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Engineering Council Of South Africa v Madonsela and Others [2023] ZAGPPHC 265; 58061/2021 (28 March 2023)

80 Reportability
Contract Law
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Brief Summary

Exceptions — Pleadings — Exception to plea and third party notice — Plaintiff and third parties alleging lack of necessary averments to sustain a defence and cause of action — Defendant's plea based on apportionment of damages, contributory negligence, indemnification, and compromise — Court finds that apportionment of damages and contributory negligence do not apply in contractual claims — Defendant fails to establish a right to indemnification or a valid basis for compromise — Exceptions upheld, plea and third party notice struck out.

Comprehensive Summary

Summary of Judgment


1. Introduction


The proceedings concerned exceptions brought in terms of the Uniform Rules of Court against both (a) the defendant’s plea and (b) the defendant’s third party notice. The Engineering Council of South Africa (as plaintiff) and the first and second third parties (as excipients) contended that the plea and third party notice were excipiable on the basis that they either lacked averments necessary to sustain a defence (in relation to the plea) or lacked averments necessary to sustain a cause of action (in relation to the third party notice).


The parties were the Engineering Council of South Africa as plaintiff, Sipho Ernest Madonsela as defendant, and Boitumelo Cox Mokgoro and the Engineering Council of South Africa as first and second third parties respectively. The judgment addressed the plaintiff’s and third parties’ exceptions simultaneously, while distinguishing their respective grounds of complaint.


Procedurally, the plaintiff instituted action against the defendant in December 2021 for alleged breach of a written employment contract concluded in September 2014 and subsequently renewed. The defendant defended the action and, after a notice of bar, delivered a plea and a third party notice in April 2022. The plaintiff delivered a notice of exception in May 2022, and the third parties followed with their notice of exception in June 2022. The matter came before the High Court for determination of these exceptions.


The dispute’s general subject matter was the defendant’s pleaded attempt to resist contractual damages and to shift or share liability by invoking, among other things, apportionment of damages, contribution, indemnification, compromise, lis pendens, and prescription, and by joining third parties via Rule 13 procedures.


2. Material Facts


The court proceeded from the pleaded case and the procedural posture relevant to exceptions. The plaintiff’s claim was founded on an alleged breach of a written employment contract. The plaintiff alleged that the defendant, while employed as its chief executive officer, acted contrary to material (alternatively express, further alternatively implied) contractual terms requiring him to remain subject to policies and procedures, to conduct himself professionally with integrity, and to act in good faith.


The particulars of breach relied upon in the pleadings included allegations that the defendant failed to devote his full time and attention to the plaintiff’s affairs, failed to comply with the plaintiff’s policies and procedures, failed to conduct himself professionally, failed to subscribe to standards of integrity, and failed to act in good faith.


After the defendant delivered his plea, he advanced defences which included an express allegation that, if he were found negligent (which he denied), his liability should be reduced and apportioned under the Apportionment of Damages Act, with reference to the third parties being joined. He also delivered a third party notice in which he purported to pursue relief against the third parties (including on the basis of indemnification and/or contribution as understood by the excipients’ grounds).


In addition, the defendant pleaded that the plaintiff’s claim (in relation to a specified component described as “claim E” in the plea) had allegedly been extinguished, abandoned, or compromised “by the plaintiff in the absence of the defendant”. He also raised a plea of lis pendens by alleging that disputes between the plaintiff and a person identified in the plea (Mr Tsatsawane) were lis pendens. A defence of prescription was pleaded on the basis that the plaintiff was aware (or ought to have been aware) of its cause of action “at the very latest in October 2017”, and that summons was instituted on 8 December 2021, more than three years later.


During argument, and after taking instructions, the defendant’s counsel informed the court that the defendant abandoned opposition to the complaint that the Apportionment of Damages Act did not apply on these facts.


3. Legal Issues


The central legal questions were whether, on the face of the defendant’s pleadings:


The plea contained sufficient material averments to sustain the defences raised, including the defences of apportionment/contributory negligence, compromise, lis pendens, and prescription, and whether the plea was pleaded with adequate clarity and completeness as required by the rules.


The third party notice contained sufficient material averments to sustain a cause of action against the third parties based on indemnification and/or contribution, and whether the third party procedure was properly invoked given the nature of the plaintiff’s contractual claim.


