REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
REPORT ABLE: NO ( l )
(2)
(3) OF INTEREST TO OTHER JUDGES: NO
REVISED. CASE NO: 32406/20
26/03/2025
DATE
In the matter between:
RONCON CC
and --- -
'-._f} j
SIGNATURE
CITY OF TSHWANE
METROPOLITAN MUNICIPALITY
JUDGMENT Plaintiff
Defendant
This judgment was handed down electronically by circulation to the patties' legal
representatives by email and uploading it to the electronic file of this matter on Caselines . The
date and time of hand-down is deemed to be 10:00 on 26 March 2025.
TEFFO, J:
Introduction
2
[1] Following a claim for damages against the defendant , the defendant
delivered a notice of exception to the plaintiff’s particulars of claim contending
that it lacks averments necessary to sustain a cause of action, does not disclose
a cause of action and/or is vague and embarrassing.
[2] Essentially the defendant asserts that the plaintiff’s particulars of claim
lacks averments necessary to sustain a cause of action, and it would be
embarrassed if expected to plead to the plaintiff’s particulars of claim in its
current form. It sought dismissal of the plaintiff’s claim in the event the court
upholds the exception. This was abandoned during argument. Ms Man yanye
for the defendant submitted that in the event the exception is upheld, the plaintiff
should be granted leave to amend its particulars of claim. I will therefore
approac h the matter on that basis.
[3] The defendant raises seven grounds of exception to the plaintiff’s
particulars of claim. The defendant is the excipient, and the plaintiff is the
respondent . For the sake of convenience in these procee dings, the parties will
be referred to as the plaintiff and the defendant.
[4] The plaintiff opposes the application.
Background
[5] Before I deal with the grounds of exception, I would like to give a brief
background of this matter.
[6] The plaintiff was awarded a tender by the defendant to render services
for the provision of an electricity vending system for the selling of prepaid
electricity to customers in the Tshwane electricity supply a rea. During the
3
implementation of the award, Cigicell (an unsuccessful tenderer ) launched an
urgent a pplication to interdict the award of the tender to the plaintiff, the
implementation of the contract and the rendering of the services thereof (Part
A) pending a review of the decision to award the tender to the plaintif f (Part B).
[7] After being served with the urgent interdict application by Cigicell, the
defendant delivered a notice of intention to oppose the application. However, it
failed to deliver an answering affidavit. On the eve of the hearing of the
application, the defendant withdrew its opposition and indicated that it would
abide by the decision of the court. The plaintiff then sued the defendant for
damages in the amount of R8 293 500,00 (Eight million two hundred and
ninety -three thousand and five hundred rand) for the loss suffered because of
the failure by the defendant to implement the award.
[8] As per the particulars of claim, the plaintiff’s claim is based on a breach
by the defendant of its obligation to act fairly and in good faith, and without bad
faith alternatively a legal duty owed to the plaintiff arising from the decision to
award the contract to it. The plaintiff alleges that the defendant intentionally,
alternatively, negligently, failed to implement the terms of the awarded contract
and ought to have known that the failure would caus e patrimonial harm to it. It
further alleges that it lost -out on a realistic and firm opportunity to earn an
income.
[9] Furthermore, the plaintiff avers that the defendant’s failure to oppose the
urgent interdict and the review applications and file a record in the review
application , conveyed an intention to no longer be bound by the decision to
4
award the contract to it, and thereby repudiated the awarding of the contract to
it. It accepted the repudiation.
[10] Moreover, the plaintiff alleges that due to the con duct of Mr Brink, a
senior political office -bearer, the defendant breached its legal duty and the
constitutional obligations towards it.
The grounds of exception
[11] As the first ground of exception, the defendant contends that the course
and origin of the plaintiff’s claim, regard less of its cause of action, is a review
application and an application for urgent interim relief pending its finalisation,
brought against it by an unsuccessful tendere r. The loss causing event pleaded
by the plaintiff is the sudden withdrawal by the defendant of its opposition to the
urgent interim relief pending the finalisation of the review application and/or, the
defendant “ acquiescing wi th the review and setting aside of the decision ”.
