IN THE HIGH COURT OF SOUTH AFRICA
[EASTERN CAPE DIVISION: MAKHANDA ]
CASE NO.1640/2019
In the matter between:
CNN DEVELOPMENT ENGINEERS AND Plaintiff
PROJECT MANAGERS CC
And
DR A.B. XUMA LOCAL MUNICIPALITY Excipient/Defendant
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JUDGMENT
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JOLWANA J
[1] The plaintiff instituted action proceedings against the defendant claiming monies
allegedly owed to it for engineering services rendered in respect of the construction
of Maqakazima and Gengqeleka to Ekunene access roads. This judgment concerns
the defend ant’s exception to the plaintiff’s particulars of claim. There was also
another similar action instituted by the plaintiff under case No. 1641/ 2024 in which a
claim of a similar nature , albeit for engineering services rendered in respect of a
number of other access roads is a subject of those proceedings . Because in both
matters all the issues are the same and the subject matter of this judgment in this
matter finds expression in that matter , the parties agreed that th e judgment in this
matter will be determinative of case no. 1641/2024 on the issue of the exception .
[2] After being served with summons t he defendant entered a notice of intention to
defend followed by a notice in terms of rule 23(1) of the Uniform Rules of Court .
Rule 23 (1) provides:
“Where any pleading is vague and embarrassing, or lacks averments which
are necessary to sustain an action or defence, as the case may be, the
opposing party may, within the period allowed for filing any subsequent
pleading, deliver an exception thereto and may apply to the registrar to set it
down for hearing within 15 day s after delivery of such exception: Provided that
- (a) where a party intends to take an exception that a pleading is vague and
embarrassing such party shall, by no tice, within 10 days of receipt of the
pleading afford the party delivering the pleading, an opportunity to remove the
cause of complaint within 15 days of such notice; and (b) the party excepting,
shall within 10 days from the date on which a reply to the notice referred to in
paragraph (a) is received, or within 15 days from which such reply is due,
deliver the exception. ”
[3] In its RULE 23 (1) notice , the defendant brought to the attention of the plaintiff , its
dissatisfaction with how the particulars of claim are framed and requested the
plaintiff to remove the cause of complaint. The plaintiff did not remove the cause of
complaint and therefore did not amend its particulars of claim. As a result , the
defendant delivered an exception to the plaintiff’s particulars of claim.
[4] The exception is based on two main grounds on the basis of which the defendant
asse rts that the plaintiff’s particulars of claim are vague and embarrassing and/or fail
to disclose a cause of action . The plaintiff relies on the written offer of appointment
on which certain terms and conditions are stipulated and the written acceptance of
the said offer by it which it claims , created a binding agreement between the parties.
It is common cause that b eyond the said written offer and the written acceptance
thereof , no written contract was entered into as alluded to in the written offer . The
written offer of appointment stipulated that a written contract would have to be
entered into within 14 days of t he acceptance of the said offer.
[5] The defendant also relies on section 116 of the Municipal Finance Management
Act 56 of 2003 (the MFMA) in terms of which a contract procured through the supply
chain management system of a municipality or municipal entity must be in writing
stipulating the terms and conditions of the contract. These must include , inter alia ,
provisions for the termination of the contract in the event of the non or under
performance and must contain dispute resolution mecha nisms to settle disputes
between the parties. The defendant also excepts to the particulars of claim on the
basis that the plaintiff does not state whether the contract that it alleges, came into
existence , was in writing or oral . If it was in writing , a true copy thereof or part
thereof was required to be annexed to the particulars of claim in terms of rule 18(6)
of the Uniform Rules of Court1. It was submitted on behalf of the defendant that for
all the above mentioned reasons the particulars of clai m are vague and
embarrassing and/or fail to make out a cause of action.
