1
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED:
...
DATE SIGNATURE
CASE NO: 2024-052931
In the matter between:
ABSA BANK (PTY) LTD Excipient / Defendant
And
PORTIA XATASI Respondent/ Plaintiff
2
JUDGMENT
DREYERAJ:
[1] On or about 14 May 2024 the Respondent/ Plaintiff instituted action against the
Excipient / Defendant. For ease of reference the parties will be referred to as
Respondent and Excipient respectively.
[2] On 20 June 2024 the Excipient served a Notice of Exception on the Respondent
on the ground that the Particulars of Claim lack the necessary averments to
sustain a cause of action.
[3] The crux of the exception raised by the Excipient is that the Respondent has
failed to plead any basis in law, be it contract, delict, statute or otherwise, from
which the relief claimed can be sustained, and furthermore failed to plead any
legal basis for the Excipient's liability therefor.
[4] The Respondent seek to claim damages in the amount of R150 000 000.00
from the Excipient.
[5] The crux of the Respondent's claim, as set out in the Combined Summons and
Particulars of Claim is that the Excipient failed to insert in the offer to purchase
which was signed by the Respondent that should the Respondent fail to pay
her mortgage bond the Excipient would repossess her house and evict her. The
Excipient breached the offer to purchase by repossessing her house and
evicting her from the house.
3
[6] The relevant portions of the Summons and Particulars of Claim are the
following:
Summons:
"4.
BE PLEASE TO TAKE NOTICE FURTHER THAT in terms of Rule 9 of the first
schedule to the uniform rule 17(2) of court, the plaintiff hereby authorise the
sheriff to inform the defendant that the plaintiff hereby institutes action against
the defendant in which action the plaintiff claims as follows:
(a) That the plaintiff was granted a loan by the defendant in the year 2002.
(b) That the plaintiff bought a house with the loan granted by the defendant.
(c)
(d) That the plaintiff lost her job and failed to continue paying her loan
monthly instalments.
(e)
(f)
(g) That the defendant omitted to insert a clause in the offer to purchase
contract that should the plaintiff fail to pay her bond loan the defendant
would evict her out of the house and her belongings thrown out of her
house on to a public street.
4
(h) That the defendant breached the offer to purchase contract by
repossessing her and evicting the plaintiff out of her family loan onto a
public street.
(i)
(j) ,,
Particulars of claim:
"2.
BE PLEASED TO TAKE NOTICE FURTHER THAT the plaintiff is lodging an
application for reckless lending on a breach of contract in that the defendant
omitted to insert a clause in the offer to purchase contract, initialled and signed
by the plaintiff, that should the plaintiff fail to continue paying her bond account
loan, the defendant would repossess her house and evict her onto a public
street causing damages and losses to her furniture and personal possessions.
3.
4.
BE PLEASED TO TAKE NOTICE FURTHER THAT the plaintiff avers that in
the year 2002 the plaintiff was offered a home bond account loan by the
defendant to purchase a house situated at ERF 8854 DOBSONVILLE
EXTENSION 3 TOWNSHIP. The plaintiff accepted the offer and purchased the
property being in occupation.
5
5.
BE PLEASED TO TAKE NOTICE FURTHER THAT the plaintiff avers further
that during the conclusion of the initialled and signed offer to purchase the
contract between the plaintiff and the defendant, the defendant omitted to
inform the plaintiff, orally and in writing, as a special condition clause in the offer
to purchase contract documentation, that one of the terms and conditions of the
offer to purchase contract, is that the plaintiff is duty bound to pay her monthly
home bond account instalments towards the defendant, and that in the event
that the plaintiff is unable to continue paying her monthly bond account
instalments for whatever reason, inter alia due to loss of employment, the
defendant would repossess her house. Had the defendant informed the plaintiff
that one of the special conditions in the initialled and signed offer to purchase
contract agreement between the defendant and the plaintiff, is that in the event
that the plaintiff is unable to continue paying her home bond account loan, the
defendant would repossess and her house and order the plaintiff to evicted out
of the property, and her furniture and belongings thrown out, onto a public street
by a court ordered sheriff, the plaintiff would have thought for a second time
and never had taken the loan, as the plaintiff would have been armed with
knowledge of the pros and cons of the home loan bond account loan, and would
have been aware that in the event of loss of income and being unable to
continue paying her bond, the defendant the defendant would repossess her
family home and eject her.
