IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO : 057110/2024
(1) REPORTABLE:
(2} OF INTERES T TO OTHER JU DGES :
(3) REV ISE D.
DATE SIGNATURE
In the matter between:
SPESNET PROPRIETARY LIMITED Plaintiff
and
SOUTH AFRICAN NURSING COUNCIL Defendant
JUDGMENT
MBONGWEJ:
INTRODUCTION
[1) The Defendant excepts to the P laintiffs Particulars of Claim on the basis that
they fail to disclose a cause of action and are vague and embarrassing. The
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Plaintiff has claimed the amount of R36 million, being the balance of the
contractual amount of R39 million less two equal payments of R 1 .4m each
already paid by the Defendant for services allegedly rendered in terms of a
service level agreement ("SLA"). The plaintiff contends that the full
performance of its obligations in terms of the service level agreement was
frustrated by the Defendant's conduct. More specifically, the Plaintiff alleges
that the Defendant failed to maintain the stability of its systems as described
in the agreement and thereby rendered the plaintiff's further performance
impossible. In consequence, the plaintiff has invoked the doctrine of fictitious
completion to claim the total contractual amount.
Legal Principles
[2] The test for an exception is whether, on every reasonable interpretation of the
pleading, no cause of action is disclosed. The court must accept the factual
allegations as true and determine whether they sustain a claim in law.1
[3] Rule 18(4) of the Uniform Rules of Court requires that "every pleading shall
contain a clear and concise statement of the material facts upon which the
pleader relies for his claim." A pleading that omits material facts necessary to
sustain a cause of action is excipiable.2
'McKelvey v Cowan NO 1980 (4) SA 525 (Z) at 526D-E .
2 Trope v South African Reserve Bank 1992 (3) SA 208 (T) at 211 B-C .
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[4] A pleading is vague and embarrassing if it lacks sufficient particularity to
enable the opposing party to plead meaningfully.3
Grounds of Exception
1. THE ESCROW AGREEMENT
[5] The defendant has raised four grounds on which it premises its exceptions to
the plaintiffs particulars of claim, being that the plaintiff has failed to plead the
details pertaining to the fulfillment of the condition precedent that an escrow
agreement be concluded between the parties and an independent third party,
Maponya Incorporated, as an escrow agent, before the conclusion and
implementation of the Service Level Agreement ('SLA') between the parties.
The Defendant contends that the Plaintiff's omission to allege compliance with
the condition precedent and fulfilment of its obligation in terms of the escrow
arrangement, disentitled the plaintiff from seeking to rely on the SLA and
invoking the principle of fictitious completion of its obligations in terms thereof.
[6] The Defendant contends that the SLA was conditional upon the conclusion of
an escrow agreement involving a third-party, Maponya Incorporated, the
escrow agent. Although the conclusion of the escrow agreement was a
condition precedent for the conclusion of the SLA , the Defendant contends
that Plaintiff failed to plead:
• who represented the parties in the conclusion of the escrow agreement.
3 Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at 898F-899A.
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• whether the escrow agent accepted its appointment.
• whether the Plaintiff complied with its obligations under the escrow
Agreement.
• The date and place where the escrow agreement was concluded and
details of the parties that were involved in the conclusion of the escrow
agreement
The Plaintiff's omissions, the Defendant contends, render the claim
incomplete and incapable of sustaining a cause of action.
2. UNFOUNDED ALLEGATION OF WAIVER
[7] The Plaintiff incorrectly alleged that the Defendant had waived its right to
subject the parties' dispute to a remedial resolution mechanism such as
mediation and/or arbitration as per the SLA. On the contrary, it was the parties'
decision to subject their dispute to adjudication by a court.
3. FICTITIOUS COMPLETION PRINCIPLE
[8] The Defendant further contends that the Plaintiff's reliance on fictitious
completion of its obligations is misplaced absent allegations of full compliance
with the escrow agreement. The doctrine of fictitious completion, as
recognised in BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms)
Bpk4, applies where a creditor is prevented from completing performance due
to the debtor's conduct. The creditor may claim as if performance had been
4 1979 (1) SA 391 (A)
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completed, provided it was ready and willing to perform, and the debtor's
conduct rendered performance impossible.
