REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: -¥1t!'/ NO
(2} OF INTEREST TO OTHER JUDG ES: -7NO
~3i_, /c-1/:iVISED: YES ~
~ /21},5
DA TE
In the matter between:
SUN INTERNATION (S.A) Ltd
and
Case Num ber: 016830/2024
Plaintiff /R espondent
First Defendant/Excipient
Second Defendant
Delivered: This jud ent was prepared and authored by the Judge whose name is
reflected and is ha ed down electronically by circulation to the parties/their legal
representatives by - ail and by uploading it to the electronic file of this ma tter on
Caselines. The date r hand-down is deemed to be 11._ September 2025.
JUDGMENT
MAKHOBAJ
[1] In this exception, the First Defendant is the excipient and the Plaintiff is the
Respondent, for ease of reference the parties will be referred to as they are cited
in the summons .
[2] The Plaintiff's cause of action against the First Defendant is premised upon the
alleged breach of an 'express' warranty provided by the First Defendant to the
Plaintiff, that was orally agreed upon, under what is styled as 'the MBS Agreement'.
[3] The 'express' warranty arose through the First Defendant having recommended
the Second Defendant as an approved installer of a waterproofing product that
was supplied by the First Defendant and having undertaken to conduct site
inspections of the work and furnish the Plaintiff with site inspection reports in
respect thereof.
[4] The oral express warranty relates to the Second Defendant's workmanship in the
course of the application of the waterproofing product at the Valley of the Waves ,
Sun City.
[5] The grounds of exception are as follows:
5.1. There is an irreconcilable conflict between the alleged oral express
contractual terms of the common cause documents the Plaintiff itself
adduces as attachments to its particulars of claim .
5.2. The Plaintiff has failed to comply with the provisions of Rule 18(6) of the
uniform Rules of this court regarding the proper pleading of a contract, and
as a matter of law.
[6] Counsel for the First Defendant argued that the First Defendant never sought to
warrant the application of the product. The Plaintiff has thus sought to mount a
case that is inconsistent with the actual terms of the true governing agreement.
Furthermore, it is argued that the Plaintiff has not complied with Rule 18(6).
[7] In my view there is an express warranty by the First Defendant for the quality and
professionalism of the Second Defendant's workmanship. According to the
agreement between the parties, the Plaintiff must pay the Second Defendant's for
the supply and installation of the product. The works would be completed by or
during August 2021.
[8] It is further my view that, the Plaintiff has succeeded in proving on preponderance
of probabilities that the terms recorded in the revised quotation are not in conflict
with the terms recorded in the MBS Agreement.
[9] For the First Defendant to succeed an excipient has the duty 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 aught not to be upheld1.
[1 OJ Again a pleading is only excipiabl.e on the basis that no possible evidence led on
the pleadings can disclose a cause of action or defence2.
[11) The excipient must make out a very clear case in order to succeed3 and must
satisfy the court that there is a real point of law or a real embarrassment4.
[12] Finally, it is my view that there is no reason why the First Defendant could not
simply plead to the particulars of claim and, if necessary, deal w ith this complaint
as a special plea. In addition, the First Defendant, does not complain that it would
be embarrassed if it were forced to plead to these allegations.
[13] I make the following order:
13.1. The First Defendant's exception is dismissed with costs, including costs of
counsel on Scale B .
1 Lewis v Oneanate (Pty) 1992 (4) SA 811 (A) at 817 F.
2 Verme ulen v Goose Valley Investmen ts (Pty) Ltd 2001 (3) SA 986 (SCA) 997.
3 Trustees, Bu s Industry Restructuring Fund v Breakthrough Investments CC 2008 (1) SA 67 (SCA).
4 Jones v Beatty 1998 (3) SA 1097 (7) 1103
Date of Hearing: 27 August 2025
Judgment delivered: 17 September 2025
Appearances
For the Plaintiff/Respondent: Adv A . Berkowitz
For the Excipient/ 1st Defendant: Adv Y. Alli
D. MAKHOBA
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA