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[2020] ZAGPJHC 103
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Super Group (Pty) Ltd v Abonhlane Consulting (Pty) Ltd (19/558) [2020] ZAGPJHC 103 (23 April 2020)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
No.: 19/558
In
the matter between:
Super
Group (Pty)
Ltd Excipient/Defendant
and
Abonhlane
Consulting (Pty) Ltd
Respondent/Plaintiff
JUDGMENT
Vally
J
Introduction
[1]
Abonhlane Consulting (Pty) Ltd (the plaintiff)
issued summons in this Court calling on Super Group (Pty) Ltd (the
defendant) to
answer to its case that it breached an agreement that
was concluded between them. The defendant excepts to the particulars
of claim
(particulars) on the basis that it fails to disclose a cause
of action. For readable convenience the parties will be referred to
as plaintiff and defendant herein rather than as excipient and
respondent.
The
particulars
[2]
The claim in the particulars originates in an
agreement concluded between the defendant and a Ms Nonthuthuko Masuku
(Ms Masuku)
in terms of which she was to provide consulting services
to the defendant. That agreement was a written one. The
material
terms of that agreement were:
a.
It would commence on 1 August 2014 and
would expire on 31 July 2019. This is referred to as the initial
period (the initial period).
b.
After expiry of the initial period the
agreement would continue for an indefinite period unless cancelled by
either party on three
months written notice.
c.
The agreement could be summarily
terminated on the occurrence of one or more events, which have been
spelt out but which are not
relevant for our present purposes.
[3]
A month or two later, i.e. during
August/September 2014, the same parties agreed orally that the
agreement referred to in the previous
paragraphs would continue as
is, save for the fact that the plaintiff would replace Ms Masuku as
the party that would render the
consulting services to the defendant.
[4]
The written agreement was not amended to
reflect this change. However, both the plaintiff and the defendant
continued to conduct
their affairs on the basis of the terms and
conditions set out therein.
[5]
On 14 January 2016 the defendant purported to
terminate the agreement with the plaintiff. Such purported
termination constituted
an unlawful repudiation of the agreement. The
plaintiff accepted the repudiation and cancelled the agreement.
[6]
As a result of the unlawful repudiation of the
agreement the plaintiff has suffered damages in the amount of
R3 432 800.00.
[7]
There is an alternative claim in which the
plaintiff contends that it, represented by Ms Masuku, and the
defendant, duly represented
by its authorised agent(s), concluded an
oral agreement whereby the plaintiff would supply consulting services
to the defendant.
The defendant unlawfully repudiated this agreement
causing the plaintiff a loss of R3 432 800.00.
[8]
The written agreement contains the well-known
and well utilised non-variation clause which provides that any
variation of the agreement
is invalid unless reduced to writing and
signed by both parties. The non-variation clause reads:
“
No
addition to, variation, or agreed cancellation of
this
agreement
shall be of any force or
effect unless in writing and signed by or on behalf of the parties.”
(Underlining added.)
The
exception
[9]
It is common cause that this clause was not
adhered to by the parties in that there was no variation of the
written agreement in
writing. Hence, the oral agreement could not
have altered the written one. Thus, the defendant claims that
the particulars
do not disclose a cause of action. Since the
plaintiff claims that the written agreement was orally amended –
by substituting
the parties - it falls foul of the well-established
legal principle that any variation of the agreement that is not
reduced to
writing and signed by both parties is of no force and
effect. According to this contention, the agreement the
plaintiff relies
upon for its cause of action – one between the
plaintiff and the defendant and not one between Ms Masuku and the
defendant
- does not exist or is not valid. Hence, it contends, the
particulars lack a cause of action and stand to be set aside on
exception.
[10]
There were other issues raised in the
exception, but these were abandoned at the hearing. Nothing more need
be said about them.
The
legal principles
[11]
This being
an exception to the particulars, it has to be adjudicated on the
basis of the entire particulars as it stands
[1]
,
that each and every factual averment pleaded in the particulars is
true
[2]
and that upon every
reasonable interpretation of the particulars no cause of action is
disclosed.
