2
[2] The first defendant has objected to the plaintiff’s proposed amendment and
opposes this application for leave to amend on the stated grounds that the
proposed amendment does not address the grounds of exception it raised ,
asserting that even after amendments, the particulars of claim would remain
excipi able on the same grounds.
Background
[3] Having read the particulars of claim (amended and unamended version ), the
plaintiff seeks to be paid an amount of R13 970 320.85 in respect of what it terms
as contractual damages for the alleged breach of a subcontract agreement. In
the alternative the plaintiff seeks the deba tement of an account and order that
the first defendant pay the amount found to be due to the pla intiff. This alternative
relief is premised on an oral agreement entered into in September 2021 , where
it is submitted by the plaintiff t hat the first defendant would pay the plaintiff the
amount found to be due to it consequent upon the debatement process.
[4] The plaintiff refers to itself as the “the sub -contractor ”, to the second defendant
as “the contractor” and t o the first defendant as “the employer.”
[5] On the 23 June 2022 the plaintiff instituted actio n under case number
33677/2022 against the second and third defendant for the same relief that it now
seeks in the present matter . One of the defences raised in the action under case
number 3367 7/2022 is that the second defendant in that action , which is the third
defendant in this action, ceded and assigned its rights and obligation under the
contract relied on by the plaintiff to the first defendant in this actio n. Instead of
applying to join the first defendant in th e action to the proceedings under case
number 33677/2022, the pla intiff issued a new summons wherein it cites all three
defendants and set out the same cause of acti on but its claim against the first
defendant is conditional on the success of the plea of misjoinder under case
number 33677/2022.
[6] The plaintiff in this case, submitted in its particular of claims that any re ference
to the third defendant “FP” and/or the “the Employer” should be read as referring
to the first defendant (Azrapart) as if specifically pleaded by way of reference.
3
Issues
[7] The issue to be determined in this matter is whether the plaintiff’s particulars of
claim disclose a cause of action against the first defendant, whether in their
unamended or amended form. In other words, in determining the two matters
before the court, i.e the Rule 28(4) application for leave to amend and the first
defendant’s exception, the issue to be determined is whether the plaintiff’s
particulars of claim would remain excipiable after the intended amendments was
effected, if allowed.
Grounds of exceptio n raised
[8] The first defendant note d an exception to the plaintiff’s particulars of claim on
three grounds, namely:
8.1 that there is no contractual nexus between the plaintiff and the first
defendant;
8.2 that Mr Swanepoel had no authority to conclude agreements on behalf
on the first defendant . There is no allegation that Mr Swanepoel was
authorised to represent the first defendant and there is no allegation that
linked Mr Swanepoel to the principal agent of the first defendant;
8.3 that a non -variation clause in the subcontract results in any oral
agreement concluded between the plaintiff and the first defendant being
null and void.
Legal framework
[9] The primary object of allowing an amendment is to obtain proper ventilation of
the disputes between the parties and to determ ine the real issues between them
so that justice may be done.1 Whether to grant or refuse leave to amend, is a
matter that falls in the court’s discretion, which is to be exercised judicially.2
1 See Nedbank Limited v Ouderajh (11969/2015) [2022] ZAKZDHC 8 (29 April 2022); Affordable
Medicines Trust and Others v Minister of Health and Others 2006 (3) SA 247 (CC); and Ascendis
Animal Health (Pty) Letd v Merck Sharp Dohme Corporation and Others 2020 (1) SA 327 (CC).
2 Embling and Another v Two Oceans Aquarium CC 2000 (3) SA 691 (C) at 6 94G-H.
4
[10] An amendment should generally not be permitted if its introduction would render
the pleading excipiable.3 In other words, the issue proposed to be introduced by
the amendment must be a triable issue.4
[11] Counsel on behalf of the plaintiff has directed the court to the case of R M van
de Ghinste & Co (Pty) Ltd v Van de Ghinste5 where the court explained that
where an objection is raised to a proposed amendment of a pleading on the
ground that the pleading would be excipiab le after amendment, the proper
approach is not to consider w hether the pleading might be excipiable, or
excipiability is arguable, but instead decide whether the amended pleading would
be excip iable. The court must thus decide the issue of excipiability.
[12] This view was based on the judgment in Crawford -Brunt v Kavnat and Another6
where the court states :
“If the pleading would appear to be possibly open to exceptio n or even if the Court is of
the opinion that the question of whether or not the pleading is excipiable is arguable, it
would see m to be the more correct course to allow the amendment.
