IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 22464/2022
In the matter between:
AD ALL CC t/a MILLENIUM BODYGUARDS Plaintiff/ Respondent
And
JONIBACH (PTY) LTD Defendant/Excipient
JUDGMENT
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
(4) Date: 14 February 2025
Signature: _
2
NYATHI J
A. INTRODUCTION
[1] On 31 March 2022, the plaintiff instituted action against the defendant for breach
of contract.
[2] During August 2018 , the plaintiff and the defendant concluded a written services
agreement pursuant to which the plaintiff was to render security services to the
defendant for a fee. This would be in terms of a se rvice level agreement (“SLA”)
between the parties.
[3] On receipt of the summons, the defendant delivered a notice to remove a cause
of complaint under Rule 23(1). The plaintiff amended its particulars of claim. This
caused the defendant to deliver a further notice to remove cause of complaint,
whereafter it excepted to the amended particulars of claim.
[4] I refer to the partie s as in the action. References to the particulars of claim are
to the amended particulars of claim.
[5] The exception is founded on two grounds, both of which assert that the
particulars of claim lacks averments necessary to sustain a cause of action
against the defendant.
[6] The first exception engages the provisions of the Private Security Industry
Regulation Act, 56 of 2001 ("the PSIRA").
[7] The second exception concerns an unenforceable agreement -to-agree which
the plaintiff attempts to enforce in this Court.
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B. THE LEGAL PRINCIPLES ON EXCEPTION S
[8] Uniform Rule 23(1) provides that an exception may be taken against a pleading
on the grounds that “it lacks aver ments which are necessary to sustain an
action ”.
[9] For the purposes of determining whether a cause of action has been pleaded,
the Court is required to assume that all of the averments in the particulars of
claim are correct.
[10] Based on the two grounds detailed in its exception, the defendant contends that
the particula rs of claim does not disclose a cause of action against it.
C. FIRST GROUND : The plaintiff is not a registered security ser vice provider
[11] The plaintiff, a security service provider , does not allege that it is a registered
security service provider with PSIRA. It is ess ential that it should allege that it is
a registered security service provider with PSIRA.
[12] The plaintiff claims in its particulars of claim that the defendant breached the SLA
when it failed to pay the pl aintiff for security services that were rendered under
the SLA.
[13] As the plaintiff's claim relates to the rendering of security services by someone
other than the State, and as the private security industry in South Africa is
regulated by the PSIRA, it was necessary for the plaintiff to allege in its
particulars of claim that it is entitled under the PSIRA to be paid for the rendering
of such security services. Should it fail to do so, its claim will be excipiable in that
it will not disclose a cause of action.
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[14] The PSIRA defines a “security service provider ” in section 1 as :
“a person who renders a se curity service to another for a remuneration, reward
, fee or benefit and includes such a person who is not registered as required in
terms of this Act.”
[15] Considering the above definition, a "security service provider" as contemplated
in the P SIRA can therefore either be a re gistere d security service pro vider or an
unregistere d secur ity service pro vider . The plaintiff’s particulars of claim simply
state that: “The Plaintiff is a security service provider as contemplated in the
Private Security Industry Regulation Act, 56 of 2001. ”1
[16] Section 20(1) of the PSIRA, however, expressly prohibits the rendering of
security service for remuneration, reward, a fee or benefit by anyone other than
a registered security s ervice pro vider. In this regard, section 20 reads as follows:
“no person, except a Security Service contemplated in section 199 of the
Constitution, 1996, may in any manner render a security service for
remuneration, reward, a fee or benefit, unless such person is registered as
a security service provider in terms of this Act".
[17] Section 20(3) provides that any contract, whether concluded before or after the
commencement of this Act, which is inconsistent with a provision contained in
subsection (1), (2) or section 44(6), is invalid to the ex tent to which it is so
inconsistent.
[18] The purpose of section 20 of the PSIRA and its effect on this action is therefore
clear: unless the plaintiff alleges and proves that it is a registered security service
provider under the PSIRA, it cannot succeed in its claim.