The dispute was primarily concerned with questions of law and pleading sufficiency, namely the legal availability of certain defences in a contractual damages claim and whether the pleaded facts met the minimum threshold required to sustain the pleaded defences and third party claims. It also involved the application of established pleading rules to the pleaded facts, rather than resolution of factual disputes on evidence.


4. Court’s Reasoning


The court set out the applicable pleading framework. It referred to Uniform Rule 23(1), which permits an exception where a pleading is vague and embarrassing or lacks averments necessary to sustain an action or defence. The court also referred to Uniform Rule 18(4), requiring pleadings to contain a clear and concise statement of material facts relied upon, and Rule 13(6), allowing a third party to plead or except to a third party notice as if a defendant.


The court reiterated the general approach to exceptions drawn from authority. It referred to the principle that an exception that a pleading discloses no cause of action (or defence) cannot succeed unless the claim or defence is bad in law on every interpretation of the facts as pleaded, and that courts should avoid an overly technical approach. The court emphasised that the purpose of exceptions is to weed out claims or defences that are bad in law at an early stage, while accepting factual allegations in the relevant pleading for purposes of the exception.


Against that framework, the court first addressed the defendant’s reliance on apportionment of damages. It noted that the plaintiff’s claim was pleaded as a contractual claim for damages arising from breach of contract. Relying on authority holding that the Apportionment of Damages Act was designed to address a mischief within delict, and that its wording does not fit a contractual claim, the court concluded that the apportionment defence did not arise on these facts. This conclusion was reinforced by the defendant’s concession abandoning opposition on this ground.


The court then reasoned that, once apportionment and contributory negligence were not available in principle in this contractual setting, the defendant’s reliance on contribution suffered a “knock-on effect”. It held that, in a contractual breach claim, negligence does not feature as a determining element in deciding whether there has been a breach, and the defence of contributory negligence was therefore incompetent in the circumstances. On that basis, the exception directed at that defence succeeded.


Turning to indemnification and the third party procedure, the court considered Rule 13(1)(a) and the recognised bases for third party joinder (contribution, indemnification, or declaratory relief). The court accepted as trite that a right of indemnity arises from contract (express or implied), by statute, or where implied by law. However, it found that the defendant’s third party notice did not plead a contractual (or statutory or legal) foundation establishing an indemnity right against the third parties. The court further observed that even the relief sought did not mention indemnification. Accordingly, the necessary averments to sustain a claim for indemnification were absent.


The court’s reasoning on the third party notice was that the joinder was predicated on a defence not available in law to the defendant in a contractual claim (namely apportionment/contributory negligence), rendering the third party procedure fatally flawed and incapable of cure on the pleaded approach.


The court then considered the defence of compromise (transactio). It referred to authority describing a transaction as an agreement to end or prevent litigation, closely equivalent to a consent judgment, and requiring true consensus. On the defendant’s pleaded version, the compromise was alleged to have occurred between the plaintiff and the third parties, in the defendant’s absence. The court held that the defendant could not rely on compromise as a defence on these pleadings because the plea did not allege the conclusion of a contract to compromise involving the defendant, nor did it plead the essential elements necessary to rely on such a contract. The court also invoked Uniform Rule 18(6), which requires a party relying on a contract to plead its essential terms and annex a copy where applicable, and found that the defendant failed to plead when and where the compromise was concluded, who the parties were, and what the material terms were. The absence of these material facts meant the defence was not properly pleaded and was excipiable.


The court addressed the defendant’s reliance on lis pendens by applying the requirements that the litigation be between the same parties, on the same cause of action, and for the same relief. The court found that the defendant had not pleaded the necessary material facts to meet these requirements, including the existence of pending litigation between the same parties on the same cause and in respect of the same relief. It emphasised that dilatory defences and pleas in bar must be pleaded with all material facts and essentialia. This exception accordingly succeeded.


On prescription, the court noted authority that the onus rests on the party raising prescription to prove both inception and completion of the prescription period. It held that the defendant’s reliance on “October 2017” without identifying a specific date left the pleading incomplete, because prescription turns on dates rather than an unspecified month. The court also noted the absence of a prayer for prescription. It therefore upheld the exception on this ground.