This app roach is also, in my view, consistent with the general principle that amendments
should normally be allowed u nless the application to amend is mala fide , or unless such
amendment would cause an injustice to the other side which cannot be co mpensated
by costs.”
[13] Later, in YB v SB and Others NNO7 the court formulated the test applicable to
such circumstances as follows:
“It is a ccepted law that a cou rt will not allow amendments where their effect would render
such a pleading excipiable or where it does not cure an excipiable pleading.
The court must accept as correct the allegations contained in the particulars of claim,
incorporating the proposed amend ment, and determine whether those allegation are
3 AC/DC Dynamics (Pty) Ltd v Shrinik Retailing (Pty) Ltd and Another 2022 JDR (GJ) at para 12.
4 Trans -Drakensberg Bank Ltd (under Judi cial Management) v Combined Engineering (Pty) Ltd
1967 (3 ) SA 632 (D) at 641A.
5 1980 (1 ) SA 250 (C) at 258H -259A.
6 1967 (4) SA 308 (C) at 310D -311A.
7 2016 (1) SA 47 (WCC) at para 11 to 12.
5
capable of supporting a cause of action in respect of the assets of the R uby Trust
(Stewart and Another v Botha and Another 2008 (6) SA 310 (SCA) para 4) .
The defect in the pleading must appear ex facie the plea ding and no extraneous facts
may be adduced to show that the pleading is excipiable (Barbara v Barnard 2000 (3) SA
741 (C) para 10 ).
It is for the excipient (ie the trustees) to satisfy the court that the conclusion of law
pleaded by the plaintiff cannot be supported by any reasonable interpretation of the
particulars of claim.”
[14] The test on exception is whether , on all possible readings of the facts, no cause
of action may be made out. It is for the excipient, that is the first defendant in this
matter to satisfy the court that the conclusion of law for which the plaintiff
contends cannot be supported on every inter pretation that can be put upon the
facts.
[15] Our courts have consistentl y held that if an amendment rectifies the defects
complained of the exception falls away.8 The reason being that once a pleading
is amended the original pleading falls away, and any exception to the original
pleading becomes moot.9
Contractual Nexus
[16] It is contended by the plaintiff that the first defendant breached its obligations
under an oral agreement (9 September 2021) between the plaintiff and the first
defendant . On this basis the plaintiff submitted that it claims first ly, payment of
the damages that flows from this breach, alternatively specific performance in
the form of a statement and debatement of the account.
[17] The plaintiff submitted that under the oral agreement, the parties agreed that :
17.1 the Principal Agent (who represent the employer in the Principal Building
Agreement ) previously incorrectly certified payments due to the plaintiff
under the subcontract;
8 See Trope v South African Reserve Bank 1993 (3) SA 264 (A).
9 See Madiro v Madibeng Local Municipality 2021 JDR 2631 (GP) and supra .
6
17.2 the first defendant, through it appointed agent, would debate the
plaintiff’s account dated 17 April 2020; and
17.3 following the debatement , the first defendant would pay the plaintiff what
the contractor (second defendant) owed the plaintiff under the
subcon tract, notwithstanding the first defendant not being a party to the
subcontract.
[18] The plaintiff submitted that the first defendant’s agent did not debate the plaintiff’s
account of 17 April 2020 nor did the first defendant pay the plaintiff what is due
under the subcontract as undertaken.
[19] It is averred by the p laintiff that the contractual nexus that the plaintiff relies on is
the nexus crea ted by the oral agreement; not those emanating from either the
Principal Building Agreement or the subcontract . Thus, the plaintiff submit ted that
its cause of action (after amendment) is founded on the first defendant’s breach
of the oral agreement concluded between the plaintiff and the first defendant on
9 September 2021.
[20] It is contended by the plaintiff that by accepting the allegations plea ded in the
particulars of claim as true , the first defendant’s contention that no priv ity of
contract exists between the plaintiff and the first defendant is misguided and the
first ground of exception must therefore fail.
[21] The first de fendant contends that the plaintiff’s main cause of action is
encapsulated in paragraph 43 o f the plaintiff’s particulars of claim, which sets out
that the plaintiff is to be paid the amount of R13 970 320.85 as damages arising
from the alleged breach of con tract of a subcontract agreement.
[22] It is submitted by the first defendant that the subcontract is identified and defined
in paragraph 15.2 of the plaintiff’s particulars of claim as an agreement in writing
concluded between the plaintiff and the second defendant. The agreement filed
on re cord by the plainti ff contains the letter in terms of which the plaintiff was
appointed, as well as the express terms of the the subcontract . The first
defendant is not identified or referred to as a party to the subcontra ct agreement.