1 Paragraph 1.3 of particulars of claim.
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[19] Section 38(3)(a) of the PSIRA makes it an offence to contravene or not comply
with section 20(1).
[20] There are insta nces of similar statutory provision s to those referred to above , for
example:
20.1 The Housing Consumers Protection Measures Act, 95 of 1998
(“the HCPMA ”); and
20.2 The predecessor of the Property Practitioners Act, 22 of 2019
("the PPA"), being the Estate Agency Affairs Act, 112 of 1976
("the EAAA") .
[21] Regarding the provisions of the HCPMA :
21.1 Section 10 provides that no person shall receive any
consideration in terms of any agreement with a housing
consumer in re spect of the sale or construction of a home,
unles s that person is a registered home builder; and
21.2 Section 21 makes it an offence to contravene section 20.
21.3 In Hubbard v Cool Ideas2, the Supreme Court of Appeal held that
although a contravention of section 10 would not affect the
validity of such an agreement, it would nevertheless disentitle
unregistered home builders from receiving or claiming
2 1186 CC 2013 (5) SA 112 (SCA) .
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consideration under it and the Court will be precluded from
enforcing it.
21.4 In IS & GM Construction CC v Tunmer3, Goldblatt J, held that
particular s of claim based on a written agreement to erect a
dwelling house was excipiable as the plaintiff did not allege that
it is a registered home builder as defined in the HCPMA. The
plaintiff therefore failed to establish that it was entitled to receive
any consideration.4
[22] Insofar as the EAAA is concerned :
22.1 Under section 34A, an estate agent was not entitled to any
remuneration or other payment in respect of or arising from the
performance of any act referred to in subparagraph (i), (ii), (iii)
or (iv) of paragraph (a) of the definition of 'estate agent', unless
at the time of the performance of the act a valid fidelity fund
certificate has been issued (a) to suc h estate agent; and (b) if
such estate agent is a company, to every director of such
company or, if such estate agent is a close corporation, to every
memb er referred to in paragraph (b) of the de finition of ‘estate
agent’ of such corporation.
22.2 The above prohibition is repeated in section 56 of the PPA .
22.3 In Taljaard v TL Botha Properties , The Supreme Court of Appeal
confirmed that unless an estate agent had a valid fidelity fund
3 2003 (5) SA 218 (W) .
4 At 220H -I.
7
certificate when she performed the relevant act, she will be
prevented from enforcing her /his claim.
[23] By parity of reasoning, unless the plaintiff alleges and proves that it is a
registered security service provider as contemplated in the PSIRA, it cannot
establish that it is entitled to remuneration under the PSIRA, and it cannot seek
the court’s assistance in enforcing its claim.
[24] The plaintiff therefore failed to plead that it as a registered secur ity service
provider.
[25] The PSIRA makes it an express condition for a security service provider to be
registered before it becomes entitled to remuneration, reward, a fee or benefit.
[26] It was therefore necessary for the plaintiff to allege that its claim falls within the
parameters of the statute. The plaintiff therefore had to plead that it was a
registered security service provider. As it did not do so, it failed to establish its
legal entitlement to payment and its particulars of claim fails to disclose a cause
of action.5
[27] The statutes referred to above by way of similar examples as well as the PSIRA
provisions that are at issue here, makes it quite clear that the plain tiff’s insistence
that its allegations disclose a cause of action, fall short of what is expected in
light of the statutory provisions.
[28] It follows that, even if the plaintiff’s allegations in the particulars of claim are
factually correct , the absence of the allegation of registration as a security
service provider, supported by evidence of cou rse, renders the particulars of
claim fatally defective and disentitles the plaintiff from judgment.
5 IS & GM Construction CC v Tunmer 2003 (5) SA 218 (W) at 220G -I.
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[29] The first ground of the defendant's exception is upheld.