(9] However, the application of fictitious completion requires a factual foundation.
The Plaintiff must allege that the Defendant's conduct frustrated performance,
and that, for its part, the Plaintiff complied with all the conditions precedent,
including any linked agreements, such as the escrow arrangement. In the
absence of such allegations, the claim is legally deficient.
4. Quantification
(1 0] In Minister of Safety and Security v Tyulu5, the court emphasised the need for
precise and substantiated quantification of the damages claimed. This is
pertinent in this case as the damages claimed do not fall in the category of
general damages , where the court has discretionary powers. The Plaintiff's
failure to deduct anticipated costs it would have incurred to discharge its
obligations renders the claim speculative and incapable of judicial
assessment.
OPPOSITION
[11] It is not in dispute that the combined summons was served on the Defendant
on 24 May 2024. The Defendant only filed its first notice of exception on 7
July 2024 - well outside the period of ten days indicated in Rule 23 (1) of the
Uniform Rules of the Court and again on 15 July 2024. No condonation in
terms of Rule 27 was sought for the lateness of the filing of these notices.
5 2009 (5) SA 85 (SCA ).
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[12] The defendant had withdrawn the notices of exception after the plaintiff had
filed notices of objection that the Defendant's notices constituted irregular
steps in terms of Rule 23 (1 ), followed by the Rule 30 notices.
[13] The Defendant, however, proceeded on 7 August 2024 to file a similar notice
of exception on the same grounds and constituting the subject in the present
hearing, again without seeking condonation. The Plaintiff seeks the dismissal
of the latest exception with punitive costs as a result.
ANALYSIS
[14] As will appear later in this judgment, it is my view that there is, to a great
extent, merit in the Defendant's grounds for excepting to the Plaintiff's
Particulars of Claim. For that, the Defendant seeks the dismissal of the
Plaintiff's claim with costs. On the other hand, the Plaintiff seeks the dismissal
of the Defendant's exception with punitive costs on the grounds of the lateness
of the filing of the exceptions, including the extant, which is similar in grounding
to the earlier withdrawn exceptions for which the Defendant tendered costs.
[15] On the grounds of both the Defendant's lateness in the filing of the
exception(s) and the Plaintiff's failure to satisfy the provisions of Rule 18 in
pleading its case sufficiently, despite the service of the relevant notice(s)
calling upon it to do so, this matter can be summarily disposed of in dismissals.
The inevitable consideration is whether both parties had intended for the
matter to be ended without full ventilation and determination by a court. Justice
will oe served, In my view, in allowing the parties the opportunity to fulfill their
agreed and common desire, despite the SLA stating otherwise, to directly
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engage in litigation for a court determination of the issues between the parties
to be made .
Conclusion
[16] The Particulars of Claim as they stand, therefore, fail to disclose a cause of
action and are vague and embarrassing. The Defendant cannot plead
meaningfully to the Plaintiff's allegations in the absence of essential
allegations pertaining to the escrow agreement and a proper quantification of
the Plaintiff's claim.
ORDER
(17] Consequent to the findings in this judgment, I make the following order:
1. The exception is upheld.
2. The Plaintiff's Particulars of Claim are set aside.
3. The Plaintiff is granted leave to amend its Particulars of Claim w ithin 20
days from the date of this order.
4. Failing compliance w ith order 3, the Defendant may apply for the
dismissal of the plaintiff's action.
5. The Plaintiff is ordered to pay the costs of the exception, including the
costs consequent upon the employment of twl"\A""l'TI">C
MPN MBONGWE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION PRETORIA
APPEARANCES
For the Applicant /Defendant:
Instructed by:
For the Plaintiff/ Respondent:
Instructed by:
Date of hearing:
Date of judgment:
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Adv D B du Preez SC ; Adv N P Mashabela
Diale Mogashoa Attorneys
Adv A Bishop
Richards Attorneys Inc.
24 April 2025
03 November 2025