6.
7.
6
8.
BE PLEASED TO TAKE NOTICE FURTHER THAT the plaintiff avers that the
defendant committed a breach of contract on the offer to purchase contract
documentation, between the plaintiff and the defendant, in that the defendant
enforced a non-existent clause in the offer to purchase contract, by
repossessing the plaintiff's home and ejecting her and her children onto a public
street, without such a clause in the offer to purchase contract documentation,
initialled and signed agreement indicating as a warning prior acceptance to
signing it by the plaintiff."
[7] The Respondent is apparently assisted herein by legal consultants, Collie and
Beatties Legal Consultants ("the legal consultants"). It is clear that the
Respondent did not receive proper legal advice and that she was ill-advised in
bringing the action. The manner in which the Summons and Particulars of Claim
is drafted shows a lack of legal knowledge and skill. The said legal consultants
did not appear on behalf of the Respondent, but appears to be giving the
Respondent legal advice. The legal consultants do not appear to be legal
practitioners as contemplated in terms of the Legal Practice Act 28 of 2014.
[8] The Respondent' Heads of Argument in the matter was prepared by Collin
Mashabela of the legal consultants.
[9] From the pleadings (Summons and Particulars of Claim) it is evident that the
Respondent's claim is based in contract, being the offer to purchase, and not in
delict or statute. The Respondent seeks to claim damages resulting from an
alleged breach of contract, i.e. the offer to purchase, by the Excipient.
[1 O] A party seeking to claim damages resulting from a breach of contract must
allege and prove inter alia the following:
7
10.1 the contract; and
10.2 breach of the contract.
[11] Rule 18(6) of the Uniform Rules of Court provides that a party who in his or her
pleading relies upon a contract shall state whether the contact is written or oral
and 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.
[12] The Respondent did not attach a copy of the offer to purchase to the Particulars
of Claim and avers she is not in a position to attach same is it was left in the
possession of the Excipient and she wasn't provided with a copy.
[13] Breach of contract means when a party to a formal agreement (contract) breaks 1
a condition (term) of that contract.
[ 14] In McKensie v Farmers' Co-operative Meat Industries Ltd 1922 AD 16 at page
23 the Appellate Division defined 'cause of action' to be "every fact which it
would be necessary for the plaintiff to prove, if traversed, in order to support his
right to judgment of the Court. It does not comprise every piece of evidence
which is necessary to prove each fact, but every fact which is necessary to be
proved."
[15] In Vermeulen v Goose Valley Investments (Pty Ltd 2001 (3) SA 986 (SCA) at
paragraph 7 it was held that "It is trite law that an exception that a cause of
action is not disclosed by a pleading cannot succeed unless it can be shown
that ex facie the allegations made by a plaintiff and any document upon which
his or her cause of action may be based, the claim is (not may) bad in law."
8
[16] In Living Hands (Pty) Ltd and Another v Ditz and Others 2013 (2) SA 368 (GSJ)
at paragraph 15 the applicable principles when considering exceptions were set
out as follows:
16.1 In considering an exception that a pleading does not sustain a cause of
action, the court will accept, as true, the allegations pleaded by plaintiff
to assess whether they disclose a cause of action.
16.2 The object of an exception is not to embarrass one's opponent or to take
advantage of a technical flaw, but to dispose of the case or a portion of
thereof in an expeditious manner, or to protect oneself against
embarrassment which is so serious as to merit the costs even of an
exception.
16.3 The purpose an exception is to raise a substantive question of law which
may have the effect of settling the dispute between the parties. If the
exception is not taken for that purpose, an excipient should make out a
very clear case before it would be allowed to succeed.
16.4 An excipient who alleges that a summons does not disclose a cause of
action must establish that, upon any construction of the particulars of
claim, no cause of action is disclose.
16.5 An over-technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out cases
without legal merit.
