Rob Bray, concluded a written
agreement which I will refer to hereinafter as “
the
architect agreement
”.
It is marked Annexure “A” in the papers herein.
[4] The relevant or material
express,
alternatively
,
tacit,
further alternatively
implied terms of the architect agreement were as follows:
The first defendant was
appointed as project architect and principal agent in respect of
the construction of 40 duplex attached
and semi-attached
residential units (the sectional titles) with concomitant external
works, boundary fences and services on
the site (“
the
works
”).
The first defendant’s
professional services would be rendered in accordance with the
client/architect agreement published
by the Institute of South
African Architects. It is attached to the papers herein as Annexure
“B. The scope of work
embraced by the architectural
appointment would include the design stage, technical
documentation, contract administration
and inspection of the works,
i.e. stages 1 to 5 contained in the said client/architect
agreement.
Site meetings and inspections of the works would generally be held
once every week. The first defendant could, at its discretion,

increase the frequency of meetings and inspections to suit the
reasonable requirements of the project.
The first defendant would, in the execution of its duties as
architect and principal agent in terms of the architect agreement,

adhere to the general level of skill and diligence possessed and
exercised at the time by members of the architect profession.
The first defendant’s designs and specifications would
conform to sound architectural practice and would be fit for
purpose.
The first defendant would perform its duties as principal agent
with reasonable care, diligence and skill.
[5] A copy of the client/architect agreement published by the
Institute of South African Architects, which was incorporated by

reference in Annexure “A” marked Annexure “B”,
defined and elaborated upon the first defendant’s
obligations
and services in terms of the architect agreement as follows:
Stage 3: Design development: Develop the design concept in
sufficient detail to define the construction of the building.
Stage 4: Technical documentation: Prepare construction
documentation (being graphic representations including plans,
sections,
elevations, site plans, construction details, service
co-ordination information, schedules and such other details and
descriptions
as are within the reasonable competence of any
architect which are sufficient to indicate the scope of the work
executed or
intended to be execute according to the building
contract) and co-ordinate the documentation with the work designed
by consultants
and specialists.
Stage 5: Contact
administration and inspection: Administer and perform the duties
assigned to the first defendant in the building
contract (“
building
agreement
”).
[6] The abovementioned building agreement was concluded in
Johannesburg on 29 July 2004 between Bedford Square Properties, still

represented by Budwa Abrosie and the second defendant, this time
represented by Frank Enslin. It is marked Annexure “C”

in the papers herein.
[7] The relevant express,
alternatively
tacit,
further alternatively
implied terms of the building agreement were among others as follows:
The second defendant would execute the works, including the
installation of timber trusses and clay or cement roof tiles, and

Bedford Square Properties would make payment for the works [clause
2.1, read with clause 41.2.1].
Bedford Square Properties would appoint the first defendant as
principal agent and warranted that the first defendant would
have
full authority and obligation to act in terms of the building
agreement [clauses 5.1 and 5.1.1, read with clause 41.1.2].
The second defendant would comply with all laws of the Republic of
South Africa and all regulations and bylaws of local or
other
authorities having jurisdiction regarding the execution of the
works [clause 7.1, read with clauses 1.1 and 41.2.9].
On being given possession of the site, the second defendant would
commence the works and proceed with the due skill, diligence,

regularity and bring the works to a stage where, in the first
defendant’s opinion, the works are free of all defects
(being
aspects of the works that in the opinion of the first defendant is
not according to the building agreement) [clause
15.3.3, read with
clause 1.1].
The first defendant would inspect the works and would issue a
certificate of final completion to the second defendant if, in
its
opinion, the works are free of all defects [clause 26.0, read with
clause 1.1].
A certificate of final
completion would be conclusive evidence as to the sufficiency of
the works and that the second defendant’s
obligations, as set
out in paragraphs 9.1 and 9.2 above, have been fulfilled other than
for defects that a reasonable inspection
of the works by the first
defendant would not have revealed before the issue of the defects
list by the first defendant, defining
the defects which would have
to be rectified to achieve final completion (“
latent
defects
”)
[clause 26.6, read with clauses 26.2.2 and 1.1].
The latent defects liability
period for the works would commence at the start of the
construction period and end 5 years from
the date of achievement of
final completion, as set out in paragraph 9.6 above. Defects that
appear up to the date of final
completion would be addressed in
terms of clauses 24.0 to 26.0 of the building agreement.
The second defendant would be
obliged to rectify all latent defects that are revealed after the
date of final completion, as
set out in paragraph 7.6 above, and
before the end of the latent defects liability period, as set out
in paragraph 7.7 above
on demand.
The first defendant would issue
an interim payment certificate (which would be based on a valuation
prepared within 7 calendar
days before the stated date) every month
until the issue of the final payment certificate [clause 31.1].
The second defendant would
cooperate with and assist the first defendant in the preparation of
the payment claim information
for an interim payment certificate by
providing to the first defendant all relevant documents and
assessments of quantified
amounts of work completed [clause 31.2].
The first defendant would issue
each interim payment certificate to the second defendant with a
copy to Bedford Square Properties
by no later than the 3
rd
day of the month [clause 31.3, read with clause 41.5.3].
Bedford Square Properties would pay to the second defendant the
amount certified in an interim payment certificate within 7

calendar days of the date for issue of the interim payment
certificate. Payment would be subject to the second defendant

giving Bedford Square Properties a tax invoice for the amount due
[clause 31.9].
The first defendant would prepare a final account for submission to
the second defendant within 90 working days after the date
of
practical completion. The second defendant would cooperate and
assist the first defendant in the preparation of the final
account
by timeously supplying all relevant documents on request [clause
34.1].
The second defendant would be
given the final account for acceptance within 45 working days of
receipt thereof. On written
acceptance or should the second
defendant not object to the final account with good reason within
the said period, the first
defendant would issue the final payment
certificate within 7 calendar days [clauses 34.4 and 34.5].
Bedford Square Properties would
pay to the second defendant the amount certified in the final
payment certificate within 7 calendar
days of the date of issue of
the final payment certificate. Payment would be subject to the
second defendant giving Bedford
Square Properties a tax invoice for
the amount due [clause 31.9].
Neither Bedford Square Properties nor the second defendant would
assign or cede their rights or obligations without the written

consent of the other party, which consent would not be withheld
without good reason [clause 19.1].
[8] In paragraph 7A of their particulars of claim the plaintiffs
averred as follows:
“
On
a proper construction of the architect agreement only clause 2.0
(including clauses 2.1 to 2.5) of the client/architect agreement,

read with the relevant definitions contained in clause 1.2 of the
client/architect agreement was incorporated in and forms part
of the
architect agreement.
”
[9] This is one of the averments in the plaintiffs’
particulars of claim which triggered the exceptions.
[10] Another aspect that also
served as a trigger for the exceptions is the averment by the
plaintiffs in paragraph 10 of their
particulars of claim about an
oral or verbal appointment by and between Bedford Square Properties,
duly represented by Budwa Abrosie,
of the first defendant as the
principal agent in terms of the building agreement; which appointment
was allegedly accepted orally
by the first defendant duly represented
by Rob Bray.
[11] The defendants contest or deny the existence of this latter
agreement.
[12] According to this disputed agreement the duties of the first
defendant as principal agent would include that:
The first defendant would from time to time inspect the works to
give the second defendant interpretations and guidance on
the
building standards and state of completion of the works that the
second defendant would be required to achieve for practical

completion (being the stage of completion where, in the opinion of
the first defendant, completion of the works has substantially
been
reached and could effectively be used for the purposes intended
[clause 24.1.1, read with clause 1.1 of Annexure “C”].
Where, in the opinion of the first defendant and after inspecting
the works, the works have reached practical completion, the
first
defendant would issue a certificate of practical completion to the
second defendant [clauses 23.3.1 and 24.4.1 of Annexure
“C”].
Within 7 calendar days of the date of practical completion the
first defendant would issue to the second defendant a works

completion list defining the outstanding work and defects apparent
at the date of practical completion to be completed or rectified
to
achieve works completion [clause 25.1 of Annexure “C”].
Where, in the opinion of the first defendant and after inspecting
the works, the works completion list has been satisfactorily

completed, the first defendant would issue a certificate of works
completion to the second defendant [clauses 25.2.1 of Annexure

“C”].
At the end of the defects liability period (being midnight 90
calendar days from the date of works completion) the first

defendant would forthwith inspect the works and where the works:
12.5.1 has reached final completion (being the stage of completion
where, in the opinion of the first defendant, the works are
free of
all defects) the first defendant would forthwith issue a certificate
of final completion to the second defendant;
has not reached final completion the first defendant would
forthwith issue a defects list to the second defendant defining

the defects, which have appeared during the defects liability
period, to be rectified to achieve final completion
[clauses 26.1 and 26.2 of Annexure “C”].
12.6 Where, in the opinion of
the second defendant, the defects list has been completed, the second
defendant would notify the
first defendant who would inspect within 7
calendar days of receipt of such notice. Where, in the opinion of
the first defendant,
the defects list:
has been satisfactorily completed the first defendant would
forthwith issue a certificate of final completion to the second

defendant;
12.6.2 has not been satisfactorily completed or where further
defects have become apparent, the first defendant would forthwith

identify such items on the updated defects list and inform the second
defendant thereof. The second defendant would repeat the
procedure,
as set forth in this subparagraph.
[13] It is the plaintiff’s case that pursuant to the
conclusion of the building agreement, Bedford Square Properties gave

