IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL DIVISION, DURBAN
CASE NO.: D8288/2024
In the matter between:
INTERLAGOS TRADING (PTY) LTD First Plaintiff
SOY AFRICA (PTY) LTD Second Plaintiff
DAVID CALO Third Plaintiff
and
SUNDALE FREE RANGE DAIRY (PTY) LTD First Defendant
MONDELEZ SOUTH AFRICA (PTY) LTD Second Defendant
2 a
JUDGMENT
ee
Olsen J:
(1] Each of the two defendants in this action has delivered a notice excepting
to the plaintiffs’ particulars of claim. The first defendant, Sundale Free Range Dairy
(Pty) Limited (“Sundale”) excepts both upon the basis that the particulars of claim are
vague and embarrassing and on the basis that they lack averments necessary to
sustain the action. The second defendant, Mondelez (Pty) Limited (“Mondelez”)
excepts only on the second of these basis.
[2] The first and second plaintiffs, Interlagos Trading (Pty) Limited
(“Interlagos”) and Soy Africa (Pty) Limited (“Soy”) are described in the particulars of
claim as “inter-related juristic persons” which fall under the direct or indirect control of
the third plaintiff, Mr David Calo.
[3] In my view the prolixity of especially the notice of exception delivered by
Sundale illustrates the difficulties experienced by the defendants in understanding the
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case they are called upon to meet. The particulars of claim appear to have been
designed to cover anything that may emerge from the evidence to be led at trial. From
the plaintiffs’ perspective Mr Calo is at the centre of everything. He knows the truth, or
at least his version of it. But it has been obscured rather that elucidated by the pleading
to which exception is taken.
[4] In their heads of argument counsel for the plaintiffs’ have argued, with
reference to Merb (Pty) Ltd v Matthews 2021 JDR 2889 (GJ) at paras 8 — 413, that in
considering an exception the court must look benevolently instead of over-critically at
a pleading. | do not think that the words “benevolently” and “over-critically” are of much
assistance as they appear to me to express extremes. | prefer the approach expressed
in the opening sentence of paragraph 3 of the judgment in Telematrix (Pty) Ltd ta
Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461 (SCA).
“Exceptions should be dealt with sensibly”.
And when approaching an exception to particulars of claim “sensibly” it is necessary
to bear in mind the duty of the defendant when denying an allegation of fact, that it
may not do so evasively “but shall answer the point of substance”. (See Rule 18(5).)
Self-evidently the “point of substance” must be readily discernible from the plaintiff's
particulars of claim. Unless propositions “x” and “y” can logically be regarded in the
context of a pleading as alternatives (and are expressed to be such), a defendant
should not be left in a position where, in an attempt to meet a point of substance, the
defendant must plead ‘if you mean “x” then this is my answer; but if you mean “y” this
is my answer. It is not over-critical of a pleading to require that it should convey with
reasonable certainty what case the defendant must meet at trial. To that extent at least
precision in pleading is a requirement.
[5] | find it convenient to furnish an account of the plaintiffs’ particulars of claim
before turning to the complaints made by the defendants in their notices of exception.
[6] Mondelez manufactures confectionary products, including chocolate.
Sundale is described as a “free range dairy”. It produces milk of the type required by
Mondelez. Mondelez has its registered address in Sandton, Gauteng but has a factory
in the Eastern Cape, within which province Sundale has its registered address.
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[7] It is alleged that in December 2020 Mondelez appointed Interlagos
(represented by Calo) to find and secure a long term supply agreement for
standardised milk to be delivered to the Mondelez factory in the Eastern Cape. Nothing
is said in the pleading about the terms upon which this appointment was made in
December 2020.
(8] Paragraph 10 of the particulars of claim then reads as follows.
“Calo, duly assessed and contracted Sundale as a supplier of fresh
standardised milk to Mondelez.”
It may be assumed that what is intended to be alleged is that Mr Calo represented
Interlagos in doing this. But that is not perfectly clear. The use of the word “contract”
as a verb (“contracted”) is vague. When this happened is not disclosed. How it
happened is not disclosed. The implication seems to be that the plaintiffs are talking
about a tripartite agreement. Its terms are not disclosed. Seen in the context of the
remainder of the pleading paragraph 40 merely sows seeds of confusion.
[9] At this point the particulars of claim do not follow a chronological sequence.
Itis alleged that “in due course” Mr Calo facilitated the conclusion of a products master
agreement (the “master agreement”) between Sundale and Mondelez. That
agreement was concluded during August 2021. It is written.
[10] It is then pleaded that Mondelez “simultaneously” (that is, presumably
during August 2021) “contracted Calo” to assist in managing its relationship with
Sundale for the duration of the master agreement, and to facilitate other opportunities
within the Mondelez group. The next paragraph alleges that Mondelez agreed to
compensate Mr Calo, alternatively Interlagos, for “these services” at a rate of 15 cents
per litre of milk purchased by Mondelez from Sundale “for the duration of any supply
agreement between the defendants.” (In context the terms “for the duration of the
supply agreement” and “for the duration of any supply agreement’ are contradictory.)
The particulars of claim do not record when the agreement to pay 15 cents per litre
was concluded, although one would think that the language used conveys that it was
at the same time as the agreement as to the services to be performed by Mr Calo were
agreed upon. However that is contradicted by the content of a letter dated 23 March
2021 which is annexed to the particulars of claim, and headed “Memorandum of
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