16.6 Pleadings must be read as a whole and an exception cannot be taken to
a paragraph or a part of a pleading that is not self-contained.
9
16.7 Minor blemishes and unradical embarrassments caused by a pleading
can and should be cured by further particulars.
[17] The Respondent has failed to establish a contractual link or nexus between the
Excipient and the Respondent. In terms of Rule 18(6) of the Uniform Rules of
Court as set out above, pleadings must state whether the contract was
concluded by the parties themselves or by agents acting on their behalf. The
Respondent does not set out who the parties to the offer to purchase was, what
the terms of the said offer to purchase was or that the Excipient breached a
term of the offer to purchase.
[18] A party alleging a contract must also allege and prove the terms of the contract
on which reliance is placed. The Respondent is not alleging that the Excipient
breached a term of the offer to purchase and therefor the Excipient breached
the offer to purchase. Instead, the Respondent alleges that the Excipient
breached the offer to purchase by not inserting a term in the offer to purchase
that should the Respondent fail to pay her mortgage bond, the Excipient would
repossess her house and evict her, and then repossessing her house and
evicting her from the house.
[19] On a reading of the pleadings, it is evident that it does not disclose a cause of
action. The Respondent's claim is bad in law.
[20] A party whose pleading is struck down on exception is afforded an opportunity
to amend the offending pleading as a matter of course, even if fatally defective
by reason of the failure to disclose a cause of action (See Group Five Building
Ltd v Government of the Republic of South Africa (Minister of Public Works and
Land Affairs 1993 (2) SA 593 (A) and Constantaras v BCE Foodservice
Equipment (Pty) Ltd 2007 (6) SA 338 (SCA)).
10
[21] However, in this matter the pleadings do not disclose a discernible or
recognisable cause of action in law. The pleadings cannot be remedied by
granting to leave to amend so as to disclose a discernible or recognisable cause
of action in law.
[22] On 14 June 2024 the attorneys of record for the Excipient addressed a letter to
the Respondent, which letter was placed before Court. From this letter it
appears inter alia that:
22.1 The Respondent instituted a similar action under case 2023-070394
("the 2023 action").
22.2 The Excipient launched an exception to the 2023 action.
22.3 The matter was heard on 13 March 2024 before the Honourable Justice
Siwendu. At this hearing the Respondent appeared in person and was
afforded an opportunity to withdraw the 2023 action.
22.4 The Respondent proceeded to institute a fresh action in 2024 under the
abovementioned case number.
22.5 The Respondent was afforded an opportunity to withdraw the action
under the abovementioned case number, and advised that should she
fail to do so, the Excipient will proceed to deliver an exception to the
Respondent's claim and shall also seek a punitive costs order against
the Respondent.
22.6 The Respondent was advised to seek proper legal assistance from a
registered attorney or a law clinic.
11
[23] It is apparent that the Respondent disregarded the said letter.
[24] I make the following order:
1. The exception is upheld.
2. The Respondent's Particulars of Claim is struck out.
3. A copy of this judgment is to be provided to the Legal Practice Council
and the Legal Practice Council is ordered to conduct an investigation
into Collie and Beatties Legal Consultants and report back to the
attorneys of record for the Excipient with its findings within 30 (thirty)
days of the date of this judgment.
4. The Excipient is to pay the costs of the exception on the attorney and
client scale.
ACTING JUDGE OF THE HIGH COURT
GAUTENG LOCAL DIVISION, JOHANNESBURG
This judgment was handed down electronically by circulation to the parties'
legal representatives by email and by being uploaded to CaseUnes. The date
for hand down is deemed to be 9 June 2025.
Appearances:
Appearance for Excipient / Defendant:
Instructed by:
Appearance for Respondent/ Plaintiff:
Date of hearing:
Date of Judgment: Adv. R Scholtz
Lowndes Dlamini Attorneys
Alexandra Wright (Attorney)
Tel.: (011) 292 5777
Email: alex@lowndes.co.za
In person 12
Assisted by Collie and Beatties
Legal Consultants
Email:
xatasiportia@gmail.com
3 June 2025
9 June 2025