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[2025] ZAGPJHC 33
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Ekxellent Recruitment Solutions v Sibanye Stillwater (2024/020746) [2025] ZAGPJHC 33 (21 January 2025)

IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL
DIVISION, JOHANNESBURG
CASE
NO:
2024/020746
(1)
Reportable:
No
(2)
Of
interest to other Judges: No
(3)
Revised
Date:
21/01/2025
In the matter between:
EKXELLENT
RECRUITMENT SOLUTIONS
Excipient/Defendant
and
SIBANYE
STILLWATER
Plaintiff
JUDGMENT
MAIER-FRAWLEY J:
1.
The plaintiff claims damages arising from
an alleged breach of contract by the defendant.
Ex
facie
the Particulars of Claim, the
Plaintiff avers as follows:
(i)
That Defendant entered into an agreement
with Plaintiff in May 2014 in terms whereof Plaintiff provided labour
services to the defendant
by providing Operators for the defendant..
(ii)
That it was a term of the agreement “that
during termination of services that ‘
in
the event of termination of the agreement for convenience of anyone
of the parties, or on the expiry of this agreement, the parties
may
negotiate a once off placement fee should Lonmin wish to
employ an of the seconded persons’
"
(iii)
That the defendant breached terms of the
agreement by not paying the placement fee to Plaintiff, despite
having sent numerous requests
for the Defendant to honour terms of
the agreement. and
(iv)
That the Defendant’s conduct has
caused damages to Plaintiff in the amount of R 2 000 000. calculated
at 10% of the annual
package for the fourteen (14) employees, for
which amount the defendant is indebted to the plaintiff.”
2.
The defendant has raised an exception
against the plaintiff’s particulars of claim on grounds that
the particulars do not
disclose a cause of action  and in
addition, are also vague and embarrassing.
3.
The legal principles governing exceptions
have been articulated in several cases, of which I mention but a few
as relevant to these
proceedings:
4.
In
Vermeulen
v Goose Valley Investments (Pty) Ltd
,
[2001]
3 All SA 350
(A) at para 7.
Marais
JA stated as follows:
“
It is trite law
that an exception that a 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 cause of action may be based, the claim
is
(not
may be) bad in law. . . .”
.
5.
In
Living
Hands (Pty) Ltd NO & Another v Ditz & Others
2013
(2) SA 368
(GSJ)
at 374 G
,
Makgoka J conveniently summarized the principles governing
exceptions, as follows:
“
(a)
In considering an exception that a pleading does not sustain a
cause of action, the court will accept, as true, the allegations

pleaded by the plaintiff to assess whether they disclose a cause of
action.
(b)
The object of an exception is not to embarrass one’s opponent
or to take advantage of a technical flaw, but to dispose
of the case
or a portion thereof in an expeditious manner, or to protect oneself
against an embarrassment which is so serious as
to merit the costs
even of an exception.
(c)
The purpose of an exception is to raise a substantive question of law
which may have the effect of settling the dispute between
the
parties. If the exception is not taken for that purpose, an excipient
should make out a very clear case before it would be
allowed to
succeed.
(d)
An excipient who alleges that a summons does not disclose a cause of
action must establish that, upon any construction of the
particulars
of claim, no cause of action is disclosed.
(e)
An over-technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed
out cases
without legal merit.
(f)
Pleadings must be read as a whole, and an exception cannot be taken
to a paragraph or a part of a pleading that is not self-contained.
(g)
Minor blemishes and unradical embarrassments caused by a
pleading can and should be cured by further particulars.”
6.
In
Jowell
v Bramwell-Jones and Others
1998
(1) SA 836
(W)
at 913B-G
the
court stated that:
“…
The
Plaintiff is required to furnish an outline of its case. This does
not mean that the Defendant is entitled to a framework like
a
crossword puzzle in which every gap can be filled by logical
deduction. The outline may be asymmetrical and possess rough edges

not obvious until explored by evidence. Provided the defendant is
given a clear idea of the material facts which are necessary
to make
the cause of action intelligible, the plaintiff will have satisfied
the requirements”.
7.
In
Venter
and Others NNO v. Barritt Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
,
2008
(4) SA 639
(C)
at para 14, the court .
referred
to the phrase – vague and embarrassing – as follows:
“
Generally,
the information in a declaration or particulars of claim need only be
sufficient for the defendants to plead thereto.
The exception stage
is not the time for the defendants to complain that he does not have
enough information to prepare for trial
or may be taken by surprise
at the trial. That comes later in the (often long and cumbersome)
journey to the doors of the court,
after, inter alia, discovery of
documents and requests for trial particulars had been made
.”
8.
I turn now to deal with the grounds of exception relied upon by the
defendant.
9.
First ground:
Non-compliance
with rule 18 in that plaintiff failed to state whether the contract
is a written and/or oral agreement and failed
to aver where and by
whom it was concluded
.
10.
In
ABSA
Bank Ltd v Jenzen, Kevin Glynn; ABSA Bank Ltd v Grobbelaar
,
James
Case
No. 2014/877 (GLD). Sutherland J considered whether non-compliance
with Rule 18(6) could found an exception. He concluded,
with
reference to the judgment by Rogers J (Traverso DJP concurring) in
Absa
Bank ltd v Zalfest Twenty (Pty) Ltd & ano
2014
(2) SA 119
(WCC), that such a complaint cannot constitute the
substance of an exception. I am in respectful agreement with the
learned judge’s
conclusion or put differently, I cannot find
that it is wrong.
11.
I
am accordingly not persuaded that this ground has merit.
12.
Second ground:
Plaintiffs
Particulars of Claim is vague and embarrassing in that it lacks the
necessary averments in respect of the number of employees
allegedly
provided to Defendant; the names of the alleged persons provided to
Defendant; the salaries of the alleged employees
provided to the
Defendant; and the occupation of the alleged employees provided to
the Defendant
.
13.
I am not either persuaded that this ground
either holds water as it is essentially a complaint about
non-compliance with Rule 18.
The particulars sought can be requested
for purposes of trial in due course and their absence will not
preclude the defendant from
filing a plea at this stage. In any
event, the plaintiff’s claim is in regard to 14 employees as
will become apparent from
what is stated below.
14.
A party wishing to claim damages resulting
from a breach of contract must allege (and prove) (a) the contract &
terms relied
on; (b) breach of contract; (c) that the claimant has
suffered damages; (d) a causal link between the breach and damages;
and (e)
that the loss was not too remote (See Amler’s Precedent
of Pleadings, 8
th
ed at 117-118)
15.
The plaintiff has averred that upon
termination of its services in the event of termination of the
agreement or expiry thereof,
“
the
parties may negotiate a once off placement fee should
Lonmin
wish
to employ any of the seconded persons’”
The
plaintiff also avers that “During 2019 Defendant took fourteen
( I4) operators from Plaintiff and employed
them permanently”,
and that “the defendant breached the agreement by not paying
the placement fee to the Plaintiff.
As a result, the plaintiff
suffered damages  in the amount of R 2 000 000. calculated
at 10% of the annual package for
the fourteen (14) employees, for
which amount the defendant is indebted to the plaintiff.”
16.
What is plainly absent from the plaintiff’s
pleading,
ex facie
the particulars of claim, are averments to support a causal link
between the alleged breach and damages claimed. There is no
allegation
that the plaintiff’s services were terminated,
including the basis for the termination, or that the parties
negotiated and
agreed upon a placement fee upon termination, such as
to oblige the defendant to pay same. Absent such a causal link, the
particulars
lack averments to sustain the cause of action relied
upon. This flaw touches upon the defendant’s third ground of
exception,
which is this:
17.
Third ground: “
Plaintiff,
in paragraph 7 of its Particulars of Claim, avers that the party to
the agreement is
Lonmin
(being a different legal entity) whilst Sibanye Stillwater Limited is
cited as the Defendant, which averment is not only ambiguous
but also
contradicts the relationship between Plaintiff and Defendant
.”
18.
Where and how an entity named ‘
Lonman’
fits into the picture is wholly
unknown. What is known
ex facie
the
plaintiff’s pleading is that the entity ‘Lonmin’ is
not a party to the contract relied on by the plaintiff
for its claim
against the defendant. But that is not the only problem. The
contractual term relied on for the defendant’s
breach is that
on termination of plaintiff’s services (whether for
convenience,-by mutual agreement, or expiry of the contract)
is that
‘
the parties [i.e. plaintiff and
defendant] may negotiate a once off placement fee should
Lonmin
wish
to employ any of the seconded persons’.
There
is no allegation in the Particulars of Claim that the contract was
terminated or that it expired, nor that the parties negotiated
a once
off placement fee or that ‘Lonmin’ permanently employed
the employees seconded to the defendant by the plaintiff.
This
becomes material, given that damages claimed from the defendant are
calculated in respect of 14 employees, however, sans any
allegation
that the 14 employees have been permanently employed and by whom they
were so employed. Put simply: and there is nothing
to ground the
conclusion that the defendant’s conduct has caused damages to
the plaintiff.
19.
Fourth ground:
Plaintiff,
in paragraphs 11 and 12 of its Particulars of Claim, avers that an
amount of R2 000 000.00 (Two Million Rand) is owing
to Plaintiff by
Defendant. Plaintiffs allegation of the alleged damages suffered,
lacks the calculations as to exactly how the
amount of R2 000 000.00
(Two Million Rand) was arrived at, thereby makes it impossible for
Defendant to file a Plea in respect
of the averments made in these
paragraphs.
20.
What has been said in relation to the
second and  third complaints discussed above is relevant to this
ground.. This fourth
complaint is again, in essence, a complaint of
non-compliance with Rule 18. However, it impacts upon the substantive
requirement
in law that the loss be not too remote – if the
damages flow naturally and generally form the kind of breach relied
on then
they are not too remote, but, that will depend, in the
circumstances of this case, on what placement fee was negotiated and
whether
non-payment of the placement fee in whatever the agreed
amount would result in the plaintiff suffering damages – being
damages
contemplated by the parties as a probable result of the
breach.
21.
For the reasons given, I am persuaded that
the particulars of claim as presently formulated lack averments to
sustain a cause of
action.
22.
In
instances where substantial exceptions against Particulars of Claim
are upheld on the basis that the pleadings concerned are
bad in law,
an invariable rule of practice has been adopted by our Courts, to
order that the pleadings be set aside to allow the
party whose
pleadings is struck down an opportunity to amend.
[1]
.
23.
As for costs, these should follow the
result.
24.
In the circumstances it is ordered that:
a.
The Defendant’s exception is upheld.
b.
The plaintiff’s Particulars of claim
is struck out.
b.  The Plaintiff is
given leave to deliver its amended Particulars of Claim within 10
(ten) days from the date of this order.
c.  The Plaintiff is
to pay the cost of this exception, such costs to include the costs of
counsel where so employed, on a
scale as between party and party in
accordance with scale C.
AVRILLE MAIER-FRAWLEY
JUDGE OF THE HIGH
COURT,
GAUTENG DIVISION,
JOHANNESBURG
Date of hearing:
20/01/2025
Judgment delivered
21/01/2025
This judgment was
handed down electronically by circulation to the parties’ legal
representatives by email, publication on
Caselines and release to
SAFLII. The date and time for hand-down is deemed to be have been at
10h00 on 21 January 2025.
APPEARANCES:
Counsel for
Excipient/defendant:       Adv PI
Oosthehuizen
Instructed
by:

Truter, Crous, Wiggill & Vos Incorporated
c/o
Couzyns Inc
For
Plaintiff:

No appearance
Plaintiff’s
Attorneys:

Magingxa Attorneys
c/o
Tengwa Attorneys
[1]
See,
for instance,
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 602C-D – as well as
Ocean
Echo Prop 327 CC v Old Mutual Life Assurance Co (SA) Ltd
2018 (3) SA 405
(SCA) para [8];
Constantaras
v BCE Foodservices Equipment (Pty) Ltd
2007 (6) SA 338
(SCA) paras [30] – [31];
Trope
and Others v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269G-I.