Finally, the court dealt with a further complaint advanced by the plaintiff and third parties to the effect that there was no lis between the plaintiff and the defendant (in the context of third party procedure) and that the defendant could not seek relief against third parties in answer to the plaintiff’s contractual claim. The court rejected this submission as contrary to authority holding that Rule 13 is designed to avoid multiplicity of actions and to consolidate issues within a single action. On that basis, that particular ground of exception did not succeed.


Having upheld the substantial exceptions, the court concluded that the defendant’s third party procedure was incompetent in the circumstances, that the third party notice was ill-conceived, and that it fell to be dismissed in its entirety. The plea would have to be amended to remove defences not available in law.


5. Outcome and Relief


The court upheld the plaintiff’s first, third, fourth, and fifth grounds of exception, and dismissed the plaintiff’s second ground of exception. The court upheld the third parties’ first to fifth grounds of exception.


The defendant was granted leave to amend the plea within 15 days of the order. The defendant’s third party notice and annexure were dismissed, and the defendant’s claim against the third parties was dismissed.


The defendant was ordered to pay the costs of both the plaintiff and the third parties, the court applying the principle that costs follow the result and finding no reason to depart from it.


Cases Cited


Vermeulen v Goose Valley Investments (Pty) Ltd 2001 (3) SA 986 (SCA).


Pretorius and Another v Transport Pension Fund 2018 (2) SA 37 (CC).


Thoroughbred Breeders' Association of South Africa v Price Waterhouse 2001 (4) All SA 161 (A).


Eimcon (SA) (Pty) Ltd v P Mattioda's Construction Co (SA) (Pty) Ltd 1967 (1) SA 236 (N).


Gollach & Gomperts (1967) (Pty) Ltd v Universal Mills & Produce Co 1978 (1) SA 914 (A).


Georgias v Standard Bank Chartered Finance Zimbabwe Ltd 2000 (1) SA 126 (ZS).


Caesarstone Sdot-Yam Ltd v The World of Marble and Granite 2000 CC and Others 2013 (4) All SA 509 (SCA).


Gericke v Sack 1978 (1) SA 821 (A).


MCC Contracts (Pty) Ltd v Coertzen [1998] 4 All SA 503 (A).


Legislation Cited


Apportionment of Damages Act.


Rules of Court Cited


Uniform Rule 23(1).


Uniform Rule 18(4).


Uniform Rule 18(6).


Uniform Rule 13(1)(a).


Uniform Rule 13(6).


Held


The court held that the defendant’s plea was excipiable to the extent that it relied on defences not available on the pleaded contractual claim and/or was pleaded without the necessary material averments. In particular, the defendant’s reliance on apportionment of damages/contributory negligence in response to a contractual damages claim was not legally competent on the pleaded approach, and the associated reliance on contribution could not be sustained.


The court further held that the defendant’s third party notice did not disclose a sustainable cause of action for indemnification (or related relief) because the defendant failed to plead a contractual, statutory, or legally implied basis for indemnity, and the third party procedure was pursued on an incompetent foundation.


The court also held that the defences of compromise, lis pendens, and prescription were not supported by pleaded material facts meeting the requirements for those defences, and were accordingly excipiable. A separate complaint directed at the propriety of third party procedure on the basis that “no lis arises” between a plaintiff and third party was rejected with reference to authority explaining the consolidating purpose of Rule 13.


LEGAL PRINCIPLES


The judgment applied the principle that an exception on the basis that a pleading discloses no cause of action or defence will only succeed where the pleading is bad in law on every interpretation of the facts as pleaded, and that courts accept pleaded factual allegations as true for purposes of deciding an exception, without resort to extraneous material.


It applied the pleading requirement that a party must plead a clear and concise statement of material facts supporting the cause of action or defence, and that where a party relies on a contract (including a compromise/transaction), the essential terms and elements supporting that reliance must be pleaded in compliance with the rules.


The judgment applied the principle that the Apportionment of Damages Act (and related notions of contributory negligence and apportionment) does not, on the authority relied upon, provide a mechanism to reduce damages in a pure contractual breach claim as pleaded, and that attempting to found contribution or third party relief on that footing is incompetent.