However, (a) the defendant’s withdrawal of the opposition of the urgent interim
relief is not wrongful; and (b) the defendant “ acquiescing with the review and
setting aside of the decision ” does not consti tute a breach of contract; and (c)
neither constitute the breach of a statutory or constitutional right or obligation
or other common law obligation or right. It contends that in the premises the
plaintiff’s claim is bad in law; the particulars of claim la cks averments to sustain
a cause of action, alternatively, it does not disclose a cause of action.
[12] The second ground of exception is that the negligent acts and/or
omissions which the plaintiff avers have caused it loss are amongst those
pleaded in paragra phs 28.1, 28.2, 37.1 to 37.4 and the defendant’s alleged
acquiescence in the review and setting aside the award to the plaintiff. It claims
5
that none of the alleged acts or omissions are prima facie wrongful and the
particulars of claim do not allege the basis on which such alleged negligent acts
and omissions are actionable in delict. It submits that in the premises the
particulars of claim backs averments to sustain a cause of action alternatively,
do not disclose a cause of action.
[13] In the third ground o f exception, the defendant contends that the
plaintiff’s pleaded case is that Annexure “R1” to the plaintiff’s particulars of claim
constituted the defendant’s acceptance of its tender (i.e. an offer) and resulted
in a contract between the parties. However , the acceptance of the plaintiff’s
tender, and its appointment as a successful tenderer and service provider, was
according to Annexure “R1” conditional upon the plaintiff’s successful
registration as a vendor within 14 days, and its signing of a service level
agreement with the relevant department.
[14] It is further contended that the appointment of the plaintiff was subject to
it submitting to the defendant within one month of (10 August 2017) a detailed
proposal on the number of jobs created through the pro ject, spin offs to the local
economy; and strategy for appointment of locals.
[15] The defendant argues that the plaintiff does not plead that the conditions
referred to above were fulfilled resulting in the acceptance of its tender and its
appointment as the s uccessful tenderer and service provider nor does it plead
that it had complied with its obligations referred to above.
[16] The defendant further submits that the plaintiff pleads that the
defendant’s alleged acquiescence with the review and setting aside of th e
decision to award the contract to it constituted a repudiation of the contract.
6
However, the particulars of claim lacks averments to sustain a contractual claim
and in the circumstances no claim based on the defendant’s alleged repudiation
avails the pl aintiff. In the premises the plaintiff’s claim is bad in law. The
plaintiff’s particulars of claim lacks averments to sustain a cause of action.
[17] In the fourth ground of exception, the following contentions are made: In
law, a decision by an organ of stat e to award a tender constitutes administrative
action contemplated by PAJA. The words “ a legal duty owed to the plaintiff
arising from the decision to award the contract to the plaintiff ” in the heading
preceding paragraph 27, especially suggests that the plaintiff’s claim for
compensation arises from the act of the defendant awarding the tender to the
plaintiff. A person aggrieved by administrative action may in proceedings for
judicial review claim compensation as a form of a just and equitable order in
terms of section 8(1) of PAJA. The plaintiff does not plead that the decision to
award the tender to it or the alleged interference by Mr Brink and the
defendant’s officials has been set aside on review giving rise to a cause of
action for compensation an d that its case is exceptional and warrants
compensation, would constitute a just and equitable order. In the premises, the
plaintiff’s claim is bad in law. The plaintiff’s particulars of claim lacks averments
to sustain a cause of action alternatively it does not disclose a cause of action.
[18] In the fifth ground of exception the defendant contends that the plaintiff
claims pure economic loss allegedly cause d by the defendant’s failure to take
reasonable steps. Neither an omission nor an act causing pure economic loss
is prima facie wrongful in the delictual sense. For a negligent act or omission to
give rise to an actionable wrong in delict , the act or omission must be wrongful.
7
The defendant’s particulars of claim lacks averments that the defendant’s
alleged negligent acts or omissions were wrongful; there rested upon the
defendant a legal duty to act or not act negligently; policy considerations: render
the conduct complained of wrongful; or d ictate that the plaintiff should be
recompensed by the defendant for the loss suffered. The defendant owed to
the plaintiff arising out of a right enjoyed by the plaintiff at law giving rise to a
legal duty of care to act, or not to act negligently. In th e premises the plaintiff’s
particulars of claim lacks averments to sustain a cause of action alternatively
does not disclose a cause of action. In the premises, the plaintiff’s particulars
of claim are vague and embarrassing.