7
[23] In regard to the above, the defendant’s counse l has succinctly summarised the
pertinent aspects of the subcontract as follows:
23.1 The letter of app ointment was issued and signed by the second
defendant.
23.2 The cover page of the subcontract agreement identifies the second
defendant as “the Con tractor” and the plaintiff as “the Sub -Contractor.”
23.3 The entity referred to as “the Employer” is identified in clause 1.1 as “the
party contracting with the contractor.”
23.4 Clause 15.8 of the subcontract states that “there shall be no privity of
contract between the employer and a subcontractor appointed by the
contractor.”
23.5 Clause 25.7 (as amended) obliges the second defendant, and not the
first defendant, to pay the plaint iff.
[24] It is submitted by the first defendant that the facts alleged by the plaintiff
establishes that two contracts exist between the parties. The main contract was
concluded between the first defendant, as the employer , and the second
defendant, as the contractor. The subcontract agreement was concluded
between the second defendant , as the contractor, and the plaintiff as the sub -
contractor.
[25] It is therefore averred by the first defendant that the plaintiff is not party to the
main contract, and the first defendant is not a party to the subcontract agree ment.
Given that the first defendant was not a party to the subcontract agreement it has
no rights in terms of that contract and, more important ly, it had no obligations
arising from the contract. It is contende d by the first defendant that it follows that
the first defendant could not have breached a contract to which it was not a party
and in r espect of which it had no obligations that it could have failed to perform.
The alleged breaches set out in paragraph 33 of the plaintiff’s particulars of claim
are not supported by the the express terms of the subcontract or the facts alleged
by the plaintiff.
8
[26] In the premises, it is clear that the first defendant’s exception on the first ground
that there is no contractual nexus between the plaintiff and the defendant
pertains to the subcontract agreement (main claim) and is not aimed at the oral
agreement. The p laintiff does not address the the first defendant’s con tentio n
that no privity of contract exists between the plaintiff and the first defendant ,
because the plaintiff relies on the contractual nexus created by the oral
agreement . The plaintiff does not de al with the contractual nexus set out in
paragraph 43 of its particular of claims, wh ere I am in agreement with the first
defendant’s counsel , the main cause of action is e ncapsulated which is the claim
for damages arising from the alleged breach of a subcontract agreement.
[27] The particulars of claim, in its amended and unamended form does not remedy
the first defendant’s exception on the ground that there is no contractual nexus
in terms of the cause of action for the main relief claimed by the plaintiff as set
out in paragraph 43 of the the plaintiff’s particulars of claim. I therefore find that
in this respect the particulars of claim, accordingly, fails to disclose a cause of
actions against the first defendant .
Lack of authority
[28] The second ground of exception by the first defendant contests Mr Swanepoel ’s
authority to bind the first defendant in concluding the oral agreement. It is also
contended by the first defendant that there is no allegation that Mr Swanepoel
was authorised to represent the first defendant and there is no allegation that
linked Mr Swanepoel to the principal agent of the first defendant.
[29] The plaintiff in its amended particulars of claim pleads the following regarding the
first defendants second ground of excep tion:
“On or about the 9 September 2021 and at or near Fourways the plaintiff, there and then
represented by Jason van Wyk and FP, there and then represented by D awie
Swanepoel (of the quantity surveyor of FP) orally agreed that the dispute about the
incorrect payment certification would be resolved as follow s (“the September 2021
agreement”):
41.1 The previous pa yment certifications by FP of what is the plaintiff in terms of the
sub-contract is incorrect;
9
41.2 The plaintiff and FP would debate the acc ount dated 17 April 2020 of the
plaintiff; and
41.3 Upon conclu sion of the debate account of the plaintiff, FP would make payment
to the plaintiff of what is due to the p laintiff in terms of the sub -contract.
44.B After the dispatch of Anne xure “POC7” and leading up to as w ell as after the
dispatch of Annexure “POC9” , various virtual meeting and meetings in person
were held between the plaintiff, duly represented , and inter alia the defendants,
duly represented , in order to resolve the dissatisfaction with the certification of
the plaintiff’s work in terms of the subcontract as we ll as the quantification of
the value thereof inter alia:
44.B.1 On 15 October 2020 at Boogertman & Partners at approximately 12h00,
which meeting was inter alia attended by Mr Nico Rivett i of the Project
Manager, Mr Dawie Swanepoel of the Quantity Surve yor, Messrs Jury
Wickham and Brent Jachs of MECSA as well as Mr Opperman and Mr Janna
van Wyk of the plaintiff;
44.B.2 A meeting on 17 June 2021 attended by the aforementioned individua ls
in their representative capacities.