possession of the site to the second defendant who commenced the
works.
CESSION OF RIGHTS
[14] According to the
plaintiff’s further, on or about 9 June 2006, Bedford Square
Properties and the first plaintiff concluded
a written sale agreement
in terms whereof Bedford Square Properties sold to the first
plaintiff as a going concern, among others,
portion 4 of the site on
which the erection of duplex units set out in paragraph 4.1 of this
judgment was about to take place (“
the
Sale Agreement
”).
[15] Bedford Square Properties ceded and delegated its rights and
obligations in terms of the contracts entered into between itself
and
suppliers, building contractors, professionals and agents in respect
of the erection of those duplex units to the first plaintiff.
[16] The effective date of this sale agreement would, for all
intents and purposes, be deemed to be 31 March 2006, notwithstanding

the date of signature of the sale agreement.
[17] The architect agreement and
building agreement were two of the agreements referred to above.
[18] According to the plaintiffs further, the first and second
defendants were informed during or about May 2006 of the intended

cession and delegation of the rights and obligations in terms of the
architect and building agreements.
[19] It is common cause that the excipients/defendants are denying
the above allegations as well.
[20] On the basis of the above
contestations by the defendants, the plaintiffs amended their
pleadings and aver in their particulars
of claim that:
20.1 The first defendant, duly
represented by a duly authorised representative (no names furnished),
consented orally,
alternatively
tacitly to the said cession and delegation during or about June 2006,
which consent occurred at or near Johannesburg, Gauteng.
[21] In substantiation of the
above the plaintiffs averred in their particulars of claim
(paragraphs 12.6 (12.6.1 to 12.6.10 thereof))
that:
The second defendant cooperated with and assisted the first
defendant in the preparation of interim payment certificate 18,

which were issued by the first defendant on behalf of the first
plaintiff, by providing the first defendant with all relevant

documents and assessments of quantified amounts of work completed.
The first defendant issued interim payment certificate 18 in
respect of the works on behalf of the first plaintiff.
The first plaintiff made payment to the second defendant of the
amount certified in interim payments certificate 18 in the
sum of
R288 500,94.
The second defendant cooperated and assisted the first defendant in
the preparation of the final account by supplying all relevant

documents to the first defendant.
The first defendant issued the final account on behalf of the first
plaintiff, which was approved by the second defendant,
on behalf of
the second defendant.
The first defendant issued the final payment certificate in respect
of the works on behalf of the first plaintiff.
The second defendant gave the first plaintiff a tax invoice for the
amount due as certified in the final payment certificate.
The first plaintiff made payment to the second defendant of the
amount certified in the final payment certificate in the sum
of
R139 834,24.
The second defendant proceeded with the works and brought the works
to final completion.
The first defendant issued certificates of final completion on
behalf of the first plaintiff to the second defendant.
[22] The plaintiffs continue to state that:
The second defendant, duly
represented by a duly authorised agent or agents, and with full
knowledge of the requirement in clause
19.1 of the building
agreement (as set out in paragraph 7.16 above) that neither Bedford
Square Properties nor the second defendant
could assign or cede
their rights or obligations in terms of the building agreement
without the written consent of the other
party, waived by conduct
(as set out in one or more of the subparagraphs of paragraph 19
hereof) the requirement of written
consent and which conduct was
inconsistent with an intention by the second defendant to enforce
the said requirement.
[23] It is on the above basis
that the plaintiffs contend that the second defendant, duly
represented by a duly authorised agent,
consented orally,
alternatively
tacitly, to
the cession and delegation as set out above.
[24] With the above introductory remarks in mind the plaintiffs aver
in their particulars of claim that:
“
Pursuant
to the conclusion of the architect agreement, which incorporated
clauses 2.3 and 2.4 of the client/architect agreement,
the first
defendant:
designed the following roof
covering system for the sections and issued construction
documentation in respect thereof to the
second defendant,
alternatively
,
the second defendant’s sub-contractor:
13.1.1 Mazista ‘Vineyard’ clay roof tiles on fibre
cement sheeting on 50 x 76 mm purlins and 114 x 76 mm rafters;
the said Vineyard system comprised a Nutec ‘Bigsix’
corrugated fibre cement roof sheet overlaid by clay tiles;
the purlin spacing would be 1 200 mm.
13.2 inspected the roof
covering system in terms of the building agreement as set out in
paragraph 10 above.
”
[25] The paragraph 10 mentioned
in the above quote is set out in paragraphs [9] and [11] of this
judgment.
[26] In the circumstances and/or consequently, the plaintiffs aver
that the second defendants sub-contractor subsequently constructed

the roof covering system as set out in paragraph [24] above, in
accordance with the first defendant’s said designs and
construction
documentation.
SPECIFICS OF THE PLAINTIFFS’ CLAIMS AGAINST THE DEFENDANTS
[27] For completeness sake, I set out the specifics of the
plaintiffs’ four claims against the first and second
defendants:
Against the first defendant
Claim A
27.1.1 That the first defendant breached its obligations in terms of
the architect agreement by:
27.1.1.1 designing and issuing
construction documentation in respect of the roof covering system
without exercising the general
level of skill and diligence possessed
and exercised by members of the architect profession, in that:
(a) due to the manner in which
the tiles were laid on the “
Bigsix
”
sheets and the fact that clay tiles by nature are not uniform, point
and line loads acted on the fibre cement sheets which
caused the
cracking of the “
Bigsix
”
sheets when traffic is introduced onto the roof;
the cracking of the “
Bigsix
”
sheets adversely affected the waterproofing requirement of the said
roof covering system;
the said roof covering system was accordingly not appropriate and
fit for the purpose for which it was specified and designed;
the said roof covering system has become unsafe due to water damage
to the roof trusses caused by damage to the roof covering
system;
27.1.1.2 designing and issuing construction documentation in respect
of a roof covering system which was not in accordance with
sound
architectural practice and in any event not fit for purpose, in that:
(a) the roofs could not withstand reasonable traffic;
(b) reasonable traffic caused
point and line loads on the fibre cement sheets which caused the
cracking of the “
Bigsix
”
sheets which adversely affected the water proofing requirement of the
roof covering system. The roof covering system accordingly
became
unsafe due to water damage to the roof trusses.
27.1.1.3 the plaintiffs accordingly claimed payment of the sum of R4
336 560,00, being the sum of R3 804 000,00 plus VAT.
Claim B
27.1.2 That the first defendant
issued certificates of practical and final completion to the second
defendant, in that process failing
to perform its duties as principal
agent with reasonable care, diligence and skill, thereby breaching
its obligations in terms
of the architect agreement by failing to
inspect the roof voids to ensure that completion of the roof voids
has substantially been
reached and the roof voids are free of all
defects; as well as by issuing certificates of practical completion
under circumstances
where completion of the roof voids has not been
substantially reached and a reasonable architect would not have
issued same.
The plaintiffs’ claim R544 000,00 plus VAT in damages,
totalling R620 160,00.
Claim C
Alternative to Claim A, the first plaintiff averred that in the
event that it is found that the first defendant is not liable
to
the first plaintiff for the costs of replacing the roofs, then the
second plaintiff claims against the first defendant
the same sum
of R4 336 560,00 (as claimed in Claim A) because:
27.1.3.1 the second plaintiff is
entitled in terms of section 36(6) of the Act capable of suing in its
corporate name in respect
of any damage to the common property, any
matter in connection with the land or building on the site for which
the second plaintiff
is liable or for which the owners of sections in
the scheme are jointly liable, and any matter arising out of the
exercise of any
of its powers or the performance or non-performance
of any of its duties under the Act.
The plaintiffs averred that
the first defendant breached its duty of care as well as been
negligent in that, even though it
foresaw,
alternatively
,
should reasonably have foreseen that the failure to meet its
duties would or could result in the roof covering systems of
the
sections not being waterproof; as well as it ought to have
reasonably specified and designed a roof covering system that

would be waterproof and safe, it did not.
27.2
Against the second
defendant
Claim D
That the second defendant breached the terms of the building
agreement by failing to comply with Regulation L1 of the National

Building Regulations made in terms of section 17(1) of the
National Building Regulations and Building Standards Act 1977
(Act
103 of 1977).
The second defendant is further accused of breaching the terms of
the building agreement in that the roof as constructed
could not
resist the forces to which it was expected to be subjected to.
It was the plaintiffs’
further contentions in respect of this claim, that because the
first defendant issued a certificate
of final completion to the
second plaintiff on or about 16 August 2007 confirming that the
works were free of any defects
and that at the time of the issuing
of such certificate of final completion the roof covering system
contained latent defects;
the second defendant was in the premises
and in terms of the building agreement obliged to rectify the
latent defects by
removing the existing roof covering system and
brandering, strengthening the existing trusses with additional
brandering
as well as by installing new brandering under the
membrane and concrete tiles.
DEFENDANTS’ EXCEPTIONS
The first defendant’s first exception
[28] The first exception
relates to an attempt by the plaintiffs to exclude from operation
certain written terms of the architect
agreement which the plaintiffs
contend was the written agreement concluded between Bedford Square
Properties and the first defendant.
The terms that the plaintiffs
seek to exclude are those:
28.1 Limiting or excluding the first defendant’s liability.
Requiring written consent for any cession, transfer or assignment
of rights or obligations.
Limiting the parties’ ability to amend and/or vary the
architect agreement unless in writing.
[29] The plaintiffs are accused
of doing so by or in the pleading contained in paragraph 7A of their
particulars of claim which
I quoted in paragraph [8] of this
judgment.
The second exception
[30] This exception relates to the plaintiffs’ attempts to
rely upon the subsequent oral agreement relating to the appointment