[19] In the sixth ground of except ion, the following contentions are made: In
paragraphs 45 to 53 of the plaintiff’s particulars of claim, the plaintiff pleads:
constitutional and statutory obligations which rest amongst others on the
defendant in terms of the Constitution of the Republi c of South Africa, 1996 and
the Local Government: Municipal Systems Act, 2000 (“ the Systems Act ”). Acts
by the defendant’s employees and an office -bearer Mr Brink which allegedly
caused it to suffer loss and in this regard the plaintiff pleads as follows : In
paragraph 46 a relationship between Mr Brink, a member of the Municipal
Council and one Westenraad. In paragraph 47 a relationship between
Oeschger, the defendant’s Chief Systems Coordinator: Prepaid Electricity
Vending, and Westenraad. In paragraph 48 a conspiracy among Mr Brink,
Westenraad, Oeschger “ and/or any other officials of the defendant ” to frustrate
the implementation of the tender awarded to the plaintiff.
8
[20] Furthermore, in paragraph 49 acts committed by Mr Brink in the
furtherance of the con spiracy to “ bear pressure on the administration of the
defendant to desist from opposing Part A of the Cigicell application ”. In
paragraph 50 the contents of an email sent by Mr Brink on 22 September 2017
in furtherance of the conspiracy. In paragraph 51 the contents of an email
forming Annexure “R5” to the plaintiff’s particulars of claim. In paragraph 52
that “ Mr Brink’s said conduct was unlawful ”. In paragraph 55 that Mr Brink
“unlawfully and fraudulently [brought] pressure to bear on the administrati on of
the defendant to desist from opposing Part A of the Cigicell application ” and
that this resulted in the [defendant’s] conduct pleaded in paragraph 56.
[21] There is accordingly no causal connection between the conduct pleaded
in paragraphs 54 and 55 and/o r pleaded in paragraphs 56 and 57 and the
damages suffered by the plaintiff. In the premises, the plaintiff’s particulars of
claim lacks averments to sustain a cause of action alternatively it does not
disclose a cause of action.
[22] The defendant makes the f ollowing assertion in the seven th ground of
exception: That the plaintiff pleads that it did not deliver an answering affidavit
and withdrew its opposition to Part A of the application, the interlocutory relief
(“interim interdict ”) sought by Cigicell the day before the hearing. In paragraph
28 the plaintiff pleads the defendant’s omissions. The plaintiff does not allege
that Cigicell failed to make out a case that it was entitled to an interim interdict.
The plaintiff does not plead that: the award of t he tender was unimpeachable;
and/or but for this omission, the plaintiff would not have incurred any loss. A
9
claim for damages is sustainable only if the loss suffered would not have been
suffered but for the conduct of the defendant.
[23] The defendant further contends that the plaintiff does not plead that the
loss allegedly suffered would not have been suffered but for the defendant’s
alleged illegal conduct. In the premises the plaintiff’s claim is bad in law. The
plaintiff’s particulars of claim lacks averm ents to sustain a cause of action
alternatively, it does not disclose a cause of action.
[24] In rebuttal thereof the plaintiff contends that the facts as pleaded make
up an actionable cause of action.
Applicable legal principles
[25] Rule 18(4)1 provides that every pleading shall contain a clear and
concise statement of the material facts upon which the pleader relies for his
claim, defence or answer to any pleading, with sufficient particularity to enable
the opposite party to reply thereto. In the same vein the Co urt in Trope v South
African Reserve Bank and Another and two other cases2 had this to say:
“It is trite that a party must plead with sufficient clarity and particularity
the material facts upon which he relied for the conclusion of law he
wishes the court to draw from those facts (Mabaso v Felix 1981 (3) SA
865 (A) at 875A -H; Rule 18(4)). It is not sufficient thereto, to pl ead a
conclusion of law without pleading the material facts giving rise to it.