[6] It was submitted on behalf of the plaintiff that the plaintiff has specifically pleaded
that what created a binding contract between the parties is the written offer of
appointme nt as profession al engineers and the written acceptance thereof both of
which are annexed to the particulars of claim. It was further submitted that if the
defendant wants to assail the contract for its alleged invalidity for lack of compliance
with section 116 of the MFMA , it should plead that , but it cannot be heard to say that
it is unable to plead. The contract between the parties is a written contract based on
the offer and acceptance thereof, so went the argument. On these bases the plaintiff
denies that the particulars of claim are vague and embarrassing and/or fail to
disclose a cause of action.
[7] The test for exception s is whether or not on all possible readings of the facts no
cause of action can be made out. It is axiomatic that it is for the excipient to satisfy
the court that the conclusion of law for which the plaintiff contends cannot be
support ed on every interpretation that can be applied to the facts2.
1 Rule 18 (6) provides: A party who in his or her pleading relies upon a contract shall sate whether the
contract is written or oral and when, where and by whom it was concluded, and if the contract is
written a true copy thereof or the part relied on in the pleading shall be annexed to the pleading.
2 H v Fetal Assessment Centre 2015 (2) SA 193 (CC) at para 10.
[8] In Pretorius3 the legal position on exceptions was restated as follows:
“In deciding an exception a court must accept all allegations of fact made in
the particulars of claim as true; may not have regard to any other extraneous
facts or documents; and may uphold the e xception to the pleading only when
the excipient ha s satisfied the court that the cause of action or conclusion of
law in the pleading cannot be supported on every interpretation that can be
put on the facts. The purpose of an exception is to protect liti gants against
claims that are bad in law or against an embarrassment which is so serious as
to merit the costs even of an exception. It is a useful tool to we ed out bad
claims at an early stage, but an overly technical approach must be avoided.”
[9] It is evident from the pleadings themselves that the binding contract relied upon
by the plaintiff is the offer and acceptance . They are both annexed to the particulars
of claim . As Mr Sishuba , counsel for the plaintiff correctly pointed out, if the
defendant wants to plead a defence based on non -compliance with section 116 of
the MFMA, it is open to it to do so. What it cannot do is to claim an impediment from
pleading when it knows that the written co ntract referred to in the offer of
appointment was never entered into. Furthermore, the defendant knows , based on
the pleadings , that the binding contract on which the claim is based is the written
offer and the written acceptance thereof , an allegation t hat has been specifically
pleaded .
[10] It seems to me that the defendant has adopted an overly technical approach to
the plaintiff’s particulars of claim in that not only are the offer and acceptance
annexed to the particulars of claim but also the releva nt invoices are annexed
thereto . If there is any other factual matrix known to the defendant on which it would
seek to mount a challenge to the plaintiff’s claim , there can be no hindrance for it
doing so . The particulars of claim , while not a model of p erfection, as they stand , are
sufficient for the defendant to be able to plead to thereto and raise whatever defence
it seeks to raise . All the documents on which the plaintiff relies for its claim s are
annexed to the particulars of claim and the necessary averments referred to in rule
3 Pretorius and Another v Transport Pension Fun d and Another 2019 (2) SA 37 (CC) para 15.
18 (6) are pleaded sufficiently for the defendant to be able to plead . With all of that
being said, the defendant’s exception is unsustainable and accordingly falls t o be
dismissed .
[11] In the result the following order is issued:
1. The exception is dismissed.
2. The excipient is ordered to pay the costs of the exception on scale B referred to
in rule 67A of the Uniform Rules of Court.
______________________
M.S. JO LWANA
JUDGE OF THE HIGH COURT
Appearances
For the plaintiff : M. SISHUBA
Instructed by : MBABANE & MASWAZI INC.
c/o MJENXANE ATTORNEYS’ INC
Makhanda
For the defendant : F.H. SMIT
Instructed by : NOLTE SMIT INC.
Makhanda
Date head : 06 March 2025
Date Delivered : 13 March 2025