IN THE HIGH COURT OF SOUTH AFRJCA
(GAUTENG DIVISON, PRETORIA)
(1) REPORTABLE : NO
(2) OF INTERE ST TO O THER JU D
(3) RE VISED.
In the matter between:
PHILLIP RUDOLPH BOTHA NEL
and
WILLEM FREDERICK BOTHA
Jn Re:
WILLEM FREDERICK BOTHA
An d
PHILLIP RUDOLPH BOTHA NEL
JUDGEMENT
MOLOPA-SETHOSA J
CASE NO: 40966/2021
EXCIPIENT
RESPONDENT
PLAINTIFF
D E FENDANT
2
[ 1] The Plaintiff issued summons against the defendant on 1 7 August
2021 for the following orders set out in the Plaintiffs Particulars of
claim:
'J. Payment of R4,877,847,33 (FOUR MILLION, EIGHT
HUNDRED AND SEVENTY-SEVEN THOUSAND , EIGHT
HUNDRED AND FORTY-SEVEN RAND AND THIRTY-THREE
CENTS);
2. Payment of interest on the aforesaid amount at a rate of 10%
per annum from 2 August 2021 until date of final payment,·
3. Costs of suit;
4. Further and/or alternative relief.'
[2] The defendant excepted to the plaintiffs amended particulars of
claim on the grounds that it is vague and embarrassing and/or that it lacks
averments which are necessary to sustain a cause of action.
[3] The basis of the plaintiff's claim is that:
[3 .1] The plaintiff and a group of companies entered into a written
agreement ("the agreement").
[3.2] In terms of the agreement:
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[3.2.1] The group of companies acknowledged that the
plaintiff had lent and advanced the sum of R7,506,341.44
("the loan amount') to the group of companies;
[3.2.2] The group of companies would repay the loan
amount over a period of 36 months and make payment of a
monthly instalment of R242,208.52, provided that the full
outstanding balance of the loan amount would be due and
payable at the end of the loan term.
[3.3] The written agreement also contained a provision in terms of
wh ich the defendant bound himself as surety and co
principal debtor in favour of the plaintiff for repayment of
50% of the loan amount in the event of the group of
companies failing to comply with its obligations in terms of
the written agreement.
[3.4] The group of companies failed to comp ly with its obligations
in terms of the written agreement by failing to make
payment of any of the instalments provided for therein.
[3.5] A reconciliation statement reflects the outstanding amount
due by the group of companies as at 1 August 2021 to be
R9,755,694.67.
[ 4] The plaintiff contends that as a consequence of the group of
compan ies' default, the plaintiff is entitled to claim payment from the
4
defendant of 50% of the aforesaid amount, which is the R4,877,847,33
claimed in the particulars of claim.
[5] The defendant excepted to the plaintiff's amended particulars of
claim. The plaintiff has opposed the application.
[6] The defendant contends that the plaintiffs amended particulars of
claim are excipiable on the basis thereof that same does not disclose a
cause of action, alternatively that the amended particulars of claim are
vague and embarrassing.
[7] The defendant goes on to elaborate in what respect are the
amended particulars of claim excipiable. This is contained m the
defendant's notice of exception dated 30 November 2021.
(8] The defendant contends that the plaintiff's particulars of claim are
vague and embarrassing because paragraph 6.3 of the particulars of claim
states that the "group of companies would repay the loan amount ... "
whilst the acknowledgement of debt, (referring to the written agreement
aforesaid), states that the group of companies "must' repay the amount.
[9] The defendant further contends that it is not evident from the
agreement, on what basis the group of companies acknowledged their
indebtedness to the Plaintiff.
-[ 1 OJ The defendant contends that each company can only be indebted to
the plaintiff in the amount specifically advanced to the said company.
[ 11] The defendant further contends that . the agreement does not
disclose whether the companies would be jointly 6r jointly and severally
5
liable to the plaintiff; and the defendant contends that on this basis, the
agreement contains no valid causa debiti.