1 Of the Uniform Rules of Court (High Court)
2 [1993] ZASCA 54; 1993 (3) SA 264 (A) at 273 A-B
10
(Radebe and Others v Eastern Transvaal Development Board 1988 (2)
SA 785 (A) at 792J -793G). ”
For a claim to disclose a cause of action, a plaintiff’s pleading must set out “ …
every fact (material fact) which it would be necessary for the plaintiff to prove,
if traversed, in order to support his right to the judgment of the Court ”.3
[26] In Jowell v Bramwell -Jones and Others4 the Court explained the
requirements to be set out in the pleading as follows:
“… 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 asymmet rical 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 a cause of action
intelligible, the plaintiff will have satisfied the requirements. ”5
[27] A par ty’s non -compliance with the requirements of Rule 18 may give rise
to a successful exception where such non -compliance results in a pleading
being vague and embarrassing.6 With regard to “ the material facts relied upon ”,
the pleader must set out the facta probanda upon which it relies for its cause of
action.7 There is no exhaustive test of what constitutes “ sufficient particularity ”,
3 McKenzie v Farmers Co -Operative Meat Industries Ltd 1922 AD 16 at 23
4 1998 (1) SA 836 (W)
5 At 913B -G
6 Sasol Industries (Pty) Ltd t/a Sasol 1 v Electrical Repair Engineering (Pty) Ltd t/a LH
Marthinusen 1992 (4) SA 466 (W) at 469J, Jowell (supra) at 902E
7 McKenzie v Farmers’ Co -operative Meat Industries Ltd supra; Makgae v Sentraboer
(Koöperatief) Bpk 1981 (4) SA 239T at 245D -E
11
and the question will be answered in relation to the circumstances of each
case.8
[28] A distinction should be drawn between the facts which must be proved
to disclose a cause of action ( facta probanda ) and the facts or evidence which
prove the facta probanda (the facta probantia ). The latter should not be
pleaded at all, whereas the former must be pleaded together with the necessary
particularity.9
[29] In Tembani v President of the Republic of South Africa and Another10
the Supreme Court of Appeal (SCA) summarised the general principles and the
approach to be adopted when dealing with exceptions as follows:
“Whilst exceptions pro vide a useful mechanism ‘to weed out cases
without legal merit’, it is nonetheless necessary that they be dealt with
sensibly. It is where pleadings are so vague that it is impossible to
determine the nature of the claim or where pleadings are bad in law, in
that their contents do not support a discernible and a legally recognised
cause of action, that an exception is competent. The burden rests on an
excipient, who must establish that on every interpretation that can
reasonably be attached to it, the plea ding is excipiable . The test is
whether on all possible readings of the facts no cause of action may be
made out, it being for the excipient to satisfy the court that the conclusion
of law for which the plaintiff contends cannot be supported on every
8 Imprefed (Pty) Ltd v National Transport Commission 1993 (3) SA 94 (A) at 107C -H
9 Deltamune (Pty) Ltd and Others v Tiger Brands Limited and Others 2022 (3) SA 339 (SCA)
at para 25
10 2023 (1) SA 432 (SCA) at para 14; Picbel Group Voorsorgfonds (in liquidation) v Somerville
and other related matters 2013 (5) SA 496 (SCA) at para 7
12
interpretation that can be put upon the facts. ” (Footnotes omitted,
emphasis added.)
[30] An exception is a legal objection to the opponent’s pleading and a defect
inherent in the pleading. The allegations in the pleading that form the subject of
the exception are accepted to be correct for purposes of adjudicating the
exception. Although a ca use of action appears from the pleading, the objection
is aimed at some defect or incompleteness in the way the claim is set out which
results in embarrassment to the defendant.11
[31] The full bench appeal court in Michael v Carlone’s Frozen Yoghurt
Parlour (Pt y) Ltd12 discussed the principles applicable to exceptions on the
ground that the pleading lacks averments to sustain a cause of action.