of the first defendant as a principal agent. It is common cause that
the first defendant has already been appointed as such in
terms of
the written architect agreement.
[31] According to the defendants what the plaintiffs contemplate in
their particulars of claim are two separate agreements for
one
appointment and also attracts the parole evidence rule that precludes
the plaintiffs from relying on an oral agreement in the
face of an
express written term.
See:
KPMG
v Securefin Ltd
2009
(4) SA 399
(SCA) at 409G.
The third exception
[32] The third exception relates
to the plaintiffs’ alleged attempt to overcome an express
provision of or in the architect
agreement to the effect that neither
party shall assign, sublet, or transfer its interests in the
architect agreement without the
written
consent of the other. That is clause 4.6 of the client/architect
agreement. The plaintiffs are accused of doing to by pleading
an oral
alternatively
tacit
consent by the first defendant to that cession of rights under the
architect agreement from Bedford Square Properties to
the first
plaintiff.
[33] The first defendant contends that insofar as the plaintiffs’
reliance on the subsequent oral and/or tacit agreement
purports to
vary the express terms of the architect agreement, they are not
permitted to do so as the non-variation clause contained
in the
architect agreement in effect curtailed their freedom to do so.
[34] The first defendant called
itself among others on
S
A Sentrale Ko-op Graan Maatskappy Bpk v Shifren
1964 (4) SA 760
(A);
Brisley
v Drotsky
2002 (4) SA
1
(SCA) and Christie,
The
Law of Contract in South Africa
,
6
th
ed, p 464.
[35] They further rely on
Guman
v Latib
1965 (4) SA
715
(AD) at 722 for their contention on this ground that absent
written consent as required by the applicable written agreement,
there
is no consent.
Fourth and fifth exceptions
[36] These two exceptions are directed at an interpretation of a
limitation clause contained in the client/architect agreement,
which
has been incorporated into and arguably forms part of the architect
agreement.
[37] Clause 4.3.4 of that clause
provides that the contractor, together with his sub-contractor, are
directly responsible to the
client for due performance in terms of
the building contract. The architect is, by way of administration,
and inspection, called
upon to use his best endeavours to limit
delays to and deficiencies or defects in the execution of the works.
However, in terms
of the above, the architect
shall not be
responsible for the aforegoing; neither should he be responsible for
the methods, techniques, sequences or procedures employed
by the
contractor.
[38] Clause 4.3.6 thereof
provides that no claim whatsoever shall be enforceable by the client
against the architect arising out
of or in respect of any services
rendered by the architect in terms of the architect agreement or
concerning the carrying out of
the works
after five years have
elapsed from the date of practical completion of the works or
suspension, postponement or termination in terms
of clause 8.5
thereof
(my underlining).
[39] In the face of the
plaintiffs’ contention that the first defendant had failed to
perform its duties by among others
failing to inspect roof voids to
ensure that they are free of or from defects as well as issuing
certificates of final completion
in circumstances where the roof
voids were not free of any defects, the first defendant’s
contention is that clause 4.3.4
of the client/architect agreement
expressly excludes the first defendant’s responsibility for any
deficiencies or defects
in or during the execution of the works.
Furthermore, since the last certificate of practical completion was
issued on 16 February
2006 and the plaintiffs’ action against
the defendants was instituted only on 13 December 2011, the requisite
five years
before the expiry of which the effects or implications of
the certificates of practical completion should be challenged, had
already
elapsed, thus barring the plaintiffs from suing the first
defendant on that basis.
[40] Similarly, action against the second defendant according to the
defendants should or stand to be excepted upon for the same
reasons.
THE APPLICABLE LAW
[41] When courts consider exceptions, no additional facts may be
adduced by either party and the court must assume that the facts

alleged in the particulars of claim are correct.
Viljoen
v Federated Trust Ltd
1971 (1) SA 750.
Stewart
v Botha
[2008] ZASCA 84
;
2008 (6) SA
310
(SCA) at para
[4]
.
The question that the court must
consider is whether a defect appears
ex
facie
the pleadings.
See:
Barclays
National Bank Ltd/Thompson
1989
(1) SA 547
(A) at 553F.
[42] Pleadings must contain
clear and concise statement of the material facts upon which the
pleader relies for his claim to succeed.
These facts must be set out
with sufficient particularity to enable the opposite party to reply
thereto. This is in keeping with
Rule 18(4) of the Uniform Rules of
Court. With regard to the material facts relied upon, the pleader
must set out the
facta
probanda
upon which it
relies upon for its cause of action.
McKenzie v Farmers’
Co-operative Meat Industries Ltd
1922 AD 16
at 23.
Makgae v Sentraboer
(Ko-operasie) Bpk
1981
(4) SA 239
(T) at 245D-E.
[43] There is no exhaustive test
of what constitutes “
sufficient
particularity
”.
The question should be answered in relation to the circumstances of
each case. However, it is incumbent on a plaintiff
to plead a
complete cause of action which identifies the issues upon which the
plaintiff seeks to rely upon and on which evidence
will be led, in an
intelligible and lucid form which allows the defendant to plead to
it. A pleading becomes excipiable because
no possible admissible
evidence led on the pleadings can disclose a cause of action.
See:
Imprefed
(Pty) Ltd v National Transport Commission
1993 (3) SA 94
(A) at 107C-H.
Jowell
v Bramwell-Jones
1998
(1) SA 836
(W) at 902H-I.
Nel
NO v McArthur
2003 (4)
SA 142
(T) at 146/8.
[44] An exception on the basis that a pleading is vague and
embarrassing is supposed or intended to cover cases where, although
a
case appears in the claim, there is nevertheless some defect or
incompleteness in the manner in which it is set out, or aptly
put,
how it was formulated, which results in embarrassment to the
defendant. This kind of exception is not directed at a particular

paragraph within a cause of action, but goes to the whole cause of
action.
Trope
v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269H.
Lockhat
v Minister of Interior
1960 (3) SA 765
(T) at 777E.
Also:
Jowell
v Bramwell (supra)
.
[45] The mere fact that it may
be possible to plead to particulars of claim that may be read or be
lending themselves to be read
in a number of ways by simply denying
the allegations does not mean that it is not excipiable as being
vague and embarrassing.
Where an exception is successfully taken to
particulars of claim on the basis that they disclose no cause of
action, it is appropriate
to order that the pleading be set aside and
that the plaintiff be given leave, if the facts and circumstances so
dictate or if
so advised, to file an amended pleading within
specified time frames.
See:
Group
Five Building Ltd v Government of the Republic of South Africa
(Minister of Public Works and Land Affairs)
[1993] ZASCA 4
;
1993 (2) SA 593
(A) at 602-603.
Trope
v S A Reserve Bank (supra)
at
211A-D.
[46] The legal principles for
exceptions were enunciated among others in the then Appellate
Division of South Africa in
Sun
Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA 176
(A) as follows at 183E, 183I-184F and 186I-187A:
“[A]
n
excipient has a duty to persuade the court that upon every
interpretation which the pleadings in question, and in particular the

document on which it is based, can reasonably bear no cause of action
… is disclosed; failing this the exception ought not
to be
upheld … Problems of contractual interpretation are often
before the courts … The basic principles are, for
the most
part, clear. The determining factor is the intention of the parties.
This is ascertained from the language used, read
in its contextual
setting and in the light of any admissible evidence … Broad
speaking there are three classes of such evidence.
One is of
background facts. Another relates to surrounding circumstances. The
third is evidence of what passed between the parties
on the subject
of the contract. Only the first and second need be considered. It
would seem that evidence of the former, i.e.
background facts, is
part of the context and as such is always admissible. It has been
described as encompassing the ‘genesis
of the transaction’
or its ‘factual matrix’. Its aim is to put the court ‘in
the armchair of the author(s)
of the document … surrounding
circumstances, on the other hand, is only justified in cases of
uncertainty or ambiguity.
At least this is the conventional
thinking. But the possibility of the adoption of a more liberal
approach has recently been raised
by this Court (Pangbourne
Properties Ltd v Gill & Ramsden (Pty) Ltd
1996 (1) SA 1182
(A) at
1187B-F) …
The mere notional possibility that evidence of surrounding
circumstances may influence the interpretation of a contract does not

necessarily operate to debar a court from deciding the issue on
exception. The contention that such evidence exists must be examined

with care …
As a rule, courts are
reluctant to decide upon exception questions concerning the
interpretation of a contract. But this is where
its meaning is
uncertain … In casu the position is different. Difficulty in
interpreting a document does not necessarily
imply that it is
ambiguous.
”
[47] The test applicable in
deciding exceptions based on vagueness and embarrassment arising out
of a lack of particularity was
summarised in the case of
Quilan
v McGregor
1960 (4) SA
383
(D) at 939F-H as follows:
“
It
seems to me that in each case the court is obliged first of all to
consider whether the pleading does lack particularity to an
extent
amounting to vagueness. If there is vagueness in this sense the
court is then obliged to undertake a quantitative analysis
of such
embarrassment as the excipient can show is caused to him, in his
efforts to plead to the offending paragraph, by the vagueness

complained of. In each case the court must, in my judgment, make an
ad hoc ruling as to whether the embarrassment is, or is not,
so
serious as to cause prejudice to the excipient if he is compelled to
plead to the paragraph in the form to which he objects.
It seems to
be that the eventual test as to whether the exception should be
upheld or not is whether the excipient is prejudiced.
Furthermore,
it seems to me that the onus is on the excipient to show both
vagueness amounting to embarrassment and the embarrassment
amounting
to prejudice. Unless he can do this, the exception, in my judgment,
must be dismissed.
”
WHETHER THE EXCIPIENTS (DEFENDANTS) HAVE MADE OUT A CASE FOR
EXCEPTIONS TO BE UPHELD
[48] It is so that ever since the plaintiffs instituted their action
against the defendants on 12 or 13 December 2011, there had
been a
sort of interminable procession of exceptions taken by both the first
and second defendants, resulting in a series of amendments,
in an
attempt to cure the number of inherent difficulties encountered.
Some of those difficulties, for instance, the attaching
of a wrong
contract to the pleadings, were rectified. Others have not.
[49] The first defendant’s exception is dated 18 September
2012. The second defendant’s is dated 17 September 2012.
[50] Both exceptions were set
down for hearing on 23 October 2012 but were postponed
sine
die
by the judge in
charge in that court, who requested that the parties approach the
Deputy Judge President of this division (“
DJP
”)
for the matter to be assigned a special and/or specific period as a
special allocation. On 8 November 2012 the DJP issued
directives or
directions as to what should be done by the parties involved herein
as regards delivery of heads of argument as well
pagination of the
papers herein. The latter allocated 25 February 2012 as the date on
which argument would and should be heard.
[51] Short heads of argument were filed around 19 October 2012
already. The ones referred to by the DJP were to be long and/or