44.B. 3 In any one and or all of the aforementioned meetings, the first ,
alternatively third defendant, duly represented by an authorised representative
and/or the principal agent, duly represented by Mr Nico Rivetti, duly authorised
the Quani tity Surveyor to enter into negotiations with and settle with the plaintiff,
the dispute relating to the dis satisfaction with the certification of the plaintiff’s
subcontract works and the quantification thereof .
44.C.1 By virtue of the authority granted by the first, alternatively, third defendant
and/or the principal agent to the Quantity Surveyor, Mr Dawie Swanepoel was
duly authorised to enter into negot iations with the plaintiff as well as the
September 2021 agreement.
44.C.2 The P laintiff is not in possession of written authority granted by the first,
alternatively third defendant and/or principal agent to the Quanity Surveyor,
which document, altern atively documents constituting such authority, ought to
be in possession of the fir st, alternatively third defendant and/or principal
agent.”
10
[30] It is contended by the plaintiff that by accepting the factual statements above as
true for the purpose of deciding the exception, the claim is properly pleaded.
Whether or not Mr Swanepoel had the authority to represent the first defendant
is a question of fact to be determined at trial.
[31] It is my finding that the amended particulars of claim addresses the first
defendant’s exception in regard to the allegations that it was not alleged that Mr
Swanepoel was authorised to represent the first defendant in the plaintiff’s
unamended particulars of claims. In addition, the plaintiff in the particular s of
claims has also referenced the clause 6.1.1 of the subcontract agreement and
alleges that the “princi pal agent has full authority and is obligated to act and bind
the employer ” which deals with t he de legation of authority to act on behalf of the
employer. Furthermore, the full text of clause 6.1.1 reads as follows:
“The employer warrants that the principal agent has full authority and obligation to act
and bind the employer. The principal agent has no authority to amend the JB CC
Principal Building Agreement or the JBCC N/S Subcontract Agreement.
[32] The first defendant submitted that according to clause A5 of the contract data to
the subcontract agreement Mr Nico Rivetti of SIP Project Managers is identified
as the principal agent.
[33] The first defendant contends, in any event, if it is assumed that Mr Swanepoel
was the principal agent of the Employer , clause 6.1.1 of the subcontract
agreement clearly states that the principal agent is not authorised to amend the
terms of the main contract or the subcontract.
Non-variation clause
[34] The plaintiff submitted that a term of the September 2021 oral agreement was
that the first defendant would pay the plaintiff the amount found due to it
consequent upon the debatement process .
[35] The first defendant raises the exception that clause 25.7 (as amended) of the
subcontract agreement obliged the second defendant, and not the first
defendant, to pay the plaintiff, Consequently, the first defendant contended that
the terms of the September 2021 agreement purport to amend the terms of the
11
subcontract agreement in material respects, and even if Mr Swanepoel was the
principal agen t, which the first defendant has not conceded, Mr Swanepoel did
not have the authority to amend the terms of the subcontract agreement. The
first defendant therefore submits that it follows that the September 2021
agreement is not binding on the first defendant nor is it enforceable against the
first defendant. Thus, it is contended by the first defendant that the oral
agreement amends the terms of the subcontract agreement ; and is therefore
barred by the non -variation clause rendering the oral agreement null and void.
[36] However, the plaintiff pleaded that the parties to the oral agreement are the
plaintiff and the first defendant. The first defendant is not a party to the
subcontract and the plaintiff is not a party to the Principal Building Agreement.
On this basis, the plaintiff averred that there is no non -variation clause agreed to
between the plaintiff and the first defendant on the pleadings. An oral agreement
between the plaintiff and the first defendant is thus not barred by agreement
between them and the third ground of exception must fail.
[37] From the submission made by the plaintiff they are pleading that the September
2021 oral agreement is a new contract and that there is no prohibition that
precludes the employer, the first defendant from entering into a contract with the
the subcontractor, the plaintiff. However, in my opinion this cause of action is not
clear from the amended and unamended particulars of claim.
Evaluation and Discussion
[38] Counsel for the plaintiff has asked the court to look at the plaintiff’s particulars of
claim as whole and not for the court to take an overly technical approach. Having
heard the arguments made by the counsels and having examined the particulars
of claim as a whole, particularly in regard to the amendments made to the
particulars of claim, I am of the opinion that the plaintiff only addresse d the
second ground of exception (lack of authority) raised by the first defendant.