[12] In the context of the particulars of cl~im and the manner in which
the word "would" is used by the Plaintiff in paragraph 6.3, there is no
functional or practical difference between that word [i.e. "would'] and the
word "musf' used in annexure 'POCl' [the agreement/AOD as defendant
refers to it]. Both words have the effect of conveying that the group of
companies, i.e. Boneltha (Pty) Ltd, North Shore Trading 127 (Pty) Ltd,
At 8_12 (Pty) Ltd, Enkwanati 88 (Pty) Ltd and Imani Restaurant (Pty) Ltd
were collectively obliged to repay the loan amount to the plaintiff. The
defendant's objection is exceedingly technical and is clearly without
merit.
[13] It is not correct that it is not evident from the agreement on what
basis the group of companies acknowledged their indebtedness to the
plaintiff. T he agreement stipulates clearly that the plaintiff lent and
advanced the loan amount to the group of companies. Thus, ex facie the
particulars of claim and the annexures, the basis for the group of
companies' indebtedness was a loan by the plaintiff to the group of
companies. The defendant is thus not correct that the agreement does not
reflect a basis for the indebtedness.
[14] The defendant's contention that each company can only be indebted
for the specific amounts advanced to the said company by the plaintiff
can also not be correct. There is no indication, ex facie the amended
particulars of claim or its annexures, that the plaintiff loaned individual
amounts to each of the companies. Ex facie annexure 'POC I ', the amount
of R7 506 341.44 seems to have been loaned to the group of companies,
6
collectively; and it is specifically stated, as one of the terms of the
agreement that "the group of companies will be liable to effect the
monthly instalment jointly and severally ... ".
[ 15] The particulars of claim and the agreement clearly reflect that the
group of companies acknowledge that the loan amount was lent and
advanced to them, as a group, by the plaintiff; not individually.
[16] The defendant complains of an issue which does not arise on the
amended pleadings.
[ 17] On the contention that the agreement does not disclose whether the
companies would be jointly or jointly and severally liable to the plaintiff,
ex facie the agreement, each of the companies accepted liability to the
plaintiff for repayment of the loan amount. Each company is therefore
liable to the plaintiff for the full amount. And, as already mentioned
above, the agreement has actually recorded that "the group of companies
will be liable to effect the monthly instalment jointly and severally ... ".
This can be read to mean that the companies would be jointly and
severally liable to the plaintiff.
[ 18] As to the causa debiti, the defendant essentially argues that
because each company's individual indebtedness is not specified, the
agreement (which it calls an acknowledgement of debt) does not reflect a
valid causa debiti and is therefore invalid.
[19] The defendant's aforesaid argument is premised on the erroneous
assumption that each of the companies are liable for an individual
amount. Ex facie the pleadings, this is not so; each of the companies
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accepted liability to the Plaintiff as a group, jointly and severally with the
others, for repayment of the loan amou nt as reflected in annexure
'POC l '. There is therefore no individual indebtedness to speak of.
[20] It is trite that an acknowledgement of debt (as the defendant refers
to the agreement), which contains an undertaking to pay, gives rise to an
obligation to pay, which may found a new cause of action. In Adams v SA
Motor Industry Employers Association' Jansen JA stated as follows:
"Before us both counsel argued, in effect, on the basis that the
acknowledgment of debt created a new cause of action to pay the
balance of the purchase price and that thereafter, at least up to the
time of the cession, this obligation co-existed with the original
obligation under the deed of sale to pay such balance. As will be
seen, this assumption was fully justified.
There is ample authority to the effect that an acknowledgment of
debt, provided it is coupled with an express or implied undertaking
to pay that debt, gives rise to an obligation in terms of that
undertaking when it is accepted by the creditor; and it does not
matter whether the acknowledgment is by way of an admission of the
correctness of an account or otherwise. (CJ Divine Gates & Co Ltd v
Beinkinstadt & Co 1932 AD 256; Somah Sachs (Wholesale) Ltd v
Muller & Phipps SA (Pty) Ltd 1945 TPD 284; D Mahomed Adam
(Edms) Bpk v Raubenheimer 1966 (3) SA 646 (T).)"