It applied the principle that indemnification must be grounded in an identifiable source such as contract, statute, or a basis implied by law, and that a third party notice must plead the material facts establishing such a right.


It applied the requirements for lis pendens, namely identity of parties, cause of action, and relief, and confirmed that a party raising the defence must plead the necessary material facts establishing these elements.


It applied the principle that a party pleading prescription bears the onus of establishing both the inception and completion of the prescription period and that the pleading must be sufficiently particular, including identifying the relevant dates upon which prescription is founded.

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[2023] ZAGPPHC 265
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Engineering Council Of South Africa v Madonsela and Others [2023] ZAGPPHC 265; 58061/2021 (28 March 2023)

IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL
DIVISION,
JOHANNESBURG
CASE
NO: 58061/2021
(1)
REPORTABLE: YES / NO
(2)
OF INTEREST TO OTHER JUDGES: YES / NO
(3)
REVISED: YES / NO
DATE:
28 March 2023
In
the matter
between:
ENGINEERING
COUNCIL
OF
SOUTH AFRICA           Plaintiff
And
SIPHO
ERNEST MADONSELA                                     Defendant
And
BOITUMELO
COX
MOKGORO
First Third Party
ENGINEERING
COUNCIL OF SOUTH AFRICA            Second
Third
Party
JUDGMENT
Delivered:
This Judgment
was
prepared
and
authored
by the
Judge
whose name is reflected and is
handed down electronically
by
circulation
to
the
parties/their
legal
representatives by email and by
uploading
it to
the
electronic file of this matter on
CaseLines.
The date for
hand-down
is deemed
to
be 28
March
2023.
MOTHAAJ
INTRODUCTION
1.
Before
this
Court
are
two
exceptions brought by the Plaintiff and the first
and
second third patiies against
the
plea and
the
third party notice. The excipients
submit
that
the
plea
lacks
averments
necessary to
sustain a
defence
and third
party notice
lacks
averments
nece
ssa
ry
to
sustain a
cause
of action against the third
parties.
Five
grounds
of
complaint are identified
,
as
contemplated in terms
of
Rule
23
(1) as well
as
Rule 13 (6) of the
Uniform
Rules
of
this
Court.
Even though
both
the exceptions
of
the third parties and the Plaintiff
will
be
dealt
with
at the
same
time, I
need to point
out
their
various
grounds
of
complaint.
1.1
The five grounds of complaint raised
by the third
parties are:
First
ground of exception:
•
"The
defendant has failed to make out any cause of action against the
third parties for indemnification."
[1]
Second
ground of
exception:
•
"The
defendant has failed to make out any cause of action against the
third parties for contribution."
[2]
Third
ground of exception:
•
"The
defendant's pleading envisages that any order that is made for
payment against the defendant in the plaintiffs claim,
or any portion
thereof, will be transferred
for
payment to the third parties."
[3]
Fourth
ground
of
exception:
•
"The
defendant appears to be relying on a claim against the third parties
relating to settlement or compromise"
[4]
Fifth
ground of exception
•
"The
defendant appears to found his causa against
the
third
parties
on
a
claim that the defendant's liability should be reduced and
apportioned
in accordance with the Apportionment of Damages Act."
[5]
1.2
The five grounds of complaint
raised
by the plaintiff are:
First
ground of exception
:
•
Similarly
to
the
third
parties,
"The
defendant
appears
to
found
his
entire
version
to
the
plaintiff's
various
claims
and
causa,
on
a defence that the defendant's liability should be reduced and
apportioned in accordance with the
Apportionment
of Damages Act.”
[6]
Second
ground of exception:
•
Similarly
to the third parties, "The defendant has predicated his Plea, or
a substantial portion thereof, on the alleged actions
of the first
and second third parties."
[7]
Third
ground of exception:
•
"The
defendant appears to have predicated his defence, or part thereof, on
the special plea of
lis
pendens
and/or
prescription, although it remains unclear."
[8]
Fourth
ground of
exception:
•
"The
defendant
has,
in pleading to the Particulars of Claim, relied on a multiplicity of
alternative defences.... The absence of the necessary
material facts
and
essentialia
particular
to any of the alternative
defences,
and the
absence
of
self-contained alternative defences, render the Plea excipiable."
[9]
Fifth
ground of
exception:
•
"The
defendant,
in
his
various
alternative
defences,
appears
to
be
relying on a defence relating to settlement, or compromise."
[10]
THE
FACTUAL
BACKGROUND
2.
On
7 December 2021, the Plaintiff instituted summons against the
Defendant for the breach of a written employment contract, which
was
entered on or about 19 September 2014 and later renewed. The
Plaintiff submitted that the Defendant, in his role as a chief

