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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 110609 /2023
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE : 06 FEBRUARY 2025
SIGNATURE
In the matter between:
RUTEGA EDUCATION SERVICES CC (SOUTH AFRICA) Excipient /Defendant
and
OPTIMAL STUDENT RECRUITMENT (PTY) LTD Plaintiff
In re:
OPTIMAL STUDENT RECRUITMENT (PTY) LTD Plaintiff
and
RUTEGA EDUCATION SERVICES CC (SOUTH AFRICA) Defendant
This judgment is prepared and authored by the Judge whose name is reflected as
such 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
Case Lines . The date for handing down is deemed to be 06 February 2025.
JUDGMENT
INTRODUCTION
[1] The defendant , Rutega Education Services CC (South Africa) [ the
excipient] takes exception to the plaintiff’s particulars of claim on two grounds in
terms of Uniform Rule 23 namely that, the plaintiff’s particulars of claim fail to
disclose a cause of action and that its particulars of claim are vague and
embarrassing. This exception is opposed.
[2] On the date of the hearing and after much deliberation in oral argument ,
both Counsel were finally ad idem that the only ground to be determined by this
Court was the first ground . The first ground raises a complaint as against this
Court ’s jurisdiction to entertain the action and , in consequence that no cause of
action has been established on the pleadings . A sensible agreement on exception
as, this complaint may serve the intended purpose of an exception namely, to
curtail unnecessary and further litigation. If not, the plaintiff has been for ewarned .
It is then on this basis, that the Court only deals with the veracity of the first ground
and, in so doing, considers the ground as against the plaintiff’s particulars of claim
[jurisdictional challenge] .
THE PARTICULARS OF CLAIM
[3] The plaintiff is a peregrinus who institute d an enrichment claim against the
excipient an incola , for an amount of AUD $52,493.96 (ostensibly an amount of
R646 ,237.39 as date of the institution of the action) [claimed amount] which it
alleges that the excipient retains without justification, at its expense.
[4] The jurisdictional fact relied on by the plaintiff on the pleadings is that the
excipient’s r egistered address, which is situated within the jurisdiction of this Court,
namely 7[...] H[...] Avenue, Faerie Glen, Pretoria . An accepted allegation on the
face of it on exception. This Court in consequence, in terms of section 2 1(1) of the
Superior Courts Act1 possesses the requisite jurisdiction. However, this,
jurisdictional fact, according to the excipient is not the end of the jurisdictional
enquiry.
[5] To commence the enquiry, it is noted that t he allegations in plaintiff ’s
particulars of claim are c learly set out and dealt with under headings. In this way,
the relevant background facts are set out to demonstrate the Plaintiff’s justification
of the claimed amount. Such justification explained with reference to an
agreement .
[6] To contextualise this justification is to deal with the pleaded background
facts which then gives rise to its enrichment claim against the excipient :
6.1. The plaintiff and the excipient entered into a joint venture agreement
on the 22 June 2022 at Pretoria, alternatively in Western Australia
[the agreement].
6.2. At the time of the conclusion of the agreement, a joint venture
company, Rutega Education Services Limited (Kenya) [the company]
had already been established. In terms of the agreement, the plaintiff
was tasked with the day-to-day functions of the company. For such
services the plaintiff was entitled to receive remuneration .
6.3. The remuneration, in this case the claimed amount was payable by
the company for the services rendered to it by the plaintiff. Payment
to be made within 30 days of presentation of an invoice.
6.4. The plaintiff pleads that its performance in terms of the agreement .
6.5. It was a condition precedent of the agreement that the excipient was
to open one or more separate bank accounts in the name company
by 6:00pm on the 30 June 2022. Relying on such condition
1 Act 10 of 2013, as amended.
precedent , the plaintiff at paragraph 9.6 of the particulars of claim
pleaded that :
9.6 Upon the conditions precedent and pleaded above, not being
satisfied by 6:00pm on the 30 June 2022, the parties agreed that the
agreement would cease to have effect immediately after that time on
that date, except for [clause 5.5 ].
6.6. Clause 5.5 lists the clauses that would survive such cessation of the
agreement . Although not all these clauses are pleaded, the plaintiff
pleads the relevant clause which it relies on, clause 5.5.13. Clause
5.5.13 deals with the survival of “any rights, remedy, obligations or
liabilities that have accrued under this agreement .’
6.7. The excipient did not fulfil the condition precedent. In consequence,
save for the surviving clauses, the agreement ceased to have an
effect.
6.8. The plaintiff rendered services for the company, tendered invoices
which remain unpaid and as a result, the company became indebted
to it.
THE JURISDICTIONAL CHALLENGE
[7] After the background facts establishing the plaintiff’s right and the
company’s liability to pay the claimed amount, the plaintiff in its particulars of claim
deals with the basis for its enrichment claim against the excipient. In short, the
plaintiff alleges the excipient received payment of company income from third
parties and deposit it in its bank account . This was done without justification, and
the excipient has failed to pay it the plaintiff the claimed amount on the company’s
behalf.
[8] The thrust of the excipient ’s argument lies at paragraph 11 of the particulars
of claim where the plaintiff alleges that:
“The agreement however stipulates that certain terms thereof would
survive, should the agreement not come to force in terms of clause 5.5, the
contents of the clause bearing relevance to this action (own emphasis) to
this action being the stipulation that any rights, remedies, obligations or
liabilities that have accrued under the agreement, would be enforceable.”
[9] Paragraph 11 is clearly pleaded under the heading “RELEVANT FACTUAL
BACKGROUND” sub -heading “JOINT VENTURE AGREEMENT”
[10] The relevance of such background facts appeared to have escaped the
excipient who now , argues that the plaintiff’s reliance of clause 5.5.13 translates
into the plaintiff pleading that its enrichment claim is brought in terms of the
agreement.
[11] In this way, and moving from this premise, the excipient on exception relies
on cla use 41 of the agreement . Clause 41 , in terms of clause 5.5 survives the
unfulfilled condition precedent. Clause 4 1 states that :
“GOVERNING LAW AND JURISDICTION
41.1 This agreement and any dispute or claim (including non -contractual
disputes or claims) arising out of or in connection with it or its
subject matter or formation shall be governed by and construed in
accordance with the laws of Kenya.
41.2 Each party irrevocably agrees that the courts of Kenya shall have
exclusive jurisdiction to settle any dispute or claim (including non -
contractual disputes or claims) arising out of or in connection with
the agreement or its subject matter or formation.”
[12] Relying on clause 4 1, the excipient inter alia , argues that the enrichment
claim is governed by the application of Kenyan law principles and is too, to be
heard in Kenya. This is the basis of the jurisdictional challenge.
DISCUSSION
[13] The excipient is bound t o its exception. Moving from that premise, and
reading the particulars of claim as a whole, paragraph 11 , under the heading
“RELEVA NT FACTUAL BACKGROUND” is simply that, background facts from
which the plaintiff’s accrued right in terms of the agreement to the claimed amount
as against the company is established and explained, nothing more than that. In
other words, a basis for its claim against the company in terms of the surviving
clauses of the agreement. No exception lies against the justification of the claim
against the company.
[14] Furthermore , none of the clauses which have survived the agreement, as
pleaded, create any ex contractu o bligation between the plaintiff and the excipient
which the plaintiff can or does rely on .
[15] Paragraph 11 therefore refers to t he plaintiff’s right to claim its remuneration
from the company which right accru ed under the agreement and therefore it “-
bears relevance to the action ” and was pleaded .
[16] The plaintiff sets its enrichment claim under a separate heading and bases
its claim against the excipient on its own conduct. The excipient’s conduct to
justifiably hold company funds falls outside the purview of the surviving clauses
referred to in 5.5 of the agreement. As such , clause 4 1 does not provide the
protection relied on by the excipient.2
[17] Culminated with the above reasoning is to consider the well settled fact that
a foreign jurisdiction clause , like clause 41, does not automatically exclude a
Court’s jurisdiction . In this matter a ratio jurisdictionis was pleaded for a Court to
entertain the matter . The plaintiff’s registered office is in the Court’s jurisdiction ,
2 Foize Africa (Pty) Ltd v Foize Beheer BV and Others [2012] ZASCA 123; [2012] 4 All SA
387 (SCA); 2013 (3) SA 91 (SCA) at [13], Atlas Organic Fertilisers (Pty) Ltd v Pikkewyn
Ghwane (Pty) Ltd 1981 (2) SA 173 (T).
which on exception is accepted as a fact. This Court , as the pleadings stand, and
at this stage, can entertain the ac tion as instituted3.
[18] Lastly , there is a practical reason why a litigant would rather raise a
jurisdictional challenge by way of s pecial plea instead by way of exception . The
practical answer is that at the special plea stage, a litigant attracts an onus , a
replication can be filed, and a Court can consider evidence , if lead . In this way , the
veracity of a llegations can be weighed and tested. This is not the case on
exception. Be that as it may, the excipient procedurally was not precluded from
raising its jurisdictional challenge by way of exception however, it did so
unsuccessfully.
[19] Ground one then fails, and the exception as raised is to be dismissed.
There is no reason why costs should not follow the result in the absence of
argument to the contrary to consider.
The following order:
1. The exception is dismissed with costs on Scale B.
L.A. RETIEF
Judge of the High Court
Gauteng Division
Appearances :
For the Excipient : Adv LD Isparta
Cell: 081 042 5295
Email: isparta@saadvocate.co.za
3 Yorigami Maritime Construction Co Ltd Nissho -Iwai Co Ltd 1977 (4) SA 6 92 (C) at 692H.
Instructed by attorneys: Vermeulen Attorneys
Tel: 010 109 1089
Email: cathleen@vermeulenla.co.za
For the Respondent Adv K Howard
Cell: 072 706 8329
Email: khoward@adv21.co.za
Instructed by attorneys: Alant, Gell and Martin Incorporated
Tel: 012 492 5617
Email: mark@amglaw.co.za
cordney@agmlaw.co.za
Ref: MvS/CB/A00083
Date of hearing : 30 January 2025
Date of judgment : 06 February 2025