comprehensive heads of argument. The parties herein were agreed that
the matter was relatively complex.
THE GROUNDS OF EXCEPTIONS
[52] Each of the two defendants
separately excepted to the plaintiffs’ particulars of claim,
citing separately, although
not totally unrelated reasons therefor.
I intend dealing with each defendant’s exception separately,
starting with the second
defendant’s before finishing with the
first defendant’s. By virtue of the almost seamless coincidence
or confluence
of the first and second defendants’ exceptions’
grounds, the same arguments in respect of the second defendant may
overlap to cover the first defendant’s.
THE SECOND DEFENDANT’S GROUNDS OF EXCEPTION
Reliance on invalid cession of rights
[53] The first plaintiff’s
claim against the second defendant is based on the building agreement
which was concluded between
Bedford Square Properties and the second
defendant. Bedford Square Properties is defined in that agreement as
“
the employer
”
and the second defendant as “
the
contractor
”. The
first plaintiff was not a party to the building agreement.
[54] The first plaintiff alleges that it took a cession and
assignment or delegation of the rights and obligations of Bedford

Square Properties under this building agreement in terms of the sale
agreement.
[55] Clause 19.1 of the building
agreement prevents either party from ceding or assigning its rights
or obligations without the
written consent of the other party. To
avert derogating from the context and extent of the above clause
19.1, it is my considered
view that I should quote it herein
verbatim
.
It reads thus:
“
Neither
the employer nor contractor shall assign or cede his rights or
obligations without the written consent of the other party,
which
consent shall not be withheld without good reason.
”
[56] Nowhere in its pleadings
does the first plaintiff plead that the second defendant gave written
consent. Instead the first
plaintiff pleads that the second defendant
consented orally,
alternatively
tacitly to the cession and delegation.
[57] When one considers the terms of the building agreement, which
are in my view clear and unambiguous, the alleged cession or

assignment of rights and obligations falls foul of clause 19.1
thereof.
[58] The first plaintiff
ostensibly realised its difficulty with this pleading or averment
when one looks at the next move it took:
it pleaded further that the
second defendant waived by conduct the requirement of “
written
consent
”.
[59] The second defendant’s
exception is to the effect that even if the waiver did take place
(which is not admitted or conceded),
a proper interpretation of the
building contract disallows reliance on such a waiver by conduct and
cession in the absence of written
consent. The first defendant
relied for the above view also on clause 1.8 of the building
agreement which reads as follows:
“
This
agreement is the entire contract between the parties regarding the
matters addressed in this agreement. No representations,
terms,
conditions or warranties not contained in this agreement shall be
binding on the parties. No agreement or addendum varying,
adding to,
deleting or cancelling this agreement shall be effective unless
reduced to writing and signed by the parties.
”
[60] Where an exception is
based, as in this instance, on an interpretation of a contract, there
is legal authority to the effect
that the proper interpretation of a
contract may be decided on exception. I alluded to this earlier on
or at paragraph 44 of this
judgment when I dealt with the case of
Sun
Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996 (4) SA 176
(A), especially the last but one of the paragraphs of
the case quoted.
[61] In the last paragraph of
the above case as quoted above the court noted that while it is
correct that courts might be reluctant
to decide such questions (like
or exceptions) on interpretation, that should not the case where the
meaning of the contract is
clear and unambiguous from its terms.
[62] The learned judge aptly put
it further as follows:
“
In
casu, the position is different. Difficulty in interpreting a
document does not necessarily imply that it is ambiguous. (Standard

Building Society v Cartoulis
1939 AD 510
at 516.) Contracts are not
rendered uncertain because parties disagree as to their meaning.
(Williston on Contracts, 3
rd
Ed, Vol. 4, para 601 (supplement). Council was probably right in
saying that the letter is not a lawyer’s contract. But
this is
no reason for interpreting it differently. For the reasons given, I
do not find the meaning of clause 3 doubtful. Properly
interpreted,
it has only one meaning. It affords the appellant the right to
terminate. This is what Mitchell AJ found. His conclusion
that the
amendment should be refused was therefore the correct one.
”
[63] Similarly in this instance
I do not find the meaning of the clause of the building agreement in
question here doubtful. In
the circumstances I see no reason why
evidence of background facts or surrounding circumstances would make
any meaningful difference
to the outcomes as regards this exception
ground.
[64] It was argued on behalf of the second defendant that there are
three reasons why this exception should be upheld on the basis
that
there can have been no valid waiver of the requirement that the
second defendant was required to consent to the cession in
writing,
resulting in there being no valid cession, and the first plaintiff
arguing no right or entitlement to enforce any provisions
of the
contract.
[65] Those reasons are given as:
Firstly, that the claimed waiver constitutes an impermissible
variation of the contract, which is disallowed, if not forbidden

under general by the non-variation clause 1.8 of the building
agreement.
Secondly, even if the waiver may not be regarded as a disguised
variation, the relevant clause cannot have been waived by the

second defendant because it was not included therein solely for its
benefit.
Thirdly, the alleged waiver is
prevented by clause 1.8 of the agreement, which operates as a “
no
waiver
”
clause.
First reason of second defendant’s exception: waiver
constitutes impermissible variation
[66] The legal principles
regarding non-variation clauses in contracts are well set out in the
Shifren
case
(
supra
).
[67] That case contained two
clauses in a lease agreement among others, which read as follows:
“
11.
The tenant shall not have the right to sublet the said business
premises or any portion thereof nor shall he have the right
to cede
this agreement to any person whomsoever without, in either event, the
written consent of the owner first being had and
obtained …
”
“
19.
Any variations in the terms of this agreement as may be agreed upon
the parties shall be in writing otherwise same shall be
of no force
or effect.
”
[68] The plaintiff sued the defendant and claimed for the
cancellation of the lease agreement with the concomitant eviction of

the defendant as well as the cessionary because the defendant ceded
his rights in the lease without the written consent of the
owner,
being the plaintiff, as required by or in the lease agreement. The
defendant admitted the cession but pleaded that the
parties had
concluded an oral agreement in terms of which both parties agreed to
the cession on certain conditions.
[69] The court decided that the
alleged oral agreement between the parties was
void
.
[70] The facts or circumstances
in the
Shifren
case are not too dissimilar to those obtaining in this case. It is
clear from the
Shifren
case that where there
is a non-variation clause, a requirement of written consent to a
cession cannot or should not even be avoided
by means of an actual
agreement between the parties, let alone a waiver by one of them.
[71] It is so that a
non-variation clause may not necessarily be a bar to one party from
orally waiving a provision(s) of a contract
in the face thereof.
That would be in order if the provision(s) waived had been included
entirely for the benefit of the party
who is alleged to have waived
it.
[72] It is apparent that it is
not the case in our present case: the clause allegedly waived is not
for the benefit of the defendant(s)
only or solely
[73] A waiver does not necessarily amount to a variation of a clause
or contract. It is a unilateral act by the waiver that does
not
require the consent of the other party.
Christie,
The
Law of Contract
, 6
th
ed, Lexis Nexis, 2011, at pp 47.
[74] There may be instances where an alleged waiver may in fact be a
disguised variation in the sense that it effectively results
in a
variation of the agreement contrary to the requirements of the
non-variation clause. In such case it must be in writing.
[75] The Supreme Court of Appeal
in
HNR Properties CC v
Standard Bank of SA Ltd
2004
(4) SA 471
(SCA) dealt with a similar situation. In that case clause
15 of the relevant contract stipulated that:
“
…
the surety shall not be released from any liability of the surety
hereunder or from any of the debtor’s obligations unless
such
release be in writing signed on behalf of the bank by a duly
authorised signatory …
”
[76] Clause 16 contains a non-variation clause reading as follows:
“
No
cancellation or variation of this suretyship shall be of any force or
effect whatsoever unless and until it is recorded in writing
by or on
behalf of the bank and the surety.
”
[77] The defendants contended that they had been released as
sureties by virtue of the conduct of the bank and an alleged waiver

of the requirements of clause 15 that stipulates that the release be
in writing and signed on behalf of the bank by an authorised

