IN THE HIGH COURT OF SOUTH AFRICA, MPUMALANGA DIVISION,
(MBOMBELA MAIN SEAT)
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED YES/NO
02 OCTOBER 2025
DATE
In the application between:
NGWENYAAJ
SIGNATURE
ZENANE PROPERTIES (PTY) LTD
And
PDL PROPERTY MANAGEMENT (PTY) LTD
JUDGMENT
NGWENYAAJ
Case No.: 1619/2024
PLAINTIFF
DEFENDANT
[1] On 11 February 2021, the Plaintiff entered into a purchase
agreement with a company called Dayizenza Plaza (Pty) Ltd
("Dayizenza") in terms of which the latter sold its business as a going
concern, including its immovable property known as Portion 3 of the Farm
M'timba 20 Registration Division JU Mpumalanga Province ("the
property").
[2] The Defendant was the property management and broking
company, appointed by Dayizenza before the property was transferred
into the name of the Plaintiff.
[3] On 21 November 2021, the Plaintiff entered into a further agreement
("management agreement") with the Defendant, whereby the latter was
appointed as the managing agent of the Plaintiff, effective as of 13
September 2021.
[4] The Plaintiff claims that the Defendant breached the management
agreement in the following terms:
"15. The Defendant:
15. 1 Failed and/or refused to open a new account for the
plaintiff at the Executive date. In failing and/or refusing
to open a new account for the plaintiff on the effective
date, the defendant acted negligently and without due
care, with the resulting effect that there was no
separation of the income and expenditure of the
business before and after the Effective date. Copies of
the September 2021 and October 2021 cash flow
statements are attached hereto and marked annexure
"F" & "G".
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15.2 Failed and/or refused to arrange that all rentals be paid
into a specified bank account opened specifically by the
Landlord as contemplated in terms of clause 1. 1. 1 of the
agreement. In failing and/or refusing to arrange that all
rentals be paid into the specific bank account as afore
shadowed, the Defendant acted negligently and without
due care.
15.3 Failed and/or refused to account to the plaintiff monthly
as required. In doing so, the defendant acted
negligently and without due care.
15. 4 Claimed commission for the full rental period from the
plaintiff, in respect of new lease agreement entered into,
and demanded immediate payment after signing the
new lease agreements and not as and when the
applicable rental is paid as contemplated in clause 4.3
of the agreement."
[5] As a result of the alleged breach, the Plaintiff is claiming damages
in the amount of R6 631 377.28 (Six Million Six Hundred and Thirty One
Thousand, Three Hundred and Seventy Seven and Twenty Eight Cents).
[6] The Defendant has raised four exceptions on the basis that the
Plaintiff's particulars of claim do not contain averments necessary to
disclose a cause of action, alternatively, they are vague and
embarrassing.
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[7] At the hearing of the exception, the Defendant abandoned the third
ground of exception.
Applicable legal principles
[8] Herbstein and Van Winsen, the Civil Practice of the High Courts of
South Africa, 5th edition, Volume 1, at page 639, the authors say the
following:
"The excipient has the duty to persuade the court that upon eve,y
interpretation in which the pleading can reasonably bear, no cause of
action or defence is disclosed."
[9] The authors further refer to numerous cases, one of which is Francis
v Sharipe 2004 (3) SA 230 (C) at 233.
[10] In Amalgamated Footwear and Leather Industry v Jordan & Co Ltd
1948 (2) SA 891 (C) at 893, it was held that:
"ft seems to me that insofar that it can an onus on either party on a
pure question of law, it rests not upon the Plaintiff, but upon the
excipient. It is the excipient who is alleging that the summons does
not disclose a cause of action and he must establish that in all its
possible meanings no cause of action is disclosed."
[11] According to Herbstein and Van Winsen, above, Volume 1, pages
638 to 639, a Plaintiff has the following duty:
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"In order to disclose a cause of action, the Plaintiff's pleading must set
out every fact (material fact) which would be necessary for the Plaintiff
to prove, if traversed, in order to support his right to judgment of the
court. It does not comprise every piece of evidence which is necessary
to prove each fact, but every fact which is necessary to be proved."
[12] In this regard, the authors referred to Mackenzie v Farmers' Co
operative Meat Industries 1922 AD 1623 and other various decisions.
The Exceptions
[13] In its heads of argument, the Defendant combined the first, third and
fourth grounds of exceptions.
