(1) REPORTABL E: NO
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(2) OF INTEREST TO OTHER
(3) REVISED: NO
rtl 91~ .. --.
DAT E
In the matter of:
SANDOWN MOTOR HOLDINGS (PTY) LIMITED
and
GCBS (PTY) LIMITED
JUDGMENT
MOKOSE J
CASE NO: 2024-082158
Plaintiff
De fendant
[1] The plaintiff (the excipient in this m atter) brings an exception before this court on the grounds
that the plea lacks averments wh ich are necessary to sustain a defence. The defendant opposes the
application.
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(2] The excipient alleges that the exception is raised in circumstances where the pleading does
not justify the conclusions drawn therein alternatively, the defence raised although adequately
pleaded, does not in law constitute a defence to the claim.
[3] Briefly, the facts are that the plaintiff issued summons on the 18 August 2023 in which it was
alleged that the defendant was in breach of its obligations in terms of a lease agreement concluded by
the parties in or about January 2020. The plaintiff claimed the sum of R999 980,00 together with
interest and costs.
(4] The plaintiff's claim was for the period December 2020 to May 2021. It was admitted by the
plaintiff that the buses were withheld in October 2021, nine months after the defendant had initially
fallen into mora. Accordingly, the plaintiff is of the view that this does not constitute a supervening
impossibility as pleaded by the defendant and that the defendant is precluded in law from relying on
that defence that may have arisen after the defendant had fallen into mora.
[5] The defendant filed its plea to the summons and counterclaim on 15 July 2024 in which it
averred that the plaintiff had withheld two of its buses, resulting in an inability to generate income,
thus causing a
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supervening impossibility" rending the defendant's performance in terms of the lease
agreement, impossible. A counterclaim was filed wherein the defendant sought an order that the
plaintiff had acted unlawfully in withholding the buses which had resulted in a loss of R280 000 per
month.
[6] The onus is always on the excipient to prove that the pleading in question is excipiable. The
excipient must establish that the pleading is excipiable on every interpretation that can reasonably be
attached to it.
[7] The defendant alleges in its plea that the plaintiff withheld two busses belonging to the
defendant which resulted in an inability to generate income, thus causing a supervening impossibility.
In the matter of Tweedie v Park Travel Agency (Pty) Limited t/a Park Tours1 the court affirmed the
1 [1998] 3 All SA 57 (W)
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position of I van Zyl Steyn in the book Mora Debitoris volgens die Hedendaagse Rome insHollandse Reg
(1929) as follows:
"We have already pointed out that the impossibility of performance which occurs before the debtor's
moro is an excusotio a mora. If the impossibility is due to casus fortuitus, the obligation is terminated.
The debtor's mora brings about a change in this: impossibility of performance, which occurs after the
onset of mora does not terminate the obligation mora perpetuat obligationem. In the case of the
debtor's mora, an exception is therefore made to the rule: casus a nemine preaestantur. This general
rule of Roman Law has been received into Roman Dutch Law. ft is treated by our writers under the
head of the contract of sole or in connection with it." [Translated from Afrikaans to En glish]
[8] On the defendant's version, it is clear that the alleged withholding of the busses occurred in
October 2021. Th is is approximately 9 mont hs after the defendant had fallen into arrears and its
obligation to the plaintiff. The defendant does not deal with the reason why the contract was breached
as alleged in the particulars of claim. I am of the view that the defendant is accordingly precluded
from relying on the defence of "supervening impossibility". I agree with the plaintiff that the plea lacks
averments necessary to sustain a defence.
(9) Accordingly, the order granted is as follows:
(i) The exception is upheld, and the defendant's plea is set aside.
(ii) The defendant shall amend its plea w ithin 10 days of service of this order.
(iii} The defendant shall pay the costs of the exception.
SNI MOKOSE J
Judge of the High Cou rt
Of South Africa,
Gauteng Division, Pretoria
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For the Applicant/ Excipient:
On instructions of:
For the Re spondent: Mr Marweshe
Adv MM Moodley
Jeff Donenberg & Co
On instructions of: M arweshe Attorneys
Date of hearing: 27 August 2025
Date of Judgement: 8 September 2025
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