signatory.
[78] Scott JA ruled as follows
among others:
“
19.
… In Sentrale Ko-op Graan Maatskappy Bpk v Shifren en Andere
1964 (4) SA 760
(A) this court held a term in a written contract
provides that all amendments to the contract have to comply with
specified formalities
is binding. The principle has been consistently
reaffirmed, most recently by this court in Brisley v Drotsky
2002 (4)
SA 1
(SCA) … Courts have in the past, often on dubious
grounds, attempted to avoid the Shifren principle where its
application
would result in what has been perceived to be a harsh
result. Typically, reliance has been placed on waiver and estoppel.
No doubt
in particular circumstances a waiver of rights under a
contract containing a non-variation clause may not involve a
violation of
the Shifren principle, for example, where it amounts to
a pactum de non petendo or an indulgence in relation to previous
imperfect
performance … But nothing like that arises in the
present case.
The appellants contend that
they were released as sureties by virtue of the conduct of the bank,
coupled with a consensual waiver
of the provisions of clause 15. In
my view, a factual basis for such a contention was not established
on the evidence. But even
if it had been, it would have amounted,
in the circumstances of the present case, to no more than a
variation of clause 15 which
was not in writing. This is precluded
by clause 16. To hold otherwise would be to render the principle in
Shifren wholly ineffective.
”
[79] This brings up the issue of
waiver
vis-à-vis
variation. Nestadt J looked at the difference between the two in
Van
As v Du Preez
1981 (3)
SA 760
(T), where said the following at 764-765:
“
It
is unnecessary to canvass what the juristic nature of a waiver is and
more particularly whether it is contractual in form or
merely a
unilateral act. Suffice it to say that, however brought about, it is
the abandonment or surrender (with the necessary
knowledge) of a
right (Alfred McAlpine & Son (Pty) Ltd v Transvaal Provincial
Administration
1977 (4) SA 310
(T) at 323). It does not per se
result in the contract being altered. Herein lies the difference
between it and a variation.
It will be a question of fact (and
perhaps of law) in each case as to whether the conduct or agreement
in question is merely a
waiver or whether it goes further and amounts
to a variation. Whether the right in question is one which has
already accrued or
whether it is only enforceable in the future will
be an important determining factor. In the latter case it is
difficult to imagine
the waiver not being other than in the form of
an agreement which has the effect of varying the original contract
giving rise to
the right.
An oral variation masquerading
as or in the guise of a waiver remains what it truly is. It remains a
variation. To hold otherwise
… would be to render nugatory the
principle of the effectiveness of contractual entrenchment as laid
down in Shifren’s
case.
”
[80] The above principles were
quoted with approval in
Sunset
Village SPV (Pty) Ltd v Smith Tabatha Buchanan Boyes Inc
2009
JDR (WCC) as well as in
Kovacs
Inv 724 (Pty) Ltd v Marais
2009
(6) SA 560
(SCA) at para [22].
[81] Blignaut J considered the
above issues in the
Sunset
Village SPV v Smith et al
case and clarified issues as follows:
“
[23]
In Van As v Du Preez … Nestadt J was dealing with an oral
agreement between a lessor and lessee of certain premises
to the
effect that the rental would be reduced from that stipulated in the
written agreement of lease. He held that the oral agreement
offended
against a non-variation clause. Hutchinson, Non-variation Clauses on
Contract,
2001 SALJ, 720
of 729 describes the outcome of Van As v Du
Preez as ‘just and satisfying’. Van der Merwe et al,
Contract, General
Principles, 156 refers, inter alia, to Van As v Du
Preez in support of the following principle:
‘
A
variation entails an alteration of the legal consequences of the
contract by mutual agreement of the parties …’
…
[25] In my view this oral agreement comprised material variations
of the terms of the written agreement of sale. Put differently,
it
entailed ‘an alteration of the legal consequences of the
contract by mutual agreement’. The oral agreement was

certainly not a unilateral waiver of the one party’s rights
under the agreement.
[26] I am accordingly of the
view that applicant is precluded from relying on the oral agreement.
”
[82] This issue was canvassed
recently in
Investec
Bank Ltd v Louw
[2012]
ZAWCHC (12 September 2012) in which Bozalek J held as follows at
paras [33] and [34]:
“
[33]
In my view, a similar situation pertaining in the present matter. To
hold that the alleged oral agreement (which must be assumed
for
present purposes) coupled with the documents relied upon constitute a
waiver by the applicant of its rights under the agreement,
would
amount to an impermissible circumvention of the provisions
[of
the non-variation clause – see para 16],
rendering
the principle in Shiften nugatory …
[34] Our courts have held in
several cases that a defence based on an unenforceable oral agreement
disguised as a waiver cannot
be used to resist the enforcement of a
contractual provision governed by a non-variation/non-cancellation
clause.
”
[83] The above was a response to argument in that court by the
respondent’s counsel around certain clauses in a contract
under
discussions. Counsel had argued that the applicant through clear
representations had waived its rights against the respondent
arising
out of a suretyship agreement. He further argued that in the
ordinary course, a release may be made tacitly but that was
not to be
the case if the governing contract stipulates that it must be in
writing.
[84] I agree with counsel for the second defendant that in our
present case, even if it is accepted (for argument’s sake)
that
the second defendant indeed waived the clause 19.1 requirement that
Bedford Square Properties should obtain written consent,
the effect
of that or such a waiver would be that the contract would be varied
in relation to one of its most material provisions,
namely, the
identity of the contracting parties and that would have been done in
flagrant disregard of a corner term of the agreement,
i.e. that all
variations or alterations or waivers shall not be legitimate unless
they are done in writing. Clause 1.8 of the
building agreement
requires this. No more, no less.
[85] I also echo the words of
Blignaut J in the
Sunset
Village
case (
supra
)
that the effect of such an alleged waiver would result in nothing
less than a material variation of the terms of the written agreement

or an alteration of the legal consequences of the contract by mutual
agreement. That is impermissible in the peculiar facts and

circumstances of this case.
Second reason for exception re: clause requiring consent cannot be
waived if it was not included solely for the benefit of second

defendant
[86] It is common cause or trite
that where a waiver from its very nature is for the benefit of both
parties and there is a clause
requiring such waiver to be in writing,
one of the parties cannot unilaterally waive any such clause of an
agreement without the
other’s consent in writing. If a clause
is for the exclusive benefit of one of the parties, that party can
waive it. As
put in
Barnett
v Van der Merwe
1980
(3) SA 606
(T), a waiver in connection with a written contract
containing an entrenchment clause can only apply to a provision which
is exclusively
for the benefit of one party. At 611G of the above
judgment the court went on to state that:
“
…
this is miles away from any concept that the requirement of
writing in respect of amendments can be waived orally.
”
[87] The clauses of the agreement in issue in this application are
for the benefit of both the excipients and respondents.
[88] The respondents relied on
the principles set out in
Hillsage
Investments (Pty) Ltd v National Exposition (Pty) Ltd and Others
1974 (3) SA 346
(W). In this case the party that sought to deny that
there had been a valid cession was the defendant, who was the alleged
cessionary
of a lease from whom the plaintiff had sought payment of
rent.
[89] The clause in question there read as follows:
“
The
lessee shall not sublet the premises or any portion thereof, nor cede
or assign or pledge this lease or any of his rights hereunder
without
the lessor’s prior written consent.
”
[90] It is clear that the benefit here is to one of the parties
only.
[91] On the other hand, the corresponding clause in the agreement
between the parties in this application is different. I quote
it:
“
Neither
the employer nor contractor shall assign or cede rights or
obligations without the written consent of the other party which

consent shall not be withhold without good reason.
”
[92] Here the benefit is two edged – both parties are being
benefitted. Consequently, this authority cannot avail the
respondents.
[93] Where a waiver is a disguised variation, as appears the case
herein in my view, then the situation worsens.
[94] Another problem with the
reliance on the
Hillsage
case is that it had nothing to do with the question of whose benefit
the clause was inserted for or whether the waiver and cession
were
valid. This is apparent from the following excerpt from the
judgment:
“
…
all these points raised by the plaintiff are valueless because
they are all based on the interpreting of a contract to which the

principal debtor was not a party. Indeed the true fons et erigo of
the National Exposition’s liability is its own contract
with
the lessor … in terms whereof it assumed, with the latter’s
concurrence, all the liabilities of
[the
previous lessee]
under
the deed of lease. These interesting points which were canvassed by
them in this case may very well be relevant in litigation
between the
plaintiff and Hirba
[the
previous lessee]
to
determine the legal results which flowed from the plaintiff’s
conduct in entering into a contract with National Exposition
…
”
[95] In the
Hillsage
case the facts were different from those the parties are busy with
here. The defendant in that case seems to be saying to the plaintiff:

because you did not agree in writing to the cession of the lease to
me, the cession is thus invalid and you cannot rely on it
against me.
In our current application the second defendant seems to be or is
saying to the plaintiff: because I did not agree
in writing or even
approached to consider the cession of the building agreement, then a
third party cessionary cannot rely on the
agreement against me.
[96] In the
Hillsage
case the defendant had full knowledge of the lease that it was taking
cession of. It was a sort of a bargain then. In our current
case the
second defendant is simply relying on a clause that it expressly
agreed to when it concluded the agreement with Bedford
Square
Properties.
[97] When one looks at and
considers the principles expounded in
Hillock
and Another v Hillsage Investments (Pty) Ltd
1975 (1) SA 508
(A), it becomes apparent that the
Hillsage
case cannot be authority for the proposition that a party that wishes
to waive compliance with a contractual requirement must give
its
written consent to a cession. At 515A, Muller JA says the following:
“
In
my judgment this argument has no merit … The object of clause
8 of the lease was to render an assignment concluded by
the lessee
[Hirba]
with
a third party, without the prior written consent of the lessor, not
binding on the lessor. It is unnecessary to decide whether,
as was
contended before us, the provisions of clause 8 were inserted also
for the benefit of the lessee. For present purposes,
I shall assume,
without deciding, that they were. What is clear, however, is that
those provisions, and indeed also the provisions
of clause 31, were
intended to operate only as between the parties to the agreement,
namely, the lessor and the lessee. A third
party, such as the
National Exposition in the present case, cannot seek to rely on the
provisions in question, unless it has become
a party to the
agreement, for example, by assignment that the applicants seek to
attack.
”
[98] What emerges from the above
is, in my view, the following: while the clause may well have been
for the benefit of both parties
and while a party to the contract may
well be allowed to rely on the clause, the true
ratio
of the above case is that a non-variation clause cannot be relied
upon by someone who was not a party to the contract and who actually