1 1981 (3) SA 1189 (A) at 1198A
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[21] The agreement thus creates an obligation in respect of the group of
companies to make payment of the loan amount to the plaintiff. This
obligation founds a cause of action which entitles the plaintiff to sue on
the agreement. There can therefore be no uncertainty, ex facie the
pleadings, regarding the liability of the group of companies. There can
also be no doubt that the causa debiti is the loan by the plaintiff to the
group of companies.
[22] The legal principles relevant to an exception that a pleading does
not disclose a cause of action can be summarised as follows:2 Where an
exception is taken, the court must look at the pleading excepted to as it
stands, no facts outside those stated in the pleading can be brought into
issue, except in the case of inconsistency, no reference may be made to
any other document.
[23] In order 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 ought
not to be upheld;
[24] The court should endeavour to look benevolently instead of over
critically at a pleading; Save 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, an excipient should
make out a very clear, strong case before he should be allowed to
succeed.
2
D.E. Van Log gerenberg, Erasmu s: Superior Co urt Practice, Juta: Online Publication at RS I, 2016,
D 1-294 and the authorities there cited.
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[25] The legal principles relevant to an exception that a pleading is
vague and embarrassing can be summarised as follows:3 An exception
that a pleading is vague and embarrassing is not directed at a particular
paragraph w ithin a cause of action: it goes to the entire cause of action,
which must be demonstrated to be vague and embarrassing.
[26] An exception that a pleading is vague or embarrassing will not be
allowed unless the excipient will be seriously prejudiced if the offending
allegations were not expunged, Trope v South African Reserve Bank 4. The
effect of this is that the exception can be taken only if the vagueness
relates to the cause of action. If there is vagueness in this sense the court
is then obliged to undertake a quantitative analysis of such
embarrassment as the excipient can show is caused to him by the
vagueness complained of.
[27] In each case an ad hoe ruling must be made as to whether the
embarrassment is so serious as to cause prejudice to the excipient if he or
she is compelled to plead to the pleading in the form to which he or she
objects.
[28] The ultimate test as to whether or not the exception should be
upheld is whether the excipient is prejudiced. The onus is on the excipient
to show both vagueness amounting to embarrassment and embarrassment
amounting to prejudice. The defendant has not shown any in this regard.
3
D.E. Van Loggerenberg, Erasmus: Superior Cou rt Practice, Juta: Online Publication at RSI, 2016,
D 1-298-30 I and the authorities cited.
4 1992(3)SA208(T)
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[29] In my considered view the terms of the agreement, set out in
'POCl' are clear and are capable of being understood by the defendant,
who was the representative of the group of companies alluded to above,
and who signed on behalf of the said group of companies, as well a_s
"Surety and co-principal debtor for 50% of the amounts due and payable
to and in favour of Mr WF Botha for the debts of the companies".
[30] Having regard to the plaintiffs amended particulars of claim as
they stand, I cannot find any plausible reason why the defendant would
not be able to plead thereto. The defendant's exception lacks merit. The
defendant will be able to plead to the amended particulars of claim, and
all issues between the parties are to be fully ventilated by the parties at
trial. For the reasons alluded to above, the exception ought to fail
[31] In the result I make the following order:
1 The exception is dismissed with costs.
L M MOLOPA-SETHOSA
JUDGE OF THE HIGH COURT
Attorneys for the Plaintiff:
Counsel for the Plaintiff:
Attorneys for the Defendan/Excipient:
Counsel for the Defendant/Excipient:
Jennings Incorporated
Adv:NGLouw
Groenewald attorneys
Adv: D Prinsloo
. ..
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