Reference was made to the decision of the Appellate Division in Barclays
National Bank Ltd v Thompson13 where the court had this to say:
“It has also been said that the main purpose of an exception that a
declaration does not disclose a cause of action is to avoid the leading of
unnecessary evidence at the trial: Dharumpal Transport (Pty) Ltd v
Dharumpal 1956 (1) SA 700 (A ) at 706. Save for exceptional cases,
such as those where a defendant admits the plaintiff’s allegations but
pleads that as a matter of law the plaintiff is not entitled to the relief
claimed by him (cf Welgemoed en Andere v Sauer 1974 (4) SA 1 (A) ) an
exception to a plea should consequently also not be allowed unless, if
upheld, it would obviate the leading of ‘unnecessary’ evidence. ”
11 Trope (supra) at 268 F
12 1999 (1) SA 624 (W)
13 1989 (1) SA 547 (A) at 553F -I
13
[32] The full bench went on to say the following:
“When an exception is taken to a pleading, the excipient proc eeds on
the assumption that each and every averment in the pleading to which
the exception is taken is true, but nevertheless contends that, as a m atter
of law, the pleadings do not disclose a cause of action or defence, as the
case may be (see, for examp le, Makgae v Sentraboer (Kooperatief) Bpk
1981 (4) SA 239 (T) at 244B -245E and Amalgamated Footwear &
Leather Industries v Jordan & Co Ltd 1948 (2) SA 891 (C )). An exception
will not succeed unless no cause of action or defence is disclosed on all
reasona ble constructions of the pleadings in question (Callender -Easby
and Another v Grahamstown Municipality and others 1981 (2) SA 810
(E) at 812H -813A). ”
[33] A plaintiff is required to plead its cause of action in an intelligible and
lucid manner that identifies t he issues relied on and in respect of which
evidence will be led.14 Thus in a claim based on delict, the plaintiff must plead
all the elements of a delict , viz, conduct, negligence, wrongfulness , causation
and the loss suffered. The p articulars of claim that does not disclose a cause
of action is excipiable.
[34] In determining whether a pleading is vague and embarrassing, the
enquiry is twofold.15 The first is whether the pleading lacks particularity to the
extent that it is vague. The se cond is whether the vagueness causes
embarrassment of such a nature that the excipient is prejudiced.16 The
14 Koth Property Consultants CC v Lepelle -Nkumpi Local Municipality Ltd 2006 (2) SA 25 (T)
15 Trope supra at 221A -E
16 Trope supra at 211B; Quinlan v MacGregor 1960 (4) SA 383 (D) at 393E -H
14
exception that a pleading is vague and embarrassing, is intended to cover the
case where, although a cause of action appears in the summons there is some
defect or incompleteness in the manner in which it is set out, which results in
embarrassment to the defendant.17
[35] An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not its legal validity.18 Particulars of claim
have been held to be vague and embarrassing where: (i) it is not clear whether
the plaintiff sues in contract or in delict;19 (ii) the admission of one of two sets
of contradictory allegations in the plaintiff’s particulars of claim or de claration
would destroy the plaintiff’s cause of action;20 (iii) a pleading contains
averments which are contradictory, and which are not pleaded in the
alternative.21
[36] Where a pleader would be seriously embarrassed if the offending
allegations were not expun ged, an exception should be taken. Prejudice must
ultimately lie in an inability to prepare to meet the opponent’s case.22 Where it
is clear that no cause of action or defence has been pleaded, it is the duty of a
litigant to take the most expeditious cour se to bring the litigation to a conclusion
so as to dispose of the dispute or to bring the proceedings instituted to a
conclusion.23
17 Lockhat v Minister of the Interior 1960 (3) SA 765 (D) at 777 E; Trope at 268F
18 Trope at 269I; Venter and Others NNO v Barritt; Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd 2008 (4) SA 639 (C) at 643I -644A
19 Gerber v Naude 1971 (3) SA 55 (T)
20 Levitan v Newhaven Holiday Enterprises CC 1991 (2) SA 297 (C) at 298J and 300G
21 Trope at 211E
22 Francis v Sharp 2004 (3) SA 230 (C) at 240
23 Allen & Others NNO v Gibbs & Others 1977 (3) SA 212 (SECLD) at 215H to 216C; Scheepers
and Nolte v Pate 1909 TS 353 at 360 per Wessels J (as he then was)
15
[37] If a party is unable to distil a clear, single meaning from an allegation in
a pleading, that will render the pleading vague and embarrassing.24
[38] The Court in Lockhat and Others v The Minister of Interior25 sets out the
legal principles applicable to exceptions on the ground that a pleading is vague
and embarrassing as follows:
“In the first place when a question of insufficient p articularity is raised on
exception, the excipient undertakes the burden of satisfying the court
that the declaration as it stands, does not state the nature, extent, and
grounds of the cause of action. In other words, he must make out a case
of embarrassm ent by reference to the pleadings alone, Deane v Deane ,
1955 (3) SA 86 (N). If an exception on the ground that certain allegations
are vague and embarrassing is to succeed, then it must be shown that
the defendant, at any rate for the purposes of his plea, is substantially
embarrassed by the vagueness or lac k of particularity. Jooste v Jooste,
1927 NPD 305 at p. 307; International Tobacco Company of SA Ltd v
Wollheim and Others, 1953 (2) SA 603 (AD ). The object of all pleadings
is that a succinct statement of the grounds upon which a claim is made
or resist ed shall be set forth shortly and concisely; and where such
statement is vague, it is either meaningless or capable of more than one
meaning. It is embarrassing in that it cannot be gathered from it what
ground is relied on by the pleader. Leathern v Tred oux, 1911 NPD 346,
per Dove -Wilson J.P., at p. 348. If a declaration reasonably states the
nature, extent and grounds of the cause of action, the court will not as a
24 Erasmus Superior Courts Practice, Commentary on Rule 23 at RS 6, 2018, D1 -299
25 1960 (3) SA 765 (D) at 777A -E
16
rule, strike out paragraphs as vague and embarrassing, provided the
information given is reasonably sufficient and provided it does not
appear to the court that the paragraphs cannot be pleaded to by the
defendant. ”
Discussion
The first , second and fifth ground s of exception
[39] In rebuttal thereof the plaintiff contends that the defendant ignores what
it pleads in its particulars of claim. It asserts that its case is that the
commencement, defence and conduct of litigation by state organs such as the
defendant is an exercise of public power. The enabling instrument in relation
thereto is legisla tion, be it the Local Government: Municipal Finance
Management Act, 56 of 2003 (“ the MFMA ”) or the Local Government: Municipal
Systems Act, 32 of 2000 (“ Municipal Systems Act ”).
[40] Relying on the decision in Pharmaceutical Manufacturers Association of
SA an d Another: In re Ex Parte President of the Republic of South Africa and
Others26, the plaintiff submitted that any decision of state institutions relating to
litigation must be reasonable and rational. Further that the decision must be
fair. The decision, so it was contended, must satisfy the requirements of legality.
It must be intra vires and must not be made for an improper purpose ( Masetlha
v President of the Republic of South Africa and Another27).
26 2000 (2) SA 674 (CC)
27 2008 (1) SA 566 (CC)
17
[41] The plaintiff further contended that the defendant being a public organ,
cannot act like any other contracting party. In the management of a contractual
relationship, it must ensu re that it satisfies the requirements of administrative
justice and fairness. It cannot for unjust ifiable reasons or improper motives
decide to cancel a contract when such impacts on the rights of others. Placing
reliance on the decision in the MEC, Department of Education, Northwest v KC
Productions CC28, Mr Manala for the plaintiff submitted that for this application,
it is accepted that the decision to withdraw opposition to the review proceedings
was taken for the ulterior purpose and improper motive advanced by Mr Brink.
Any conduct in the form of a positive act causing damage or diminution of
prope rty of another is prima facie wrongful.
[42] As regards the test for determining the wrongfulness of omissions in
delictual actions for damages, reliance was placed on various cases which
include amongst others, Carmichele v Minister of Safety and Security and
Another29 where the court held that the existence of the legal duty to avoid or
prevent loss is a conclusion of law depending upon a consideration of all the
circumstances of each particular case and on the interplay of many factors
which have to be consi dered. The issue, in essence, is one of reasonableness,
determined with reference to the legal perceptions of the community as
assessed by the court.
[43] Mr Manala then submitted that having regard to what has been pleaded
in the plaintiff’s particulars of cla im, the defendant’s decision to withdraw from
litigation on the basis of the undue influence of Mr Brink, was taken in breach
28 [2009] ZANWHC 10 (05 March 2009) at para 20
29 2001 (1) SA 489 (SCA) at para 7
18
of section 1(c) of the Constitution, and the inherent obligation flowing from the
MFMA, and/or Municipal Systems Act, to act reaso nably, rationally and without
improper motive.