seeks to dispute that it was a party.
[99] On the other hand, in our current matter, it is evident from
the contract that clause 19.1 was expressly included for the
benefit
of both parties and the second defendant, which has always been and
still is, a party to the agreement is the party that
seeks to rely on
it.
[100] Unlike in the
Hillsage
case, in our current matter, no separate contract exists between the
first plaintiff and the second defendant. Further unlike in
the
Hillsage
case, the first plaintiff is not alleging that this is the case.
[101] Hiemstra J put it
succinctly in
Impala
Distributors v Taurus Chemical Manufacturing Co (Pty) Ltd
1975 (3) SA 273
(T) at 277D as follows among others when he referred
to a party’s right to waive a requirement “
…
wat uitsluitend tot voordeel van een party is
”
(exclusively to the benefit of one party only). The Learned Judge
raised the example of the waiver of a stipulation requiring
the
payment of rental, which is only to the benefit of the lessor and
identified this (at 277E) as a “
pactum
de non petendo
”
or as “
’n
eensydige regshandeling waarby die toestemming van die ander party
irrelevant is
”.
He went on to state that this is a “
…
ware en geldige
”
oral waiver, which may be distinguished from “
…
‘n vermomde
”
(disguised) waiver “
…
wat niks anders is as ontbinding by wilsooreenstemming nie
”
(dissolution by consensus) which, if allowed, “
…
sou prakties beteken dat met een asemstoot die hele sorgvuldige
opgeboude Shifren-struktuur aan skurwe lê …
”
(which would in practice mean that with one fell swoop, the entire
laboriously and carefully constructed
Shifren
principles would lie in pieces).
[102] In distinguishing between
an oral agreement that the contract in question may be ceded despite
the requirement of written
consent and a waiver of a right to enforce
a right in the contract following a breach thereof, the Learned Judge
said:
“
Dit
is omdat in die Shifren-saak die tweede punt nie gepleit was nie, dat
die hof hom nie oor afstanddoening uitgespreek het nie.
Wat die
eerste punt betref, daar het die Appèlhof beslis dat so ‘n
ooreenkoms nietig is. Wat die tweede betref, bevind
ons dat dit wel
gedoen kan word omdat dit nog ‘n ontbinding nog ‘n
wysiging van die kontrak is.
”
[103] Hiemstra J in the above
utterances confirmed that the Appellate Division in
Shifren
did indeed find that an oral agreement that the contract may be ceded
despite the requirement of written consent, is void.
[104] It is thus my view that
even an actual agreement to waive the requirement of written consent
to a cession is invalid if it
is oral. By the same reasoning, a
unilateral waiver of such a requirement cannot be valid.
[105] It is noteworthy that the
judge in the
Impala
case noted at 277G thereof that in the
Hillsage
case:
“
…
daar word niks meer beslis nie as dat ‘n derde hom nie kan
beroep op verontagsaming van die skrifvereiste deur kontrakterende

partye nie.
”
[106] In
Sunset
Village SPV (Pty) Ltd v Smith Tabatha Buchanan Boyes Inc
2009 JDR 1328 (WCC), Blignaut J considered the judgment of Hiemstra J
in the
Impala
case and concluded that:
“
[21]
It is clear … that Hiemstra J equated a pactum de non petendo
with a unilateral waiver of a term which is to the benefit
of the one
party only. This is, with respect, a curious use of the concept as
pactum is the Latin word for agreement. A pactum
de non petendo has
been defined, more correctly in my view, in Van der Merwe and Others:
Contract, General Principles, 2
nd
Ed, 373-374 as follows:
‘…
a
pactum de non petendo suspends the capacity to enforce
[a
contract]
,
usually for a specified period or until the occurrence of some
contingency.’
[22] In my view the analysis
of Nestadt J in Van As v Du Preez
1981 (3) SA 760
(TPD), is more
pertinent.
”
[107] To re-cap, the
Van
As
case is authority
for the proposition that even if a waiver relates to a provision
inserted for the sole benefit of the party alleged
to waive it, it
will nevertheless not be valid if it in effect constitutes a
variation, which is precisely the case in the current
matter.
[108] The first plaintiff also
relied on
Varalla v
Jayandee Properties (Pty) Ltd
1969 (3) SA 203
(T). In that case the defendant stated that he had
received a written notice. Even though the document he had received
did not
in fact constituted written notice as required, the court
accepted that that does not seem to make any difference to the rights

of the parties in the matter because, according to the evidence, the
plaintiff’s representative contended that a valid notice
had
been given to the defendant and the defendant apparently thought he
had received a valid notice.
[109] From the aforegoing it is
my considered view and finding that the
Varalla
case was not an instance of waiver of a requirement that the notice
be in writing, but rather of the waiver of a right to raise
the issue
as a defence at the trial. In other words, it represents a true
pactum de non petendo
as referred to by Blignaut J in
Sunset
Village
.
Third basis of first exception: Alleged waiver being prevented by
clause 1.8, which is a non-waiver clause
[110] The basis hereon is that the plaintiff cannot rely on the
pleaded waiver and cession because clause 1.8 of the building

agreement constitutes a non-waiver clause which disallows any
reliance on the alleged waiver.
[111] In
Coronel’s
Curator v Coronel’s Estate
1941 AD 323
, the waiver of a right conferred by contract, as opposed
to one conferred by law, was regarded as a donation, and is therefore
an agreement, not a unilaterally effected act.
[112] Clause 1.8 of the building
agreement here includes stipulations that no representations, terms,
conditions or warranties
not contained in the agreement shall be
binding on the parties. On the abovementioned basis that the wavier
here is contractual
in nature, and not a unilateral act, the clause
rendering “
…
any representations or term, etc, … not contained in
[the]
agreement
” not
binding in fact operates as a no-waiver clause to the extent that
such waiver is based on such a representation. In
those
circumstances, it will not be open to the first plaintiff to lead
evidence of the alleged waiver. Such evidence would be
inadmissible
and the contractual requirement of written consent renders the claim
against the second defendant excipiable.
See:
Sun
Packaging (Pty) Ltd v Vreulink
(supra)
at 184E-J.
Dadabhay
v Dadabhay
1981 (3) SA
1039
(A) at 1048B-F.
Sheek v East London Daily
Dispatch (Pty) Ltd
1980 (1) SA 151
(E) at 159-160.
Plascon-Evans Paints (Tv) Ltd
v Virginia Glass Works (Pty) Ltd
1983 (1) SA 465
(O).
SECOND GROUND OF EXCEPTION: FAILURE TO PLEAD TERMS OF CONSENT
[113] The first plaintiff
pleaded that the waiver it is relying on or consent thereto to be
exact, was given orally,
alternatively
,
tacitly. It is trite that where a party relies upon an oral
contract, it must stipulate when, where and by whom it was concluded.

This is a requirement of Rule 18(6) of the Uniform Rules. A
litigant’s non-compliance with Rule 18(6) may give rise to a

successful exception where such non-compliance results in a pleading
being vague and embarrassing.
See:
Sasol
Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering
(Pty) Ltd t/a L H Marthinusen
1992 (4) SA 466
(W).
Jowell
v Bromwell-Jones & Others (supra)
at 902 E.
[114] The Appellate Division
elaborated on this rule in
Roberts
Construction Co Ltd v Dominion Earthworks (Pty) Ltd
1968 (3) SA 255
(A) at 261F: wherein among others the Learned Judge
stated that Rule 18(4) states a general principle to the effect that
every
pleading shall contain a clear and concise statement of the
material facts upon which the pleader relies for his claim, and that

its application to contracts is specific in the sense that:
“
…
A party who in his pleading relies upon a contract shall state
whether the contract is written or oral, and when, where and by whom

it was concluded.
”
(Rule 18(6))
[115] The court further stated that Rule 18(7) must be read as
constituting an exception to the general principle and only relates

to a term in an express contract, the latter being pleaded with the
particularity required by Rule 18(6). He added that the general

principle would require a statement of the facts or circumstances
constituting any implied contract relied upon, or, put in another

way, the facts and circumstances from which such contract is
inferred.
[116] In its pleadings in this (our) matter, the plaintiffs did none
of the above. What makes matters more convoluted is the fact
that the
plaintiffs do not allege that the consent itself was given by means
of the conduct alluded to or alleged in paragraph
12.6 of the
particulars of claim. Their specific pleadings reveal that this
alleged conduct gave rise to the waiver of the requirement
that the
consent be in writing.
[117] I agree with the second defendant that the failure to comply
with the requirements of Rule 18(6) in itself renders the particulars

of claim excipiable. In addition thereto the pleadings become
excipiable on the ground that it is vague and embarrassing because

the defendant is prejudiced by the lack of particularity pleaded in
relation to the oral or tacit consent.
See:
Quinlam
v McGregor
1960 (4) SA
383
(D) at 389F-H.
[118] The first defendant in my
view cannot tell exactly what it is required to admit or deny, or,
for example, whether it is in
a position to plead that the
plaintiff(s) is (are) estopped from relying on any facts in support
of the alleged oral or tacit consent
to the cession. They equally do
not know who is or are alleged to have represented them at the
conclusion of those alleged oral
or tacit agreements or consents
and/or whether or not such persons were known to them or authorised.
THIRD EXCEPTION GROUND: CONTRACTUAL EXEMPTION FROM LIABILITY
[119] The relief sought by the
plaintiffs against the second defendant include an order requiring
it, at its costs, to rectify
certain alleged latent defects in the
roof covering system, which are identified as being sharp edges which
created point and line
loads, resting on the Nutex “
Bigsix
”
sheets.
[120] After listening to argument from both counsel on this ground
of exception, I am not persuaded that the second defendant
cannot
plead to the allegations hereon. As a result, this ground of
exception is not, in my view, good enough.
FOURTH GROUND OF EXCEPTION: NO CONTRACTUAL BASIS FOR RELIEF
[121] The second defendant did not pursue or persist on this ground.
As such it was not substantiated during argument.
FIRST DEFENDANT’S EXCEPTION
[122] I have already set out the first defendant’s five
exceptions in paragraphs [28] to [39] of this judgment hereinbefore.
[123] To re-cap, the first plaintiff alleged that the first
defendant failed to deal with the roof coverings in issue here
appropriately.
An amount of projected and pleaded losses are around
R3,8 m plus VAT. There is also an alternative count involving R544
000,00
representing what is called reasonable costs incurred.
[124] When the summons were
originally issued the plaintiff’s had attached to it a wrong
agreement or contract. The plaintiffs
also alleged or asserted a
written cession. Exception were taken to all the above and the
plaintiffs amended their pleadings. The
amended papers or particulars
of claim no longer pleaded a written cession but alleged that the
first defendant agreed to the cession.
Another exception was taken
and the amendments that are the subject of the present exceptions
were effected. These latest amendments
now also allege the existence
of verbal appointments in the face of allegations pointing to written
appointments as per the contract(s).
The well-travelled clause in
our context or paragraph 7A of the particulars of claim is part of
the amendments effected which
precipitated the five (5) exceptions
raised by the first defendant.
[125] The fourth and fifth exceptions by the first defendant relate
to limitations and time bar clauses, respectively.
[126] I agree with the submission by counsel for the first defendant
to the effect that should or if this Court upholds the first

