SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA

CASE NO: 20928/22
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED.
DATE 12/08/2025
SIGNATURE N V KHUMALO J

In the matter between:

SAYELO (PTY) LTD PLAINTIFF/RESPONDENT

and

EXCIPIENTS/
THE GEMINI TRUST 1ST DEFENDANT

CHRIS CHRISTODOULOU NO 2ND DEFENDANT

THORA CHRISTODOULOU NO 3RD DEFENDANT

NICKY TOMMEI NO 4TH DEFENDANT

This judgment was handed down electronically by circulation to the parties’
representatives by email. The date and time of hand -down is deemed to be 12
August 2025
___________________________________________________________________
JUDGMENT
___________________________________________________________________

Khumalo N V J

Introduction

[1] In this Application the 1st Defendant, that is Gemini Trust and its Trustees, the
2nd to the 4 th Defendants except to the particulars of claim in an action instituted
against them by the Plaintiff, Sayelo (Pty) Ltd on the ground that the particulars fail to
disclose a cause of action.

Legal framework

[2] Prior to delving into the gist of the contention , it is imperative to mention the
ground rules in relation to an exception that a pleading does not disclose a cause of
action. It is a well-established approach that such an exception imply that the court is
to look at the pleading excepted as it stands,1 take as true the allegations pleaded by
the Plaintiff to assess whether they disclose a cause of action.2

[3] It therefore is the condition that in order to succeed , the excipient has to
persuade the court that upon every interpretation which the pleading in question, and
in particular the document on which it is based, can reasonably bear, no cause of
action or defence is disclosed, failing this, the exception is not to be upheld.3

[4] In so far as there can be an onus on either party on a pure question of law, it
rests upon the excipient who alleges that a summons discloses no cause of action or
that a plea discloses no defence; to convince the court that the pleading is excipiable
on every interpretation that can reasonably be attached to it; the pleading must be
looked at as a whole.4


1 Salzman v Holmes 1914 AD 152 at 156; Minister of Safety and Security v Hamilton 2001 (3) SA 50;
2 Oceana Consolidated Co Ltd v The Government 1907 TS 786 at 788; Stols v Garlick & Bousfield
Incorporated 2012 (4) SA 415 (KZP) at 421H; Drummond Cable Concepts and Advance Net Pty Ltd
2020 (1) SA 546 GJ at paragraph [7] Naidoo v Dube Tradeport Corp 2022 (3) SA 390 (SCA) at
paragraph [18]
3 Theunissen v Transvaalse Lewendehawe Koop Bpk 1988 (2) SA 493 (A) at 500E to 500F

3 Theunissen v Transvaalse Lewendehawe Koop Bpk 1988 (2) SA 493 (A) at 500E to 500F
4 Pretorius v Transport Pension Fund 2019 (2) SA 37 CC at 44F -G, Nel & Others NNO v McArthur
2003 (4) SA 142 (T) at 149 F

[5] An excipient should then make out a very clear strong case before he should
be allowed to succeed, s ave in the instance where an exception is taken for the
purpose of raising a substantive question of law which may have the effect of settling
the dispute between the parties,

[6] Accordingly an exception founded upon the contention that a summons
discloses no cause of action, or that a plea lacks averments necessary to sustain a
defence, 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. If
it does not have that effect , the exception should not be entertained. 5 The object of
an exception is therefore not only t o dispose of the case or a portion thereof in an
expeditious manner, but also to protect a party against an embarrassment which is
so serious as to merit the costs even of an exception.6

[7] The Plaintiff, Sayelo (Pty) Ltd, leases premises owned by Gemini Trust, the 1st
Defendant situated at Shop 1[...] B[...] V[...] Shopping Centre, The Reeds ( “the
shop”), in terms of a 5 year lease agreement the Plaintiff concluded with the latter’s
trustees, the 2nd to the 4th Defendants on 27 Jun 2019. The lease commenced on 1
July 2019. The Plaintiff conducts a laundry business from the shop and is claiming
from the Defendants an amount of R500 000.00 for damages /loss it allegedly
suffered, as a result of a fire that broke out at the premises.
[8] In its particulars the Plaintiff pleaded the conclusion of the lease agreement
and that “the terms thereof are incorporated as if specifically pleaded”. Further that,