executive officer and an employee of the Plaintiff, breached the
terms of his employment contract. According to the Plaintiff,
he
acted contrary to the following "material, alternatively,
express, further alternatively, implied terms of the contract"
[11]
namely that:
"5.5
Whilst in the
employ
of
the plaintiff, the
defendant
shall
be subject to the plaintiffs policies
and procedure, as amended
from
time
to time
5.6
The
defendant
shall
be
required
to conduct himself in a professional manner
throughout his
employment with
the
plaintiff
and shall subscribe to standards
of
the utmost integrity.
5.7
The
defendant owes a duty of good faith to the plaintiff in all
circumstances."
[12]
3.
The
defendant, in pai1icular, failed "and/or neglected to devote his
whole time and attention to the affairs of the plaintiff;
Failed
and/or
neglected
to
abide by and act in accordance with the plaintiffs policies and
procedures, as amended
from
time to time; Failed and/or neglected to conduct himself in a
professional manner throughout his employment with the plaintiff;

Failed and/or neglected to subscribe to standards of the utmost
integrity; and Failed and/or neglected to act in good faith towards

the plaintiff in all circumstances."
[13]
4.
The
action was
defended. Following a notice of bar
,
on 22
April
2022
the Defendant delivered his plea and
Third-Party
notice.
On
17
May 2022,
the
Plaintiff filed its notice of exception, and the Third-parties filed
its notice of exception on 7
June
2022.
THELAGALFRAMEWORK
5.
Uniform
Rule
23
(1) reads
as
follows:
"(1)
Where any pleading is vague and embarrassing, or lacks averments
which are necessary to sustain an action or defence,
as the case may
be, the opposing party may, within the period allowed for filing any
subsequent pleading, deliver an exception
thereto
and..."
[14]
6.
Uniform Rule
18
(
4)
is
clear that every pleading must
"conta
in
a clear and concise statement
of
the material facts
upon
which the
pleader
relies for
his
claim
,
defence
or answer
to
any
pleading...
"
7.
Uniform
Rule 13
(6)
reads
as
follows:
"(6)
The third party may plead or except in the third party notice as if
you were a defendant to the action.. "
[15]
8.
In
the matter of
Vermeulen
v Goose Valley Investments (PTY)Ltd
[16]
the
court said:
"It
is trite law that an
exception
that cause of action is not disclosed by a pleading cannot succeed
unless it can be shown that ex facie the allegations
made
by the plaintiff and any other document upon which his or her cause
of action may be based, the claim is (not maybe) bad in
law"
[17]
9.
The
Court in
Pretorius
and Another v Transport Pension Fund
[18]
held:
"In
deciding an exception a court must accept all allegations of fact
made in the particulars of claim as true,· may
not have regard
to any other extraneous facts or documents; and may uphold the
exception to the pleading only when that excipient
has satisfied the
court that the cause of action or conclusion of law in the pleading
cannot be supported on every interpretation
that can be put on the
facts. The
purpose
of an exception is to protect litigants against claims that are bad