[44] I have looked at the decisions relied upon by Mr Manala for the plaintiff
to support his argument that the allegations referred to in the plaintiff’s
particulars of claim are sufficient to disclose a cause of action. In my view all
the case law relied upon do not assist the plaintiff in that the particulars of claim
lacks averments to indicate in what respect the withdrawal of the defendant’s
opposition to the urgent interim relief and the review application is wrongful if it
is wrongful as alluded to in his argument. Furthermore, in what respect does
the defendant’s acquiescence with the review and the setting aside of the
decision constitute a breach of contract if that is the case of the plaintiff. The
same applies to the fifth exception. The particulars of claim lacks averments
that the defendant’s negligent acts or omissions were wrongful and that there
rested upon the defendant a legal duty to act, or not to act negligently. The
pleading is so vague that it is impossible to determine the nature of the claim .
Under the circumstances I agree with the defendant that the plaintiff’s
particulars of claim in this regard lack s averments to sustain a cause of action
and or is vague and embarrassing.
Third grou nd of exception
[45] In rebuttal of the third grou nd of exception, the plaintiff claims that as
per Annexure “RA3”, the email from the defendant dated 21 September 2017
the conditions referred to in the letter of award (Annexure “R1”) dated 10 August
2017 were fulfilled.
19
[46] Annexure “R1” is an email from the defendant to the plaintiff. It reads as
follows:
“TENDER TO APPOINT SERVICE PROVIDER(S) TO PROVIDE THIRD
PARTY ELECTRICITY VENDING SYSTEM/TECHNOLOGY FOR
SELLING PREPAID ELECTRICITY TO CUSTOMERS IN THE
TSHWANE ELECTRICITY SUPPLY AREA: AS AND WHEN
REQUIRED: 3 PERIODS WITH EFFECT FROM 01 SEPTEMBER 2017
OR NEAREST DATE.
I have the pleasure to inform you that, subject to the following:
- the successful registration as a vendor with the City of Tshwane
within 14 days and
- the signing of the s ervice level agreement (SLA) with the relevant
Department prior to the commencement to your contract.
Your tender has been accepted by the City Manager on 14 June 2017,
to provide third party electricity vending system/technology for selling
pre-paid elect ricity to customers in the Tshwane electricity supply area,
over a period of three (3) years, as and when required, with effect from
01 September 2017 or nearest date.
…
all in accordance with the Municipality’s Specification and Conditions of
Tender and o ur tender.
20
Your appointment is also subject to your company submitting a detailed
proposal within one month on the following:
- No. of jobs to be created through this project.
- Spin offs to the Local Economy.
- Strategy for appointment of Locals.
The third-party electricity vending system/technology must be executed
in strict accordance with the Municipality’s Specification and Conditions
of Tender and your tender .”
[47] Annexure “RA3” is also an email from the defendant to the plaintiff and
it reads as fol lows:
“…
Please be advised that the test sessions with Roncon have been
completed, the tests were successful without any deviation. Roncon is
now complying as per the tender specification. ”
[48] In its heads of argument, it is submitted on behalf of the plaintiff that the
construction which arises from Annexure “RA3” is clear and that the evidentiary
burden that besieged the plaintiff, on this score, has been discharged. Further
that the counterproof is required of the Mu nicipality.
21
[49] I do not agree. For a claim to disclose a cause of action, a plaintiff’s
pleading must set out every material fact which it would be necessary for the
plaintiff to prove, if traversed, to support his right to the judgment of the court30.
[50] Annexur e “RA3” only refers to the tests that have been conducted. Even
then it was incumbent on the plaintiff to allege in its particulars of claim that it
has complied with the conditions of the tender as contained in Annexure “R1”
and/or that the conditions the reof have been fulfilled.
[51] The third grou nd of exception also relates to paragraph 39 of the
particulars of claim. It is contended that in paragraph 39 the plaintiff pleads that
the defendant’s alleged acquiescence with the review and setting aside of the
decision to award the contract to the plaintiff constituted a repudiation of the
contract. However, the particulars of claim lacks averments to sustain a
contractual claim and in the circumstances no claim based on the defendant’s
alleged repudiation avail s the plaintiff.