[8.1] On or about 9 July 2020 a fire broke out at the shopping centre which
spread and caused damage to the Plaintiff’s shop,

Breach

[8.2] For the period between July 2020 and December 2021, the Plaintiff
was not able to use the shop for the purpose it was leased for and did not

5 Erasmus Superior Court Practice-D296-297

5 Erasmus Superior Court Practice-D296-297
6 Ghallagher Group Limited v IO Tech Manufacturing Pty Ltd 2014 (2) SA 157 (GNP) at 161C -D;
Pretorius supra at 44F-G; Brocsand Pty Ltd Tip Trans Resources 2021 (5) SA 457 SCA at para 14

have a beneficial occupation thereof , alternatively could not make use of the
entirety of the shop and did not have complete beneficial occupation thereof.

[8.3] Due to the breach by the Defendants , the Plaintiff suffered damages
as set out below:

Negligence

[8.3.1] The Defendant were negligent in one or more of the following
ways:

[8.3.1] The Defendants owed a duty of care towards the Plaintiff in that
it was obliged to protect the shop against the fire damage and or to
prevent fire damage to the shop.

[8.3.2] The Defendant failed to contain the fire at the shopping centre
and failed to prevent the fire from spreading to the shop.

[8.3.3] The Defendant did not have the necessary protection in place or
take the necessary precaution to contain the fire or to prevent the fire
from spreading to the shop.

[8.3.4] The Defendants owed a duty of care towards the Plaintiff to not
cause construction workers to interfere with the business of the
Plaintiff, obstruct the entrance to the Plaintiff’s shop, cause a nuisance
or a disturbance to the shopping centre and or the Plaintiff’s shop and
or to the Plaintiff’s clients or potential clients.

[8.3.5] The Defendants owed a duty of care to wards the Plaintiff to
keep the shopping centre and the Plaintiff’s shop clean during the
period of repair and construction as mentioned.

[8.3.6] and to do all things necessary in order for the Plaintiff to occupy
and be able to utilise the shop for the purpose the Plaintiff leases it.

[8.4] The Plaintiff failed to do the above.

[8.5] Due to the aforesaid negligence and or breach of the Defendants , the
Plaintiff suffered damages as described below, as a result of the fact that the
Plaintiff was unable to do business at the shop, alternatively to do business as
it previously did.

[9] The Plaintiff then claim s damages for goods destroyed in the fire , the loss of
income and future loss in the amount of R200 000.00.

[10] The Plaintiff’s claim is therefore based on the breach of duty of care, that is
Defendants’ failure to furnish it with or not being able to have a beneficial occupation
of the leased premises due to Defendants’ negligence or breach of duty of care, they
owed to the Plaintiff to prevent or stop the fire from destroying the shop, to not cause
disturbance and obstruction in the running of its business operations as a result of
which it suffered damages.

Exception

[11] The Defendants excepts to the particulars of claim on the following grounds:

[11.1] The plaintiff’s claim p urports to be a delictual claim based on
allegations that it suffered damages due to the negligence or breach of a duty
of care owed to it by the Defendant.

[11.2] The Plaintiff pleads the alleged duty of care in its particulars of claim:

[11.3] The facts averred to be in support of Plaintiff’s allegations that the
Defendants owed it a duty of care , do not give rise to such a duty of care in
light of the contractual relationship between the Plaint iff and the Defendants
as pleaded in the particulars of claim;

[11.4] In particular, the contractual relationship excluded any of the alleged
duties sought to be imposed on the Defendants in delict,

[11.4.1] The autonomy (self-rule) of the parties to the lease agreement
precludes imposition of duties in delict that may be different and have
different consequences.