in law or against an embarrassment which is so serious
as to
merit
the costs even of
an
exception. It is a useful procedural tool to
weed
out bad claims at an early stage, but an overly technical approach
must be avoided."
[19]
ISSUES
10.
Firstly
,
the
grounds
of
complaint
which
straddle
between
the Plaintiff
and
the Third parties
are
Appotiionrnent
of
Damages,
contributory
negligence,
ind
emnification
and compromise.
I
commence with
the
apportionment
of damages.
The
Defendant in its plea
stated
the following:
"Further
alternatively, in the event find that the defendant is found to have
been negligent as aforesaid, which is denied,
the defendant pleads
that the defendant's liability should be reduced and apportioned in
accordance with the Apportionment of Damages
Act, with the liability
of the first and second third parties, joined as such in these
proceedings."
[20]
11.
Both
the
Plaintiff
and
Third
parties
submitted
the
following:
"As
clearly appears from the plaintiffs
causa,
the
plaintiff has instituted proceedings
against
the
defendant
on
the
basis
of
a
material
breach
of
his
employment
contract, from
which
breach
the plaintiffs
damages
have
arisen."
[21]
12.
Addressing
the issue of Apportionment of Damages Act, the Court in
Thoroughbred
Breeders' Association of South Africa v Price Waterhouse
[22]
held
that:
"At
that time the concepts of both contributory negligence and "last
opportunity"
were
unknown to a claim based on breach of contract. That being so, it
seems to me to follow that the Act was designed to address
and
correct a particular mischief that was identified as such within the
law of delict; that it was confined to that particular
mischief; and
that the corresponding problem that might arise within the law of
contract was never within the legislature's compass.
The express
wording used in the Act does not
fit
a contractual claim. In my view the com.fort of Act was accordingly
not available to PW in this case to counter or curtail TBA
's
claim for damages."
[23]
13.
During
the
proceedings, it
soon
became
obvious
that the
Apportionment
of Damages
Act
does not apply under these facts. Having
taken instructions,
Counse
l
for
the Defendant
infonned
the
court
that the Defendant
was abandoning
its
opposition
to
this
ground of comp
l
aint.
14.
Secondly, the
concession
on the
apportionment
of damages has
a
knock-on
effect
on
the defence of contribution. As already
canvased the issue of
contr
ibut
ory
negligence,
as
well as apport
i
onment
of liability, does not arise
in
a contractual claim. Fault in the form of negligence does not feature
in deciding whether a party has breached the contract or
not. Since
this defence is not available in the law for the Defendant, the
defence of contributory negligence is incompetent under
these
circumstances. Accordingly, the exception is upheld.
15.
The next ground of complaint to be examined
is the issue of indemnification, and this
called into question the appropriateness of the third party procedure
under these circumstances.
16.
Rule
13 (1) (a) of the Uniform Rules of this Court sets out the basis on
which a third party can be joined, namely contribution,

