IN THE HIGH COURT OF SOUTH AFRICA
FREE STATE DIVISION , BLOEMFONTEIN
In the exception between:
KAYKAYSIM PROJECTS (PTY) LTD
and
OIHLABENG LOCAL MUNICIPALITY Not reportable
Case no: 1355/2024
PLAINTIFF
DEFENDANT/EXCIPIENT
Neutral citation: Kaykaysim Projects (Pty) Ltd v Dihlabeng Local Municipality
(1355/2024 ) [2024] ZAFSHC (23 January 2025}
Coram: Greyling-Coetzer AJ
Heard: 1 November 2024
Delivered: 23 January 2025
Summary: Exception -whether cause of action sustained -claim for specific
performance in terms of a contract
ORDER
1. The defendant 's exception is upheld.
2. The plaintiff is granted leave to amend its particulars of claim in terms of Uniform
Rule 28, within 10 (ten) days of the date of this order.
3. The plaintiff is ordered to pay party-and-party cost on Scale B.
JUDGMENT
GREYLING-COETZER AJ
[1] This is an exception in which the defendant {excipient) contends that the
plaintiff's particulars of claim lack the necessary averments to sustain a cause of
action.
[2) During March 2024 the plaintiff issued a combined summons in terms of
which it claims payment of the amount of R1 314 764.60 together with interest and
costs from the excipient. The particular of claim reveal that the plaintiff seeks payment
of the amount of R1 314 764.60, on the basis that it constitutes retention moneys
payable to it by the excipient.
[3] The plaintiff relies on a series of agreements which were concluded, leading
up to the plaintiff rendering services to the excipient. The allegations upon which the
plaintiff's cause of action is founded can conveniently be summarized as follows:
[3.1) On 16 March 2021, the plaintiff and the excipient entered into a written
agreement comprising of a General Conditions of Contract for Construction
Work -3rd Edition, 2015 (GCC2015) ("GCC"), a Service Level Agreement
("SLA") and other bid-supporting documents for the reconstruction of 2km
Nkitsing Bohlokong Road, contract number PW93/2021-BHM ("the Project").;
[3.2] On 13 April 2021 the excipient issued an appointment letter to the plaintiff,
appointing it to the Project. In terms of the appointment letter, the bidding price
for the project was R18 144 655.73 (VAT inclusive), and the project duration
was 12 (twelve) months from date of hand-over;
(3.3] In terms of the SLA, the excipient shall make payment to the plaintiff for the
services rendered as set out in the Scope of Works in Annexure A, and as
outlined in the Activity Schedule in Annexure A after receipt of a VAT invoice;
[3.4] The plaintiff relies on the following clauses in the GCC:
[3.4.1] Clause 5.14.1 -the plaintiff would be entitled to receive a certificate of practical 2
completion when the works have reached a defined stage of practical
completion, as set out in the Contract Data;
[3.4.2] Clause 5.14.2 -as soon as the list of outstanding issued had been completed,
the excipient's agent shall deliver to the plaintiff a certificate of practical
completion with a further written list of work to be completed to justify
completion;
[3.4.3] Clause 5.14.4 -as soon as the work referred to in the further list issued has
been completed, the excipient's agent shall deliver to the plaintiff a certificate
of completion;
(3.4.4] Clause 5.14.5 -upon the issue of a certificate of completion, the retentions
shall be reduced to half in terms of clause 6.10.5;
(3.4.5] Clause 6.10.5 -when a defects liability period is specified, one half of the
retention money shall become due and shall be paid to the plaintiff when the
excipient's agent has issued a certificate of completion in terms of clause
5.14.4. The other half shall become due and shall be paid to the plaintiff within
14 (fourteen) days of expiration of the defects liability period;
[3.5] It is alleged that the defects liability period was agreed to be a period of 52
(fifty-two) weeks;
[3.6] On 10 September 2021, the plaintiff handed the project over to the excipient,
having duly perlormed all its duties in compliance with the specifications
provided in the Scope of Word;
[3. 7] On 15 October 2021, the consulting engineer issued a certificate of practical
completion, incorporating a list of works to be rectified. The plaintiff duly
rectified and completed all outstanding works per the aforementioned list;
[3.9) On 25 November 2021, the consulting engineer issued the plaintiff with a
certificate of completion;
[3.1 O] On 20 May 2022, the plaintiff delivered a tax invoice to the excipient in the
amount of R1 314 764.60;
[3.11] In breaching the agreement , the excipient failed to make payment of the tax
invoice relating to the retention money.