[11.4.2.] In addition , any liability on the part of the Defendants for any
fire damages, delict and or any alleged damage or loss occasioned by
the construction to the leased premises were expressly excluded in the
agreement,

[11.4.3] The Respondents accordingly argue that the Plaintiff cannot
sustain a claim in delict and has no concurrent action in contract. In the
premises they fail to disclose a cause of action.

[11.5] As a result prays for the exception to be upheld and the Plaintiff to be
granted leave to amend its particulars of claim, failing which they pray to be
entitled to apply for the dismissal of the action.

Re: The exception that “ The facts averred to be in support of Plaintiff’s allegations
that the Defendants owed it a duty of care, do not give rise to such a duty of care in
the light of the contractual relationship between the Plaintiff and the Defendants as
pleaded in the particulars of claim;

[12] It is trite that t he Plaintiff is only required to plead sufficient facts to make the
cause of action intelligible and lucid. 7 A Plaintiff who fails to state his cause of action
with sufficient clarity is held to do so at his own risk.8

[13] The exception deals with the sustainability of the Plaintiff’s delictual claim on
negligence that is reliant on the facts pleaded on the duty of care the Defendants are

7 Koth Property Consultants CC v Lepelle Nkumpi Local Municipality Ltd 2006 (2) SA 25 (T) para 18
8 Du Preeze vs Boetsap Stores (Pty) Ltd p187 (1978) 4 All SA 184 NC

alleged to owe to the Plaintiff, in the face of their existent contractual relationship,
given the autonomy of the contract and its legally enforceable rights and obligations
arising.

[14] In principle, a legally binding promise, like a commercial document executed
by the parties with a clear intention that it should have a commercial operation would
not lightly be held to be ineffective . A similar approach would be adopted to oral
commercial agreements. This was elucidated in D.E and Another v C.E and Others 9
further stating that … “A further principle to be applied in a case such as this is that a
commercial document executed by the parties with the intention that it should have
commercial operation should not likely be held unenforceable because the parties
have not expressed themselves as clearly as they might have done.10
[15] In Beadica 231 and Others v Trustees for the Time Being of Oregon Trust and
Others CCT 109/19 11 the court emphasized the principle of pacta sunt servanda in
stating the following:

“Moreover, contractual relations are the bedrock of economic activity,
and our economic development is dependent, to a large extent, on the
willingness of parties to enter into contractual relationships. If parties
are confident that contracts that they enter into will be upheld, then
they will be incentivised to contract with other parties for their mutual
gain. Without this confidence, the very motivation for social
coordination is diminished. It is indeed crucial to economic
development that individuals should be able to trust that all contracting
parties will be bound by obligations willingly assumed.”

[16] The Plaintiff is bound by the terms of the written lease agreement it concluded
with the Defendants and it is not open to it to rely on facts that are contrary to the

9 (3991/19) [2019] ZAWCHC 142; [2020] 1 All SA 123 (WCC)
10 In this regard see also see Murray and Roberts Construction Ltd v Finat Properties (Pty) Ltd 1991
(1) SA 508 (A) …at 514B-F

(1) SA 508 (A) …at 514B-F
11 [2020] ZACC 13 at paragraph 84

terms thereof unless a challenge to the validity and or enforceability of the
agreement on public policy is simultaneously noted.12

[17] The Plaintiff’s claim as pleaded is in delict (based either on negligence or
breach of a duty of care) and therefore unsustainable given the autonomy of the
lease agreement , its binding terms, the specific exclusion of the f acts relied upon
from which the liability on the duty of care is alleged to arise , which exonerates the
Defendants from any such liability.13

[18] The terms of the lease agreement are pleaded by the Plaintiff to be
incorporated as if specifically pleaded. Clauses 11.3 and 11.4 of the agreement read:

“11.3 The lessee shall at its own expense insure and be responsible
for the stock , fixtures and fitting contained within the leased premises,
against theft, destruction by fire or any damage should a conflagration
take place in the leased premises, the lessee shall within a reasonable
time restore the leased premises and recommence trading.