[39] The plaintiff ’s amendments in the particular of claims set out in paragraphs 44A,
44B, and 44C address es the issues raised by the first defendant in its sec ond
ground of exception regarding the allegation of the delegation of authority to Mr
Swanepoel and lack of authority of Mr Swanepoel.
12
[40] Regarding the first defendant’s first and second ground of exception to the
particulars of claim, from a reading of the plaintiff’s Heads of Argument and
having heard the plaintiff’s cou nsel, the main cause of action against the first
defendant is based on the September 2021 oral agreement which the plaintiff
alleges is a new agreement which does not fall within the purview of the
subcontract ’s non-variation clause. All of this is not clear from the particulars of
claim read as a whole. For example, paragr aph 43 of the particular of claims
deals with the claim of damages arising from the subcontract and not the alleged
22 September new oral contract. Paragraph 43 of the particulars of claims state:
“ As a direct consequence of the afore stated breache s by MECSA and FP of the sub -
contract, the plaintiff suffered contractual damages in the amount of R13 970 320.85,
being the balance due for the sub -contract works and si te instructions which were
performed by and as reflected in the plaintiff’s account dated 17 April 202 0, amounting
to R37 086 498, less payment received in the amount of R23 086 498.39.”
[41] Paragraph s 8 to 43 of the particular s of claim set s out the entire background of
the first action (case number 33677/2022) brought by the plaintiff against the
second and third defendant arising from the subcontract . It is this background
that forms the foundation of the plaintiff ’s main claim against the respondent
arising from the subcontract as set out in paragraph 43 of the particulars of claim.
It is only from paragraph 44 onwards that the alternative claim under th e oral
agreement is set out in terms of which i t is alleged that payment would be made
to the plaintiff up on the conclusion of the debatement. Paragraph 44 sates :
”In the alternative to the claim of the plaintiff against MECSA and FP for contractual
damages, the plaintiff is entitled to the debatement of the account dated 17 April 202 0
of the plaintiff, with FP, in terms of the September 2021 agreement and to payment of
what is found to be due to the plaintiff upon the conclusion of of such debatement.”
[42] Thus, the agreements by the plaintiff that the main cause of action against the
plaintiff is based on the September 2021 oral agreement, which is pleaded as a
new agreement by the plaintiff is not concisely and clearly articulated as the ma in
cause of action against the defendant in the particulars of claim , both in it s
amended and unamended form.
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[43] I am in agreement with plaintiff’s counsel that there is no prohibition that
precludes the first defendant (employer) from entering into a new contract with
the plaintiff (the subcontractor ). However, on a reading of the unamended and
amended particular s of claim, the relief sought in terms of the September 2021
oral agreement is founded and flows from the performance of services rendered
in terms of the subcontract. For example, paragraph 40 of the particular s of
claims, it is stated :
“In terms of the notice of disagreement the plaintiff demanded from FP that a meeting
be held between the plaintiff and the quantity surveyor of FP to resolve the dispute about
the incorrect payment certification.”
[44] What followed from this demand for a meeting by the plaintiff was the 9
September 2021 meeting as set out in paragraph 41 of the particulars of claim.
The pleading that the oral contract is a new contract being pleaded is unclear
and ambiguous from a reading of the particulars of claim.
[45] Furthermore, in paragraph 5 of the particulars of claim the plaintiff alleges that:
“the second and third defendants are cited herein insofar as they may have a real and
substantial interest in the relief claimed by the plaintiff and no substantive relief and/or
cost order is sought against the second and third defendants herein save in the event of
opposition hereto.”
[46] I am in agreement with the first defendant’s counsel that if no relief is sought
against the second and third defendant, then by default the relief sought must be
directed against the first defendant. But that is not what is sought in the first
prayer of t he particulars of claim in its unamended and amended form .
[47] Looking at the totality of evidence provided , the amended particular s of claim
appears to be a “patchwork of claims” cobbled together ; taken from the
33677/2022 case and imported in this case and added thereto is the partial
amendments made to address the first defendant’s exception. As a whole the
particulars of claim is not clear and concise in articulating that the plaintiff’s main
cause of action is founded on the first defendant’s breach of an oral agreement
concluded between the pla intiff and defendan t on 9 September 2021 , as a verred
by the Plaintiff ’s counsel .
15
Second Defendant: NO APPEARANCE
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