[3]
The particulars
must contain every fact (
facta
probanda
)
that is necessary for the plaintiff to prove. It does not, and is not
required to, contain every piece of evidence (
facta
probantia
)
that is required to prove the fact.
[4]
Should all the facts required to prove the claim be pleaded in the
particulars a cause of action would be disclosed.
Analysis
[12]
In the present case, however, the defendant contends that on the
facts pleaded, the particulars come up against an insurmountable
legal hurdle posed by the non-variation clause. This, therefore, is
not a case of the particulars containing insufficient or
irreconcilable
facta probanda,
but one of the
facta
probanda
relied upon in the particulars failing to overcome an
insurmountable legal hurdle. Essentially, the defendant’s
contention
is that the
facta probanda
establishes that there
was an oral amendment to the written agreement between the defendant
and Ms Masuku in circumstances where
the written agreement between
them specifically precludes such an oral variation.
[13]
There was some debate at the hearing whether this contention of the
defendant is correct in law, or whether the clause quoted
in [8]
above, read in the context of the entire written agreement, allowed
for an oral modification. There was also controversy
as to whether
the law regarding non-variation clauses has undergone a
transformative change in recent times. There was extensive
reference
to case law by both parties in this regard. Whilst the debate was
interesting and even engrossing at times, it is, in
my view,
inappropriate for this Court to decide such a matter on exception. It
is a matter that can be properly and exhaustively
addressed by the
trial court, which no doubt will analyse it in the light of the
evidence presented to it. The particulars cannot
be said to be
lacking a cause of action in these circumstances.
[14]
There is another problem with the defendant’s
contention. It is reasonable to read the particulars in a manner that
is consistent
with the claim that the plaintiff had concluded an oral
agreement between it and the defendant on the same terms and
conditions
that applied to Ms Masuku in the written agreement. On
this reading, the plaintiff is not claiming that the written
agreement between
Ms Masuku and the defendant was orally amended. Its
agreement is not the same one that Ms Masuku concluded. It may share
the same
terms and conditions as that of the written one, but it is
not the written one amended. It has no qualms with the contention
that
the written agreement is between Ms Masuku and the defendant, to
which it is not a party. Its only interest in that agreement is
that
it spells out terms and conditions that are the same as the one it
agreed orally with the defendant. It does not rely on the
written
agreement for anything more than that. The oral agreement is a
self-standing independent one that happens to share some
of the same
terms and conditions as that of the written one.
[15]
The defendant can plead to this claim. It may
agree or disagree on whether all or any of those terms form part of
the oral agreement.
Thereafter the triable issues would be
identified.
[16]
For these reasons the exception should be
dismissed. Both parties agreed that costs should follow the result.
Order
[17]
The following order is made.
a.
The exception is dismissed.
b.
The excipient/defendant is to pay the
costs.
_________________
Vally
J
Dates
of hearing: 4 February 2020
Date
of judgment: 23 April 2020
For
the Excipient/Defendant: G H Meyer
Instructed
by: Fluxmans Inc
For
the Respondent/ Plaintiff: R Grundlingh
Instructed
by: Joubert Attorneys
[1]
Salzmann
v Holmes
1914 AD 152
at 156;
Minister
of Safety and Security v Hamilton
2001 (3) SA 50
(SCA) at 52G-H;
Baliso
v Firstrand Ltd t/a Westbank
2017 (1) SA 292
(CC) at [33]
[2]
Champion
v J D Cilliers & Co Ltd
1904 TS 788
AT 790-1;
Oceana
Consolidated Co Ltd v The Government
1907 TS 786
at 788;
Stols
v Garlicke & Bousfield Inc
2012 (4) SA 415
(KZP) at 421H
[3]
Theunissen
v Transvaalse Lewendehawe Koōp Bpk
1988 (2) SA 493
(A) at 500E-F;
Lewis
v Oneanate (Pty) Ltd
[1992] ZASCA 174
;
1992 (4) SA 811
(A) at 817F
[4]
McKenzie
v Farmers Co-operative Meat Industries Ltd
1922 AD 16
at 23;
Evins
v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at 838E-F