11.4 Should a theft, fire or any damage take place only in the leased
premises, the lessor shall in no way be liable for any damage or loss
sustained by the lessee in consequence thereof no shall the lessee be
entitled to any remission rent whatsoever.”

[19] The clauses are inflexible. They cancel away the option of a doctrine of duty
of care arising as the Defendants are explicitly exonerate d from any liability ,
specifically in relation to a loss or damages suffered by the Plaintiff resultant from
inter alia, a fire . The particulars as far as such allegations on the delict are
concerned, fail to sustain a cause of action. The duty of care cannot trump the
binding effect of the terms of the c ontract unless they are contrary to public policy or
invalid.


12 Sasfin (Pty) Ltd v Beukes 1989 (1) SA 1 (A); de Beer v Keyser and Others 2002 (1) SA 827 (SCA)
para 22
13 Brisley v Drotsky 2002 (4) SA 1 (SCA) para 89 per Cameron JA

[20] Furthermore, c ourts are cautioned in line with the Constitution al value of
dignity, equality and freedom to approach their task of striking down contracts or
declining to enforce them with perceptive restraint, recognising contractual autonomy
to be part of freedom, shorn of its obscene excesses, to inform also the constitutional
value of dignity.14

[21] In Devland Cash and Carry (Pty) Ltd v GS4-Cash Solutions SA (Pty) Ltd15 the
court as per Moorcroft AJ grappled with the question whether delictual liab ility arises
in respect of services that were performed pursuant to a contract between the
parties, as pleaded in the Respondent/Plaintiff’s Particulars of Claim . Even though
he had found that: “A loss causally connected to a contract but not arising from the
performance of the contract but rather from additional or complementary duties may
give rise to a claim for delictual damages, subject to qualification s.” He continued to
find in that matter that ‘the delictual claim pursued by Devland arose pursuant to and
during the performance of G4S’s contractual obligations.

[22] The facts in summary where that Devland had in terms of a cash
management and security services contract it had with G4S that includes collection,
storage and delivery of money in accordance with G4S’s operating methods , made
two collections of cash from Devland’s premises on 9 September 2019. One before
noon and the second in the afternoon. Later that afternoon G4S’s armed vehicle was
robbed of both collections during a cash-in-transit. Devland instituted a claim against
G4S for the lost amount of the first collection. No claim was made (in contract or in
delict) in respect of the loss of the second collection. Devland a lleged that G4S’s
failure to timeously deliver the first collection before it was robbed was wrongful or
negligent, and in breach of a duty of care , which therefore rendered G4S liable to
Devland in delict for the loss of the money in accordance with the actio lex Aquilia .

Devland in delict for the loss of the money in accordance with the actio lex Aquilia .
Moorcroft J found that Devland’s loss occurred in the performance of the contract
and that G4S cannot be held liable in delict in respect of the services that were
performed pursuant to the contract between the parties, as pleaded. If G4S were
under a contractual obligation to first deposit cash before going for another collection

14 Ibid par 94. or 7
15 Devland Cash and Carry (Pty) Ltd v G4S Cash Solutions SA (Pty) Ltd (2020/16910) [2023]
ZAGPJHC 754 (3 July 2023)

and they had failed to do so, then Devland ’s potential claim would have been that of
contractual damages.

[23] In casu, the specific facts that the Plaintiff is reliant upon, alleged to give rise
to a duty of care are excluded by the contract. T here is a contractual remedy , with
the loss ar ising directly out of the circumstances that are covered in terms of the
contract, the Defendants cannot be held liable in delict. 16 It is further unclear if on
negligence the Plaintiff is basing it on the fact that the losses therefore did or did not
occur in the performance of the contract but were causally related.