[52] The plaintiff fails to deal with that aspect in its heads of argument save
to say that Mr Manala for the plaintiff submitted in oral argument and relying on
the decision in Trencon Construction (Pty) Limited v Industrial Development
Corpor ation of South Africa Limited and Another31 that a claim for loss of profit
like contract price adjustment that is subject to negotiation after the
procurement process has been completed, ought to fall squarely within the
domain of private law. In other words, once the procurement process is
completed, the relationship between the parties is governed by the law of
30 McKenzie v Farmers Co -operative Meat Industries Ltd supra at 23
31 2015 (5) SA 245 (CC) at para 75
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contract. Mr Manala and Ms Man yanye correctly agreed on the law relating to
this aspect .
[53] Although I agree with the law as set out in Trencon Construction (Pty)
Limited v Industrial Development Corporation of South Africa Limited32, I agree
with the defendant that the particulars of claim lacks averments to sustain a
contractual claim. That contract as referred to in Trencon has not been pleaded .
Therefore, no claim based on the defendant’s alleged repudiation avails the
plaintiff.
Fourth exception
[54] As alluded to supra , the plaintiff contends that after the completion of
the procurement process, the relationship between the parties is regulated by
the law of contract. The plaintiff thereof disagree s that its claim should proceed
under the Promotion of Administrative Justice Act, 3 of 2000 (“ PAJA ”). Having
looked at the authorities relied upon by the plaintiff, I am persuaded that there
is merit in its argument. However, as alluded to supra I am concerned about the
lack of averments in the plaintiff’s particulars of claim to sustain a contractual
claim for damages. In my view the way the claim is set out, it is defective or
incomplete and this results in an embarrassment to the defen dant.
Sixth and seventh grounds of exception
[55] In rebuttal of these grounds of exception, the plaintiff contends that the
defendant’s decision to withdraw from the urgent interim application and the
review ap plication, and not even file the record of the decision it took to award
32 Supra
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the tender to it, was wrongful because of the unlawful conduct of Mr Brink. If
the defendant disputes that the decision to withdraw was not influenced by the
unlawful conduct of Mr Brink, the defendant must present evidence to dispute
the a verments made by the plaintiff.
[56] The plaintiff submits that a fact that obtains is that the defendant
withdrew from the review application because of the conduct of Mr Brink and
that suffices to esta blish unlawfulness and wrongfulness. Furthermore, there
is no doubt that a defence can be raised that notwithstanding the defendant’s
participation in the review proceedings, the review would have been upheld. It
is further assert ed that whether that defends holds, to frustrate the claim
advanced by the plaintiff , is not an issue that has to be determined in these
proceedings.
[57] I do not agree with the plaintiff’s submission in this regard. Plaintiff is
required to plead its cause of action in an i ntelligible and lucid manner that
identifies the issues relied upon and in respect of which evidence will be led. In
a claim based on delict, the plaintiff must plead all the elements of delict,
namely, conduct, negligence, wrongfulness, causation and the loss suffered. If
any of these requisites is missing, a cause of action will not be disclosed.
Therefore, the pleading will be excipiable.
[58] Having considered the matter and the law on pleadings and exceptions,
I am persuaded that there is merit in the exception by the defendant on the se
grounds.
Conclusion
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[59) In the circumstances , the exception is upheld, and the plaintiff's
particulars of claim is struck out.
Costs
[60) Counsel on both sides requested costs including costs of two counsel
on Scale C. Having considered the matter, I am not persuaded to grant costs
on Scale C. I find it appropriate to award costs which include costs of two
counsel on Scale B.
[61) Consequently, the following order is made:
1. The Exception is upheld, and the plaintiff's particulars of claim is
struck out.
2. The plaintiff is granted leave to amend its particulars of claim within
20 (twenty) days from the date of this order.
3. The plaintiff is to pay the costs of this application which costs include
the costs of two counsel on Scale B.
M J TEFFO
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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Appearances
For the defendant (Excipient) J M Motepe SC ( in absentia )
and M S Manyanye
Instructed by Rambevha Morobane Attorneys
For the plaintiff (Respondent) M E Manala
M Rasekgala
Instructed by Manala Inc
Heard on 15 August 2024
Handed down on 26 March 2025