D. THE SECOND GROUND: An agreement -to-agree is unenforceable
[30] The pla intiff’s damages claim against the defendant is based on the Service
Level Agreement (SLA) that was automatically renewed on 13 August 2021
(“the 2021 renewal” ).6
[31] For the plaintiff to succeed in its damages claim arising from the 2021 renewal,
the plaintiff must allege the existence of a valid and enforceable renewal
agreement. This entails alleging at least terms relating to:
31.1 the nature and scope of the security services that were to be
rendered by the plaintiff to the defendant; and
31.2 the remuneration payable by the defendant to the plaintiff in
return for such security services.
[32] Whilst the 2021 renewal contained identifiable and enforceable terms relating to
the nature and scope of the security services that were to be rendered by the
plaintiff to the defendant, it is silent on the terms relating to the remuneration
payable by the defendant to the plaintiff in return for such security services under
the 2021 renewal . [emphasis added].
[33] Clause 3.4 of the SLA in dealing with the remuneration, reads as follows:
6 Particulars of claim – paras 5.4 and 9.
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"The contract price with regard to any renewal in terms of the agreement will
escalate annually on the anniversary of this agreement by a rate subject to the
negotiation".
[34] The words used in Clause 3.4 evinces “an agreement to agree” , a pactum de
contrahendo , which is unenforceable in law. In Van Zyl v Government of the
Republic of South Africa7 the Supreme Court of Appeal re iterated the trite
position that a promise to contract is not a contract.
[35] This is so because an “agreement to agree ” or an agreement to negotiate further
in order to close gaps in an existing agreement is as a basic point of departure ,
unenforceable and insufficient to cure an incomplete agreement , specifically
because the parties retain an absolute discretion to agree.8
[36] In Seale v Minister of Public Works9, the Supreme Court of Appeal stated “I
accepts that there was implicit obligation on the parties to negotiate in good faith,
but subject thereto, the further agreement was entirely dependent on th e will of
the parties ”. It was thus highlighted that an agreement to agree is not enforceable
as there is no provision to address the failure to negotiate.
[37] The SLA does not stipulate what is to happen should the parties not be able to
agree on a rate of escalation and it also does not contain a deadlock -breaking
mechanism to make provision for such an event. The SLA, particularly the 2021
renewal, is therefore void for vagueness and uncertainty and is unenforceable.
7 2008 (3) SA 294 (SCA)
8 ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA) at 708 -9.
9 [2020 ] JDR 2131 (SCA)
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[38] Due to the above considerations, the plaintiff has failed to make the necessary
allegations in its particulars of claim to disclose a cause of action .
[39] The second ground of the defendant's exception stands to be upheld as well.
E. CONCLUSION
[40] In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA10 it was held that an exception provides a useful mechan ism to
weed out cases without legal merit . The claim as it stands in the particulars of
claim suffers from similar deficiencies.
[41] Accordingly, I make t he following order :
41.1 The first and second exceptions are upheld and the plaintiff's
amended particulars of claim dated 31 March 2022 is struck out.
41.2 The plaintiff is afforded a period of 10 days from the date of this
order within which to give notice of its intention to file an
amended particulars of claim under Uniform Rule 28;
41.3 Should the plaintiff fail to comply , or timeously comply, with
paragraph 40.2 above, the defendant may approach the Court
10 2006 (1) SA 461 (SCA) at 465H.
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on the same papers , duly amplified, for an order dismissing the
plaintiff’s claim ;
41.4 The plaintiff shall pay the excipient’s costs.
_
J.S. NYATHI
Judge of the High Court
Gauteng Division, Pretoria
Date of hearing: 16/10/2024
Date of Judgment: 14 February 2025
On behalf of the Plaintiff : Adv. JL Myburgh
Duly instructed by: Horn Attorneys, Pretoria
e-mail: quentin@hornlegal.co.za
On behalf of the Responde nt: Adv MJ Kleyn
Duly instructed by: Rianie Strydom Attorneys
e-mail: rianie@strijdomprok.co.za
Delivery : This judgment was handed down electronically by circulation to the parties' legal
representatives by email and uploaded on the CaseLines electronic platform. The date for hand -
down is deemed to be 14 February 2025.