[24] However, a delictual remedy cannot be made available merely because the
contracting parties could have provided for a contractual remedy but failed to do so,
or the parties excluded the contractual remedy in the contract that govern the
relationship between the parties. 17 The time to negotiate adequate contractual
remedies is, after all, when the contract is being negotiated.

[25] There is also a constitutional consideration that is also mooted on pacta sunt
servanda that, in our new constitutional era, it is not the only, nor the most important
principle informing the judicial control of contracts , but also the requirements of
public policy which are informed by a wide range of constitutional values. Where a
number of constitutional rights and values are implicated, a careful balancing
exercise is required to determine whether enforcement of the contractual terms
would be contrary to public policy in the circumstances. 18 In that case, there would
be no basis for privileging pacta sunt servanda over other constitutional rights and
values. In Barkhuizen Supra the SCA put it thus:

“[I]ntruding on apparently voluntarily concluded arrangements is a step
that Judges should countenance with care, particularly when it requires

16 G4S Cash Solutions SA (Pty) Ltd v Zandspruit Cash & Carry (Pty) Ltd and another [2022]
ZAGPJHC 7

ZAGPJHC 7
17 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) para
18. Brand JA said: “The point underlying the decision in Lillicrap was that the existence of a
contractual relationship enables the parties to regulate their relationship themselves, including
provisions as to their respective remedies.
18 In Barkhuizen SCA above n 173 at para 13,

them to impose their individual conceptions of fairness and justice on
parties’ individual arrangements.”

[26] According to Beadica 231 CC and Others v Trustees for the time being of the
Oregon Trust and Others (CCT109/19) [2020] ZACC 13; 2020 (5) SA 247 (CC);
2020 (9) BCLR 1098 (CC) (17 June 2020) certainty in contractual relations was said
to foster a fertile environment for the advancement of constitutional rights. The
protection of the sanctity of contracts is thus essential to the achievement of the
constitutional vision of our society. Indeed, our constitutional project will be
imperilled if courts denude the principle of pacta sunt servanda.

[27] On the other hand the terms in the lease agreement the Plaintiff relies upon
and the breach thereof are however not pleaded . Instead, there is an attempt at
pleading a brea ch of the lease agreement although not intelligible . It stated that
resultant from the fire, the Plaintiff was not able to use the shop for the purpose it
was leased for and did not have a beneficial occupation thereof, alternatively could
not make use of the entirety of the shop and did not have complete beneficial
occupation thereof. No reference is however made to the relevant clauses in the
agreement where such a breach is referred to.

Re: The exception that the Plaintiff in its particulars, cannot sustain a claim in delict
and has no concurrent action in contract.

[28] Duties that complement or are not repugnant to contractual obligations may
give rise to concurrent contractual and delictual claims . In Trio Engineered Products
Inc v Pilot Crushtec International (Pty) Ltd 19 Unterhalter J in dismissing an
exception to the second counterclaim and the alternative second counterclaim in that
matter opined that “the law occupies a middle ground between the two extremes of
recognising a delictual duty that co -exists with every contractual duty, and the
equally unpalatable approach of refusing to recognise a duty in delict whenever a

equally unpalatable approach of refusing to recognise a duty in delict whenever a
contractual duty is found to exist.” [framed in the alternative. He further stated that:


19 2019 (3) SA 580 (GJ). PARA 27

“[29] The position in our law may, I think, be summarised as follows:
(a) A breach of contract is not, without more, a delict.
(b) Where parties have chosen to regulate their relationship
under a contract, the contractual rights and obligations
undertaken will not ordinarily permit of the recognition of a
delictual duty at variance with the contract.
(c) Parties to a contract may have additional or
complementary duties that arise independently in delict. 20 (my
emphasis)

[29] It is therefore trite that a plaintiff is entitled to rely on mutually contradictory
averments in his particulars of claim, provided that it is clear from the manner of
pleading them, that he is only relying on the one , in the event that the other is not
sustainable.21 Although the claims may be concurrent their pleading must be
mutually exclusive, that is in the alternative. In the Plaintiff’s particulars of claim there
is no alternative contractual claim expressly pleaded and now with a claim in delict
contractually excluded, the Plaintiff’s particulars are excipiable for failure to sustain a
cause of action. The Defendants correctly argued that although the Plaintiff has
pleaded the conclusion of a written lease agreement, its cause of action is however
premised only on what appears to be a claim in delict and nothing significant
contractually.