[14] The Defendant attacks paragraph 10 of the Plaintiff's particulars of
claim, which reads as follows:
"10. The defendant was the properly management and
broking company, appointed by Dayizenza Plaza prior
to the transfer of the ownership of the properly in the
name of the plaintiff. In executing its mandate and
obligation as properly manager and broking company to
Dayizenza Plaza, the defendant held security deposits
on behalf of Dayizenza Plaza as at date of the sale the
agreement being concluded between the plaintiff and
Dayizenza. In compliance with clause 9.3 of the sale
agreement (annexure "C" hereto), the defendant
credited the security deposits held by Dayizenza Plaza
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and/or it under the transferred contracts to plaintiff on
the effective date."
[15] The Defendant contends that there is no cause of action regarding
the security deposits as the Plaintiff, in paragraph 10 quoted above,
averred that the Defendant transferred the security deposits. This
contention is incorrect. The Plaintiff averred that the Defendant credited
the Plaintiff with the security deposits. The Plaintiff is now claiming
payment or transfer of the security deposits on the basis that the
management agreement has been terminated. Paragraph 10 must be
read together with paragraph 17 of the particulars of claim, which reads
thus:
"17. Having terminated the management contract and
mandate of the defendant, and as is implied by Jaw, the
defendant was obliged to pay over all security deposits held
by it on behalf of the plaintiff, to the plaintiff or another party
designated by the plaintiff."
[16] Accordingly, there is no merit in this contention.
[17] The Defendant further argues that the security deposits were held
on behalf of Dayizenza; therefore, the Plaintiffs claim lies against
Dayizenza in accordance with the terms of the sale agreement. In its
heads of argument and during argument, the Plaintiff contended that
effective from 13 September 2021, the Defendant also became the
management agent for the Plaintiff and therefore, in executing its
obligations under the management agreement, it credited the security
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deposits, which the Defendant previously held in its capacity as agent of
Dayizenza, to the Plaintiff.
(18] In clause 9.1 of the sale agreement, it is stated that with effect from
the effective date, the purchaser assumes all the seller's rights and future
obligations related to the business under the transferred contracts.
Accordingly, from the effective date when the management contract came
into effect, the Plaintiff assumed all rights to the security deposits
previously held by the Defendant, which the Defendant now holds on
behalf of the Plaintiff. Therefore, the claim lies against the Defendant and
not Dayizenza. The plaintiff has pleaded sufficient facts in this regard to
enable the Defendant to plead.
( 19] The Defendant further contends that the pro-rated rental claim is
based on the sale agreement and not the management agreement. This
contention is flawed in that, as already stated above, from the effective
date, the Defendant became the agent of the Plaintiff. Under the
management agreement, the Defendant had a duty to account to the
Plaintiff for rental collections as of September 13, 2021.
(20] Regarding the second ground of exception, the Defendant
contends that the Plaintiff did not open an account to enable the payment
of the rental to the Plaintiff. It argues that the Plaintiff did not plead that it
opened an account. The Plaintiff pleaded the opening of a bank account
in paragraph 23 of the particulars of claim, unless the Defendant wants
the Plaintiff to plead the account number, which I find to be a matter of
detail or evidence.
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[21 J Having evaluated the grounds of exception and applied the relevant
legal principles, there is no merit to the grounds of exception. The
Defendant wanted this Court to look at the particulars of the claim through
a magnifying glass. This is not the correct approach. As Plaintiff's counsel
submitted, the Court must have a benevolent approach when evaluating
particulars of claim.
[22] Regarding costs, they should follow the result.
[23] In the circumstances, I make the following order:
23. 1 The Defendanf s exception is dismissed with costs.
Counsel for the Plaintiff:
Instructed by:
Tel:
Email Address
WENYAAJ
ACTING JUDGE OF HIGH COLi .... ""', MBOMBELA
Adv. D Greyling-Coetzer
Braam Van Rensburg Attorneys
013 755 2484
pieter@bvrinc.co .za
Counsel for the Defendant: Adv. M Sethaba
Instructed by:
Tel:
Email Address
Date of hearing:
Date of judgment:
Eversheds Sutherland South Africa
C/O T ersia Marshall Atttorneys Inc
013 612 0742
info@tmatt.co.za
29 May 2025
02 October 2025
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