indemnification and a declaratory.
In
its
third
party
notice,
the
Defendant
clearly
states
that
it
claims
an indemnification from the third parties. It is trite that a right
of indemnity only
arises
from
contract,
which
contract
may
be
express
or
implied,
by
statute or where it is implied by law.
[24]
However,
the Defendant does not show that it has a right against the third
parties for an indemnity arising in contract, statute
or by law. The
Defendant has not pleaded in its third party notice a right in
contract on which it basis its claim for an indemnity
against the
third parties. Even the relief that is prayed for does not mention
indemnification. Therefore, the Defendant has not
made out a case for
indemnification at all.
17.
The challenge that is faced
by Defendant
is
that he predicated
the
joinder of the third
party
to these
proceedings
on
a
defence
that is not
available
to
him in law. It simply cannot be cured. It
is fatally flawed. Therefore it stands to reason that the exception
must prevail.
18.
The next
ground
of complaint 1s
compromise.
The
Defendant
pleaded as
follows:
"Alternatively,
the plaintiffs
claim
arising out of the cause of action
asserted
in claim E has been extinguished, alternatively abandoned
alternatively compromised
by
the plaintiff in the absence of the defendant."
[25]
19.
The
head-note
in
Gollach
&
Gomperts(l967)
(Pty)
Ltd
v
Universal
Mills &
Produce
Co
[26]
is
instructive:
"A
transaction is
an
agreement
between two
or
more
persons
either to
end
litigation or to prevent
litigation
resulting
from
the
differences between them.
It
is most
closely
equivalent
to
consent
judgment.
Whether
extra-judicial embodied
in
an
order of Court
,
it
has
the
effect
of
res judicata and, like any other
contract and any order of
court,
made
by
consent,
it
may be
set
aside
on
the
grounds
that
it
was
fraudulently
obtained or
on
the grounds of
Justus
error,
provided
the
error
vitiated
true
consent
and
did not merely
relate
to
motive
or
the
merits
of a
dispute
which
it
was
the
very
purpose
of
the parties
to
compromise.
"
20.
The
Coutt
in
Georgias
v
Standard
Bank
Charted
Financed
Zimbabwe
Ltd
[27]
regarded
"compromise or transatio" as " ... the settlement by
agreement of disputed obligations or of a lawsuit the
issue of which
is uncertain. The parties
agreed
to regulate the intention in a particular way, each receding from his
previous
position
and
conceding
something
-
I
either diminishing
his
claim
or increasing his liability."
21.
The Defendant cannot rely on compromise as
a defence, because the compromise was between the Plaintiff and the
third parties. The
Defendant does not plead any conclusion of a
contract between the Plaintiff and the Defendant or third parties.
Put differently
there is no
animus
contrahendi
which is a
sine
qua non
for the conclusion of a
transactio.
22.
Rule 18 (6) requires a party who relies on
a contract to plead all essential elements of that contract and a
written copy thereof
to be annexed. The Defendant does not set out
the te1ms of this compromise such as whether the Defendant
and the Plaintiff were parties
to the contract,
where
the contract was concluded
,
when the contract was concluded and finally
the terms of the contract in which the Defendant seeks to rely. There
are no material
facts to sustain this defence
,
therefore, the complaint is well-founded
and must
succeed.
23.
The
next ground of complaint is the defence of
lis
pendens.
The
Defendant's plea stated that "the disputes between the plaintiff
and Mr Tsatsawane
is
lis
pendens."
[28]
However,
the Defendant does not meet the requirements as set out in
Caesarstone
Sdot-Yam Ltd v
The
World of Marble
and
Granite 2000 CC
and
others,
[29]
where
the Court said:
"Voet
said that there are three requirements for a successful reliance on a
plea of lis pendens. There are that the litigation
is between the
same parties,· that the cause of action is the same; and, that
the same relief is sought in both. In Hassan
and another v Berrange
NO,
-
Zulman JA express these requirements in
the following terms:
'Fundamental
to the plea of Lis alibi pendens is the requirement that the same
plaintiff has instituted action against the same
defendant for the
same thing arising out of the same cause.'"
[30]
24.
The
Defendant
does not
set
out
the material facts necessary to justify the reliance on this defence.
In his plea, the Defendant does not allege that there
is a current
pending litigation between the same parties, which litigation is
predicated on the same cause of action between the
same parties and
in respect
of
the
same
subject
matter.
Dilatory
defences and
pleas
in
bar
must
be
pleaded in a manner that
includes
all material facts and
essentialia.
This
ground
of
exception
is
meritorious and, thus, must
succeed.
25.
The next
ground
of complaint is against the defence of
prescription. The Defendant at paragraph
24
of his plea states the following:
"the
defendant was therefore
aware
,
alternatively
ought
reasonably
to have
been
aware, of its
cause
of
action against
the
defendant, at the
very
latest
in October 2017.
These
proceedings
were
instituted
on 8 December 2021, more
than
three
after the cause
of action arose.
Accordingly
the
plaintiffs claim against the defendant has,
pro
tanto,
prescribed.
"
26.
Dealing with the issue of prescription in
the case of
Gericke v Sack,
the
Court said:
"
The
onus was clearly on the respondent to establish this defence. He
could not succeed if he could not prove both the date of the