exception, then the third, fourth and fifth exceptions should also be
upheld. If the first exception is dismissed, then equally,
the
fourth and fifth exceptions should also be dismissed. Should it be
necessary that the fourth and fourth exceptions be dealt
with or
determined, then part of the third exception also should be dealt
with together with them.
FIRST DEFENDANT’S FIRST EXCEPTION
[127] The first plaintiff had claimed for damages as a cessionary
from the first defendant based on an alleged breach of the first

defendant’s obligations in terms of the architect agreement
signed and the first defendant’s alleged failure to perform
his
duties as principal agent.
[128] The first defendant’s first exception is essentially
directed at paragraph 7A of the plaintiffs’ particulars
of
claim, which reads as follows, to re-cap:
“
On
a proper construction of the architect agreement only clause 2.0,
including clauses 2.1 to 2.5 of the client/architect agreement,
read
with the relevant definitions
[as]
contained in clause 1.2
of the client/architect agreement, was incorporated in and forms part
of the architect agreement.
”
[129] According to the first
defendant, the first defendant’s first exception relates to an
attempt by the plaintiffs to
exclude from operation certain written
terms of the architect agreement which the plaintiffs contend
represent the written agreement
concluded between Bedford Square
Properties and the first defendant. This the plaintiffs endeavour to
see happening by pleading
in paragraph 7A of their amended
particulars of claim that on a “
proper
construction
”
only clause 2 of the client/architect agreement was incorporated into
and forms part of the architect agreement. The problem
with this
attempt according to the first defendant appears to be that in terms
of the very architect agreement relied upon by the
plaintiffs, the
first defendant’s services were expressly stated to be rendered
in accordance with the client/architect agreement,
full stop. No
qualification(s) was made to that statement. The first defendant
submits in this regard that any exclusion of certain
provisions of
the client/architect agreement would and should have necessitated an
independent or unequivocal written amendment
to these agreements, but
such a situation has not occurred.
[130] The first defendant
contends further, that at the very least, the following provisions of
the client/architect agreement/contract
were incorporated in the
client/architect contract/ agreement:
Clauses 4.3.2, 4.3.3, 4.3.4 and 4.3.6 which place limits to the
architect’s responsibilities.
Clause 4.6, which provides
inter alia
that neither party shall assign or cede its interest in the
building agreement without the written consent of the other.
Clause 11.4, which is a non-variation clause, among others.
[131] The clause of the
architect agreement the plaintiff’s are relying on for their
contentions is clause 3.1 which reads
as follows:
“
3.
DEFINITION AND SCOPE OF SERVICES
Services
Your Services will be in
accordance with the client/architect agreement published by the
institute of South African Architects.
The scope of work embraced by
the Architectural appointment includes the design stages, technical
documentation, contract administration
and inspection of the works,
i.e. Stages 1 to 5 inclusive.
”
[132] The plaintiffs consequently contended that the ordinary
grammatical meaning of clause 3.1 does not indicate that the whole
of
client/principal agent agreement was incorporated in the
client/architect agreement.
[133] When asked to indicate
whether in the above clauses such an exclusion was clearly and
unequivocally apparent, the plaintiffs
could not point to that
directly. They proceeded to give a rambling anecdotal rendition
arrived at by some sort of inferential
reasoning in an attempt to
justify their contention. They could equally not come up with any
cogent reason(s) why some clauses
of the client/principal agent
agreement would be included while others are supposed to be excluded.
[134] I am not persuaded by the
reasons advanced by the plaintiffs who pointed out that although the
client/principal agent/architect
agreement contained set out duties,
obligations and/or limitations, the fact that the specific terms
agreed upon by the parties
differed from them, for e.g. in respect of
the fee structure, disbursement settlement, the manner of payment of
the first defendant’s
fees and the dispute resolution
mechanisms contained therein.
[135] I have meticulously
scrutinised the two agreements. I have come to the conclusion that
the client/principal agent agreement
is a specimen contract document
setting out ideal terms that parties may incorporate in their
specific contracts
inter
se
. The parties are at
liberty to adapt those general or template terms contained in the
client/principal agent agreement when they
conclude their situation
perfect client/architect agreement. I could not come across any where
in the said template or agreement
where a specific clause is singled
out for specific incorporation into the client/architect agreement.
[136] It is for the above reason among others, that I find that the
entire client/principal agent agreement is not specifically
excluded
or barred from forming part of the client/architect agreement.
[137] In their heads of argument (page 10, para 17), the plaintiffs
appear to be acknowledging that they did not set out sufficient

particulars in relation to the oral or tacit consent alleged. The
paragraph reads as follows:
“
17.
It is submitted that the alleged failure by the plaintiffs, to set
out ‘sufficient particulars in relation to the oral
or tacit
consent’, does not amount to vagueness which causes
embarrassment and prejudice to the first defendant.
”
[138] For the same reasons I
advanced in respect of the second defendant’s exceptions
hereinbefore, I do not agree with the
applicants: The pleadings are
vague and embarrassing generally for the self-same reasons that
sufficient particulars in relation
to the oral or tacit consent
details were not furnished.
[139] As regards this first exception by the first defendant, the
plaintiffs have not advanced sufficient and/or cogent grounds
why
they should be allowed to pick and choose which terms of the
client/principal agent agreement were excluded or included in
the
client/architect agreement.
[140] It is my considered view and finding further that the
plaintiffs’ adoption of this line of conduct or reasoning is

not supported by the facts on the ground.
[141] The wording of clause 3.1
which the plaintiffs rely on on this ground or exception is not
exhaustive of all the scope alluded
to. The words: “
…
it includes …
”
therein in my view presupposes there are others that are not
specifically mentioned.
[142] It is my finding that
where parties expressly agree on specific terms of a contract, those
express terms should supersede
the general or template terms. Hence
in the client/architect agreement here, the parties elected to deal
with such issues as fees,
and/or disbursements in their chosen manner
and moved away from the template client/principal agent agreement on
those aspects.
That in my view does not make the other terms of this
agreement non-applicable. None of the other terms of the
client/principal
agreement are in my view, excluded. For example,
this client principal agreement contains mechanisms and conditions of
termination
of the parties’ agreement and the client/architect
agreement does not contain those. Obviously, those terms of the
client/principal
agent agreement would invariably be of application
to their contract.
[143] In the circumstances, the first defendant’s first
exception makes good sense and deserves to be upheld.
[144] As stated hereinbefore and agreed to or conceded by the
parties herein, the upholding of the first exception should lead
to
the fourth and fifth exceptions being upheld as well. As such it is
not necessary that I deal with them specifically herein
in order to
uphold them.
[145] Which leaves us with the
second and third exceptions.
THE SECOND OF THE FIRST DEFENDANT’S EXCEPTIONS
[146] This relates to the plaintiff’s endeavours to rely upon
a subsequent oral agreement relating to the appointment of
the first
defendant as a principal agent in circumstances where that
appointment had already been made in terms of the written
architect
agreement.
[147] According to the first defendant the fact that the plaintiffs’
particulars of claim contemplate two separate agreement
side by side
for a single appointment, that on its own is not only indicative of
vagueness but also embarrassing, thereby justifying
the exception.
On top of that, so argued the first defendant, the parole evidence
rule does not countenance a litigant relying
upon an oral agreement
in the face of express written terms.
See:
KPMG
v Securefin Ltd
1009
(4) SA 399
(SCA) at 409G.
[148] All what has been said on this aspect in respect of the first
exception is of equal application here. I will not repeat
same except
where it is absolutely necessary to do so.
[149] It is not in dispute that
the written client/principal agent agreement has appointed the first
defendant as the architect
and agent (principal agent) for the
project in question. The plaintiffs somewhat contrived to be
substitutes in the place of Bedford
Square Properties who are the
instance that contracted with the first defendant. The first
plaintiff did not plead that the first
defendant was party to the
processes that saw them replacing Bedford Square Properties as their
counterparts in the agreements.
[150] The written agreements are
clear and unambiguous in their terms. It is also so that the
plaintiffs are not relying on any
ambiguity or contextual background
in the interpretation of the agreements.
[151] The plaintiffs now alleged
in the particulars of claim that there was another agreement made
verbally between the parties
to the effect that another appointment
was made or that can be tacitly inferred in the face of the written
agreement. This allegation
in my view is totally inconsistent with
the allegations in paragraph 5 of the plaintiffs’ particulars
of claim, which confirms
that the first defendant has indeed already
been appointed as principal agent and architect.
[152] As stated hereinbefore in respect of the first exception by
the first defendant, nowhere do the plaintiffs offer full particulars

of such oral or tacit agreement that contradicts a written
instrument. No particulars of actors, place and circumstances under

which such oral agreement was entered into are furnished.
[153] On the face of it, these allegations are indeed vague and
embarrassing and offend the parole evidence rule.
[154] Counsel for the plaintiffs
argued that the question relating to this exception can be answered
if a consideration is given
to the aspect whether or not the
client/architect agreement constituted the whole contract between the
first defendant and it.
He relied on
Johnston
v Leal
1980 (3) SA 927
(A).
[155] My problem with the above case is that it dealt with
formalities for the sale of immovable property. What I can deduce
from the circumstances and the submissions made is that this case
indeed deal with an exception to a plea that relates to a written