[4] The excipient excepted to the plaintiff's particulars of claim on the basis that
it lacks the averments to sustain a cause of action, essentially due to: 3
[4.1] the plaintiff's failure to plead the conclusion of a valid contract for the specific
project;
[4.2] the agreements relied on, namely the GCC, SLA and letter of appointment, do
not constitute the complete contract between the parties;
[4.3] the GCC, expressly records that the "Contract Data" means the document that
sets out the specific data which, together with the GCC, which collectively
describe the risk, liability and obligations of the contracting party, the "Contract
Data" does not form part of the particulars of claim;
[4.4] the particulars of claim does not demonstrate the entitlement to payment in
amount of R1 314 764.60;
[4.5] the documents relied on do not demonstrate that the conclusion of a contract
for the construction of the specific road, for a bidding price of R 18 144 655. 73,
or that retention monies are payable to the plaintiff as alleged.
[5] An exception founded upon the contention that a summons or particulars of
claim discloses no cause of action, is designed to obtain a decision on a point of law
which will dispose of the case in whole or in part, and avoid the leading of
unnecessary evidence at the trial.1
[6] Where an exception is raised on the ground that a pleading lacks averments
necessary to sustain a cause of action, the excipient is required to show that upon
every interpretation that the pleading in question can reasonably bear, no cause of
action is disclosed .2
[7] A pleading must contain every fact which would be necessary for the plaintiff
to prove, if traversed, in order to support his right to judgment. The facta probanda
necessary for a complete and proper cause of action importantly does not comprise
of every piece of evidence which is necessary to prove each fact, but every fact which
is necessary to be proved.
[8] In evaluating an exception , the court must look at the pleading as it stands.3
The court will accept as true the allegations pleaded by the plaintiff to assess whether
a cause of action is disclosed.4 In assessing an exception, an overly technical
approach should be avoided, because it destroys the usefulness of the exception 4
Dharumpal Transport (Ply) Ltd v Dharumpa/ 1956 (1) SA 700 (A) at 706E; Alphina Investment Ltd
v Blacher2008 (5) SA 4 79 (C) at 483B
2
3
4 Vermeulen v Goose Valley Investment (Ply) Ltd[2001) 3 All SA 350 (A)
Burger v Rand Water2007 (1) SA 30 (SCA) at 32D-E
Living Hands {Pty) LtdN.0. and Another v DitzandOthers2 013 (2) SA 368 (GSJ) at 374G
proceedings, which is to weed out cases without legal merit.
[9] It is justified to briefly refer to Rule 18 of the Uniform Rules of Court in
aforementioned regard. Rule 18(4) provides that every pleading shall contain a clear
and concise statement of the material facts upon which the pleader relies for his
claim, defense or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposing party to reply thereto. Rule 18(6) provides that a
party who in his pleading relies on a contract, shall state whether the contract is
written or oral, when, where and by whom it was concluded, and if the contract is
written, a true copy thereof or of the part relied on in the pleading, shall be annexed
to the pleading.
[1 OJ It argument it was contended on behalf of the excipient that ex facie the
particulars of claim, read together with the annexures , the plaintiff has not disclosed
a cause of action, in particular because the agreements relied on does not
demonstrate that it relates to the specific project alleged in the particulars of claim,
nor do they demonstrate the appointment of the plaintiff for a specific project at a
contract value of R 18 144 655. 73, or that the retentions claimed are payable and that
the terms relied on has been complied with. The excipient contended that contrary to
aforementioned, the SLA specifically refer to payment being made according to a
VAT invoice for work done on an as-and-when basis.
[11] It was further contended that the GCC provided that "the contract" means the
documentation of the agreement between the parties in terms of the form of offer and
acceptance, and such written amendments or additions to the contract as may be
agreed to between the parties. Whilst the GCC described the "Contract Data" as the
documents that set out the specific data which, together with these General
Conditions of Contract, collectively describe the risk, liability and obligation of the
contracting parties, and the procedure for administration of the contract. The GCC
further describes "the contract sum" as the accepted amount provided for in the
agreement made in terms of the form of offer and acceptance , and the GCC describes
the "form of offer and acceptance " as the document that formalizes the legal process
of offer and acceptance , and gives rise to the contract.
[12] On behalf of the plaintiff, it was contended that the particulars of claim do
disclose a cause of action, and the failure to annex certain documents does not dilute
the averments pleaded in the particulars of claim, which sufficiently informs the
excipient of the claim against it. It was further argued that any alleged failure to place
certain annexures to the GCC before court can and will be cured through the process 5
of discovery.
[13] The plaintiff's claim is a claim for specific performance in terms of a contract.
As such, the plaintiff was required to allege the terms of the contract which entitle it
to payment of the amount of R1 314 764.60; allege compliance with any antecedent
or reciprocal obligations that would come before or entitle it to the payment of the
retention monies; allege non-performance by the excipient and then claim said
specific performance of the retention monies founded on that alleged.