[30] It is apparent that the Plaintiff’ has not pleaded a contractual claim as an
alternative to the negligence and or breach of duty of care . The gist is therefore that
there is no concurrent contractual claim pleaded with clarity and or in the alternative
in the Plaintiff’s particulars of claim . Since the autonomy of the lease agreement
precludes imposition of duties in delict that may be different and have different
consequences; a bsent the delictual claim the Plaintiff has no cause to meet. Any
liability on the part of the Defendants for any alleged damage or loss occasioned by

liability on the part of the Defendants for any alleged damage or loss occasioned by
the fire or construction to the leased premises were expressly excluded in the
agreement,

20 At PARA 29
21 Feldman NO v EMI Music SA (Pty) Ltd; Feldman NO v EMI Music Publishing SA (Pty) Ltd 2010 (1)
SA 1 (SCA) at para 11

[31] The Defendants had referred to Plaintiff’s pleading of various instances under
“Negligence” where it claims the Defendants were negligent and argued that
negligence does not arise in a contractual claim which instead is concerned with
whether there has been a breach of the contractual rights and obligations of the
contracting parties that may give rise to a claim based on the contract . Further that
delictual claims, on the other hand, arise from wrongful acts that cause harm, and
they are governed by the law of delict, not by the specific terms of a contract .

[32] In principle , contractual and delictual remedies are said not to be mutually
exclusive. Moorcroft AJ in Devland22 elucidates that the two can concur, however the
autonomy of contractual damages and remedies need to be respected, because the
parties’ voluntary rights and obligations according to the contract need to be
respected – before those imposed by law. He accordingly maintains that the
concurrence of the two does not mean that a delictual remedy must immediately and
automatically be made available merely because contacting parties failed to provide
contractual remedy when they could have done so.

[33] In Trio, Unterhalter J further opined as follows.23
“I recognise that the duties that are said to arise from the business
relationship do not, on the pleaded case, arise independently of the
agreement (since the agreement is pleaded to be foundational to the
relationship). Nevertheless, where the business relationship is built upon
an agreement but extends beyond the agreement and is complementary to
it, I see no reason why a cause of action in delict cannot be pursued in the
alternative as a claim that subsists concurrently with the claim based on a
breach of contract.”

[34] The Plaintiff amongst pleading negligence , also pleads various duties of care
allegedly owed by the Defendants to the Plaintiff and nothing in the alternative . The

22 Supra at para 17
23at para 40

Plaintiff’s particulars of claim indeed lack a lucid cause of action that would not cause
an embarrassment to the Defendants in pleading thereto, and therefore excipiable.

[35] Under the circumstances the following order is made:

1. The exception is upheld;

2. The Plaintiff is granted leave to amend its particulars of claim, within 15
(Fifteen) days from date of the order;

3. On Plaintiff’s failure to amend its particulars as per paragraph 2 hereof, the
Defendants are granted leave to approach this court to apply for the
dismissal of the action and

4. Plaintiff to pay the Defendants costs.

N V Khumalo
Judge of the High Court
Gauteng Division, Pretoria

For the Defendants/Excipients: A VORSTER

Instructed by: Christelis Artemides Attorneys
Ref: Mr L Marks Labus-0619
nicky@chrisart.co.za

For the Plaintiff/Respondent: G LOUW
State Attorney, Pretoria
advsenyatsi@gmail.com

Instructed by: Elliot Attorneys
Ref:1997/2022/Z17/NK
keegan@elliottattorneys.co.za
Ref: KRE/ME/KS0061