inception and the date of the completion of the period of
prescription."
[31]
27.
Counsel for the Plaintiff and third parties
correctly submitted that the picture is not complete in
that
we
do not know
which
date in October 2017 the Defendant is
relying on. The defence of prescription rotates around dates and not
months only. To simply
mention a month in a
year
without a date is not in compliance with
the case law. Furthermore, there is no prayer for prescription.
Accordingly, this ground
of complaint must be upheld.
28.
Finally,
Counsel for both the Plaintiff and third parties submitted that there
was no
lis
between
the Plaintiff and the Defendant. The Defendant cannot seek relief
against third parties in answer to the Plaintiffs contractual
claim.
This submission is against the authority
in
MCC Contracts (Pty) (Ltd) v Coertzen
[32]
where
the court held:
"However,
in
reaching
it the Judge reasoned that because,
on
certain authority,
there is
no
lis
between a plaintiff
and
a third party
"two
'separate
actions'
each
with
its
own
set
of
pleadings
came
into existence
one
between the
plaintiff
and
the defendant and
one
between
the
latter and
the
third party". With that
analysis, with
respect, I
do
not
agree.
The rule was designed to avoid a multiplicity of actions and to
consolidate
,
in
specified circumstances, a multiplicity of issues between
a
number
of
litigants
,
all
in
a
single
action.
It
reads
accordingly.
Whether
or not a lis does arise between the plaintiff and a third party (and
conceivably
one
could,
ff
regard
be
had
to
sub-rules
(7)
and
(8)
and even if separation of issues occurs pursuant to sub-rule (9), the
Rule
provides for only one action and that action is necessarily the one
began by the plaintiff. All this is plain from this first
line of
sub-rule (1) in which the "action" referred to cannot be
any other action than that instituted by the plaintiff
and the fact
that the reference to
"the
action" or
"action"
in the latter
sub-rules
are
clearly to the action
referred
to
in sub-rule (])."
[33]
29.
Accordingly,
this
ground
of
complaint
falls
to
be dismissed.
30.
It
is
clear
to
me that
the
Defendant's
third party procedure is
incompetent
under these circumstances. Therefore, the
third party notice was
ill-conceived
and
falls
to be
dismissed in its entirety. The Defendant's plea will have to be
amended
to
remove
the defences
that
are
not available
in
law
to the Defendant.
COSTS
31.
It
is
trite
that
costs
follow
the
action.
There
is
no reason
to
depart
from
this well
established
principle
of
follow. In the result, I
make the following order.
ORDER
I.
The
Plaintiffs
First,
Third,
Fourth
and
Fifth
grounds
of
exception
are upheld.
2.
The
Plaintiffs
Second ground of exception
is
dismissed.
3.
The
Defendant
is granted
leave
to amend
his
plea
within
15
days of
this
order.
4.
The
Third
parties' First to
Fifth grounds
of
exception
are
upheld.
5.
The
Defendant's
Third
Party
Notice
and
Annexure
are
dismissed.
6.
The
Defendant's
claim
against
the Third
Parties
is dismissed.
7.
The
Defendant
to
pay
costs
of
both the Plaintiff
and the Third Parlies.
MOTHA
AJ
ACTING
JUDGE OF THE HIGH COURT
GAUTENG
LOCAL DIVISION OF THE HIGH COURT
,
JOHANNESBURG
Date
of hearing:      28 February 2023
Date
of
judgment:
28
March 2023
Appearances:
For
the Plaintiff:
Adv.
M. Scheepers
And
The
Third Parties:
(Instru
c
ted
by: Malatji
and
Co.
Attorneys)
For
the
Defendant: Adv.
N.
Mfeka (Instructed
by: Strauss Daly)
[1]
third
parties notice of exception para 1
[2]
supra
para 9
[3]
Supra
para 19
[4]
supra
para 24
[5]
supra
para 30
[6]
notice
of exception para 1
[7]
supra
para 10
[8]
Suprapara
20
[9]
Supra
paras27and31
[10]
Suprapara32
[11]
particulars
of claim para 5
[12]
supra
paras 5.5to5.7
[13]
supra
parasl0.ltol0.5
[14]
Erasmus
Superior Court practice page 01 -
293
[15]
supra
page D1
-
143
[16]
2001
(3)SA
986
(SCA)
[17]
supra
para 7 page 997
[18]
2018
(2) SA 37
(CC)
[19]
supra
para 15
[20]
defendant's
plea para 45
[21]
notice
of exception part 3
[22]
2001(4)
all SA 161
(A)
[23]
supra
para 74 of South Africa
[24]
Eimcon
(SA)(Pty)Ltd v P Mattioda's Construction
Co
(SA) (PTY) Ltd
1967
(1)SA 236
(N)
at
332H -
33A
[25]
supra
para 58. l.
[26]
1978
(1)SA 914 (AD)
[27]
2000
(1) SA 126(2S)
at
1381-140D
[28]
supra
para 57.1.
[29]
2013
(4)AII SA S09 (SCA)
[30]
Supra
para 12
[31]
1978
(1) (A) at 827H -
828
A
[32]
[1998]4
All SA 503
(A)
[33]
supra
para 8

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