contract where there are blank spaces in that contract. The court
held that one would need extrinsic evidence admissible to the
parties
to explain why such blank spaces are in that contract, leading to the
validity of such a contract not being capable of
being determined
without such evidence. In such circumstances, the court further held,
a decision on exception is not possible.
[156] We are not dealing with
the validity of a contract here. At worst we would be dealing with
the interpretation of existing
contracts whose validity are not in
dispute.
[157] It was also argued on
behalf of the plaintiffs that tacit or implied terms of an agreement
can explain the terms and conditions
thereof, as well as the fact
that it was the contracting parties’ intention that the
variation clause in their agreement
should not apply.
[158] I cannot agree with the plaintiffs’ submissions. To do
so would be tantamount to allowing far-fetched and/or remotely

associated considerations to interfere in a simple issue of whether
the pleadings herein are vague and embarrassing. Furthermore,
it is
bad in law for the plaintiffs to plead oral and/or tacit terms of an
agreement without setting out the full details of who
represented who
during such an agreement, where and when that took place or what the
peculiar circumstances are surrounding such
oral or tacit agreement.
[159] I do not agree with the plaintiffs’ submission that
reliance on parole evidence rule is bad in law. It may have been

inappropriate in the circumstances but it is not bad in law. It is
also not an answer, as suggested by the plaintiffs’ counsel,

that in circumstances such as those that obtain in this instance,
where pleadings are vague and embarrassing, the defendant must
rely
on discovery procedures to clear the vagueness and embarrassment and
not except.
[160] The plaintiffs’ submission that Rule 18 is merely
restrictive in essence whereas Rule 23 is the appropriate procedure

cannot in my view affect the decision I intend making in this
application. Their further submission that where particulars of claim

or pleadings offend Rule 18 and are vague and embarrassing the remedy
is by or through Rule 30 to cure that is far-fetched and
preposterous
to say the least.
[161] I equally do not agree with the plaintiffs’ contention
that where particularity or details are necessary as in this

instance, the matter should be dealt with through Discovery
procedures. A litigant needs to know with certainty what it would
or
should be pleading to. It must be placed in a position where it can
decide whether to raise a special plea or plead outright
or normally.
The particulars of claim herein do not allow the first defendant to
make such informed choices. As such the exception
i.e. this second
exception also stands to be upheld.
[162] It is not proper
justification, as the plaintiffs sought to do, to aver or contend
that the fact that they did not plead
who was involved in the oral
agreements or when or where such processes took place are not “
life
and death
”
issues that should attract and justify the use of an exception. I
note with surprise in the light of the above submission
that it was
contended on behalf of the plaintiffs that where tacit consent is
pleaded, the specific circumstances must be pleaded.
In my view the
two scenarios here are mutually destructive.
[163] I ventured to ask counsel
for the plaintiffs if the identities or details of the persons or
instances who allegedly acted
on behalf of the defendant during the
alleged oral and/or tacit agreements were known. The answer was
tongue-tying: They did
not know who dealt with them during the
conclusion of these oral alternatively tacit agreements.
[164] That in my view sealed the fate of the issues relative to this
exception.
[165] I would grant them the
following: it was argued on their behalf that where implied terms
are pleaded, it is not necessary
per
se
to provide
elaborate details: Consent is the requirement necessary to close the
matter. I agree. However, that is not what is
before us.
THE THIRD OF FIRST DEFENDANT’S EXCEPTIONS
[166] The third exception by the first defendant relates to the
plaintiffs’ attempt to overcome an express provision in
the
client/architect agreement to the effect that neither party shall
assign or cede its interests in the architect agreement without
the
written consent of the other by pleading instead an oral,
alternatively, tacit consent by the first defendant to such cession

of rights from Bedford Square Properties to the first plaintiff.
[167] In this instance also, the plaintiffs do not know or could not
say who they were dealing with who purported to act on behalf
of the
first defendant.
[168] It is true that the
client/architect constitutes the exclusive (written) memorial of the
agreement between Bedford Square
Properties and the first defendant.
It is the law that a party cannot without more plead or lead evidence
that tends to or may
contract,radict alter, add to or vary such
written terms.
See:
Union
Government v Vianni-Gerro-Concrete Pipes (Pty) Ltd
1941 AD 43
at 47.
Johnston
v Leal (supra)
at
943B-C.
Philmatt (Pty) Ltd v Mossel
Bank Developments CC
1996 (2) SA 15
(A) at 23A-24B.
[169] As propounded in the
locus
classicus
case on this
aspect,
Sentrale Ko-op
Grand (Ko-op) Maatskappy Bpk v Shifren
1964 (4) SA 760
(A) where a party relies on a subsequent oral and/or
tacit agreement which purports to vary the express terms of an
agreement (
in casu
the client/architect agreement) it is impermissible to do so in the
face of a written non-variation clause expressly prohibiting
or
limiting such a move or procedure.
See also:
Brisley
v Drotsky
2002 (4) SA
1
(SCA).
Christie:
The
Law of Contract in South Africa
,
6
th
Ed, at p 464.
[170] In
Guman
v Latib
1965 (4) SA
715
(AD) at 722 the court emphasised that where there is no written
consent as required by the express terms of an agreement, there

cannot be consent altering the
status
quo
, more so where
such alleged consent is oral or alleged on tacit grounds.
[171] As stated throughout
herein, and is common cause, there is a written non-variation clause
in the applicable agreement(s)
between the parties which demand that
variation or additions thereto including any alterations and waivers
shall not be valid and
of any consequence unless reduced to writing
and signed by both parties.
[172] As stated earlier, the plaintiffs’ impediment in the
path towards success is that they do not know who consented to
the
said variation, where it took place or what the details are thereof
or circumstances under which it allegedly took place.
[173] In this case what the excipients want is: who took part in
those alleged talks, what led to those alleged talks, what are
the
circumstances of the arrangements that led to the purported consent.
They have not been pleaded.
[174] The totality of
circumstances in this exception also, in my view, points to the
excipient having done enough to justify its
exception.
CONCLUSION
[175] The exception of “
vague
and embarrassing
”
is independent of all other exceptions. The two defendants have done
enough to persuade me that the plaintiffs are indeed
vague and
embarrassing in one or other respect as set out in this judgment.
[176] I have read the authorities tendered by both sides for or
against the grant of the exceptions. It is my considered view
that
the excipients’ (defendants’) authorities were more
suited and apt to their cases. The plaintiffs’ authorities
may
have been relevant in other situations, however, they were not
appropriate in this application.
[177] The reliance by the
defendants on the
Hillsage
case which ruled that where a clause is for the benefit of both
parties, cession should not occur unless consented to in writing
is
correct. Coetzee J’s view in the
Impala
case that waiver was possible was in my opinion
obiter
.
It was not followed on appeal. The
Varalla
case facts are in my view distinguishable from the facts we are busy
with in this case.
[178] Except for the second defendant’s fourth exception, it
is my considered view and finding that the defendants have
made out
cases for the upholding of their exceptions.
COSTS
[179] This was a relatively
involved and quite complicated matter. The plaintiffs even retained
the services of two counsel.
[180] The second defendant asked that in the event of it succeeding,
it should be awarded the costs of one counsel. The first
defendant
also asked for costs of one counsel.
[181] The plaintiffs asked for costs of two counsel in case they
succeeded.
[182] The issue of costs is pre-eminently within the discretion of
the trial judge and depends on the totality of circumstances

prevailing in each case.
[183] I am of the view and finding that the defendants should be
awarded costs on a scale as between party and party.
[184] Both the defendants submitted that in the event of this Court
upholding their exceptions the plaintiffs should be granted
leave to
amend their particulars of claim within 30 days of the date of the
order and that should they fail to do so, they (plaintiffs)
will
approach the court to ask for the dismissal of the action(s).
ORDER
[185] The following order is
made:
The first to fifth exceptions
except the fourth, as set out in the first defendant’s (first
excipient’s) notice
dated 18 September 2012 are upheld.
The first to third exceptions to the plaintiffs’ particulars
of claim in the second defendant’s notice dated 17
September
2012 are upheld.
The second defendant’s fourth exception is dismissed.
The plaintiffs’ particulars of claim covered by the granted
exceptions and the prayers relevant thereto are struck out.
The plaintiffs are granted leave to amend their particulars of
claim within 30 (thirty) days of date of this order, failing
which
the defendants are hereby granted leave to apply on papers,
supplemented if necessary, for the dismissal of the plaintiffs’

action.
The plaintiffs are ordered to pay the costs of both the defendants.
_____________________________
N
F KGOMO
JUDGE OF THE SOUTH GAUTENG
HIGH COURT, JOHANNESBURG
FOR THE FIRST AND SECOND
PLAINTIFFS
(RESPONDENTS): ADV H F OOSTHUIZEN
ASSISTED BY : ADV M BOIKANYO
INSTRUCTED
BY: RICHARD MEADEN & ASSOCIATES INC
BEDFORDVIEW
TEL NO: 011 – 455
6868
FOR THE FIRST EXCIPIENT
(FIRST DEFENDANT): ADV M A
CHOHAN
INSTRUCTED BY: WEBBER WENTZEL
ILLOVO, JOHANNESBURG
TEL NO: 011 – 530
5376
FOR THE SECOND EXCIPIENT
(SECOND DEFENDANT): ADV R J A
MOULTRIE
INSTRUCTED BY: BAKER &
MCKENZIE ATTORNEYS
SANDHURST
TEL NO: 011 – 669
7600
DATE OF ARGUMENT: 05 MARCH 2013
DATE OF JUDGMENT: 15 MARCH 2013