[14] Although the plaintiff pleaded and relied on certain clauses in the GCC to
allege its entitlement to the retention monies, it failed to plead the terms applicable to
the payment of the retention monies, as provided for in the Contract Data. In addition,
the plaintiff failed to plead and place reliance on the specific term demonstrating the
quantum or percentage of the retention monies alleged to owing.
[15] Having regard to inter alia Clause 6.10.5 and 5.14.5 of the GCC and the
allegation that a defective liability period was applicable, there were more than one
permutations in respect of how and in what amount retention moneys will become
payable. The plaintiff failed to plead which found application and how the claim
amount was thus calculated. Absent aforementioned it cannot be concluded that the
plaintiff has alleged the terms of the contract relied upon for payment of the retention
monies.
[16] Aforementioned goes to that which is required by a party in terms of Rule 18.
The plaintiff alleges that it is entitled to payment of R1 314 764.60, but fails to plead
the material facts upon which it would be entitled to such retention monies. It is
necessary for a plaintiff in the position of the current plaintiff to plead the specific
terms pertaining to the retention moneys and payment thereof, as well as how same
is calculated in addition to the requirements of entitlement and reciprocal or
antecedent requirements.
[17] Although a court should endeavor to look benevolently instead of over
critically at pleadings , it should not push that benevolence to the length of upholding
a particulars of claim which, as it stands, discloses no cause of action, by altering its
language, by reading into it what is not there and ignoring what is, and by thus making
for the plaintiff a cause of action it had not put up itself. 5
[18]
5 There further appears to be a disconnect between the pleaded case and the
General Commercial and Industrial Finance Corporation ltd v Pretoria Portland Cement Co Ltd
1944 AD 444 at 453; Brits v Coetzee 1967 (3) SA 570 (T) at 571 6
documents attached in an attempt to prove that alleged. The plaintiff alleges that an
appointment letter was issued to it on 13 April 2021 for the construction of the "2km -
Nkitsing Bohlokong Road". The letter of appointment appended to the particulars of
claim is dated 16 March 2021 and relates to an appointment of a panel of twelve
contractors for construction and maintenance of roads and storm water infrastructure
on and "as and when basis" for a period of 3 (three) years, not for a specific project
known as "2km-Nkitsing Bohlokong Road". The letter of appointment further does not
demonstrate an appointment for the specific project at a bidding price of
R18 144 655. 73, nor does it contain any recording of a contract price or the amount
of retention monies. The GCC makes no reference to this specific project, does not
record the contract price, nor the value amount or retention monies, and there is
indeed no indication that it relates to the project alleged by the plaintiff for the
construction of the specific road, for a contract value of R18 144 655. 73.
[19] The SLA in turn was concluded before the letter of appointment and records
that the excipient appointed the plaintiff for construction and maintenance of roads
and storm water infrastructure on and "as-and-when-required basis" for a period of 3
(three) years, and that payment of the amounts owing for such work would be as
agreed in the Activity Schedule in Annexure A after receipt of the VAT invoices.
[20] In the circumstances, the documents relied on do not demonstrate that the
conclusion of an agreement for the construction of the specific road for a bidding price
of R18 144 655.73, or that retention monies are payable to the plaintiff, as alleged.
Aforementioned however does not demonstrate that the particulars of claim lack the
necessary averments to sustain a cause of action, but does result in the particulars
of claim being vague and embarrassing . Aforesaid finding should not detract from
that found in respect of the necessary allegations above.
[21] On the pleaded case as it stands, the plaintiff would only be entitled to lead
evidence in establishing the existing allegations which may very well result therein
that a substantial portion of the evidence may be regarded as inadmissible by the rial
court.
(22) Having found as aforesaid, the plaintiff ought to enjoy an opportunity to
amend its particulars of claim. Upholding the exception disposes of the pleading
against which exception was taken, and not the action • in totality. Although the
particulars of claim do not sustain the elected cause of action, such pleading
continues to exist.
[23] In respect of the issue of costs, I find no reason to deviate from the general 7
principle that cost should follow the event. As to the scale of cost, I am satisfied that
party-and-party costs on scale B is appropriate.
[24] Consequently, the following order is made:
1. The defendant's exception is upheld.
2. The plaintiff is granted leave to amend its particulars of claim in terms of
Uniform Rule 28, within 10 (ten) days of the date of this order.
3. The plaintiff is ordered to pay party-and-party cost on Scale B
Appearances:
For the Plaintiff:
Instructed by:
For the Excipient:
Instructed by: ADV. L. TLELAI
Mhlokonya Attorneys
ADV. M.C. LOUW
Peyper Attorneys 8