THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: A2024-102280
SCA CASE NO: 656/2024
GJ CASE NO: 51959/2021
In the matter between:
BETAPOINT MANAGEMENT CONSULTANTS (PTY)
LTD
Appellant/Plaintiff
and
KPMG SERVICES (PTY) LTD Respondent/Defendant
JUDGMENT
DU PLESSIS J (with whom Dlamini J and Mfenyana J agree)
Introduction
[1] This is an appeal, with leave from the Supreme Court of Appeal to the Full Court
of the Gauteng Division, Johannesburg. It concerns an exception upheld by the High
Court1 against the appellant's particulars of claim, on the basis that the contractual
terms pleaded amount to an unenforceable agreement to agree.
1 KPMG Services SA Limited v Betapoint Management Consultant (Pty) Ltd [2024] ZAGPJHC 57.
(1) REPORTABLE: No
(2) OF INTEREST TO OTHER JUDGES: No
(3) REVISED: Yes
Date: 14 November 2025
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[2] Betapoint Management Consultants (Pty) Ltd (“Betapoint”) and KPMG Services
(Pty) Ltd (“KPMG”) are parties to a written Job Arrangement Letter (“JAL”) governing
KPMG’s Real Estate Optimisation Project. Betapoint was to review KPMG's leases
and recommend interventions to reduce associated costs. The JAL included a fee
structure based on the value of cost savings achieved through these interventions (the
"Transaction Stream").
[3] Betapoint alleges that it performed in accordance with the JAL, achieving
significant cost savings (pleaded at nearly R1 billion), and that it is entitled to variable
fees under the formula in clause 7 of the JAL.
[4] KPMG excepted to Betapoint's particulars of claim, raising objections to both
the main claim, based on the express terms of the JAL, and to two alternative claims,
one relying on implied or tacit terms and another seeking the development of the
common law.
[5] Only the exception to the main claim was upheld, on the ground that the JAL
contains an unenforceable agreement to agree; the exceptions to the alternatives were
dismissed. Accordingly, the sole issue before this court is whether the particulars of
claim for the main claim disclose a cause of action.
[6] Although the court a quo upheld the exception for vagueness and
embarrassment, all parties agree that the issue is whether a cause of action is
disclosed. The appeal, therefore, concerns the resulting order, not the court a quo's
reasoning, and focuses on whether the order considers if the particulars of claim
disclose a cause of action.
The JAL: Terms and structure
[7] The main dispute turns on clause 7 of the JAL, but other parts of the agreement
provide context. The covering letter to the JAL sets out the project's objectives and
scope, records that Betapoint completed "Phase Zero" free of charge, and indicates
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that all subsequent phases would incur fees in accordance with the stipulated
formulas.
[8] Clause 6 of the JAL outlines the baseline assumptions for Betapoint’s provision
of services, including conditions such as KPMG's cooperation and the timely supply of
information. If these assumptions are not fulfilled, clause 6 obliges the parties to
negotiate in good faith to revise work plans, schedules, and fees.
[9] Clause 7 is the core of the dispute and the centre of KPMG’s exception. Clause
7, titled “Duration, Fees and Expenses,” states that KPMG “agrees to pay Betapoint
the fees and expenses referred to in this letter in accordance with its terms”. It then
provides an operational formula for a variable fee calculation that links the payment to
the value of the cost savings KPMG will realise from implementing the deliverable.
One such example is that Betapoint will be paid 10% of the total transaction value in
the event of a successful sub-let transaction by KPMG. A crucial invoicing provision in
this clause states:
“The determination of the value of the cost savings or transaction value, for the
purposes of determining the fee owing to Betapoint, will be agreed upon by the Parties
prior to the presentation of a valid invoice. Should the parties fail to agree on a value
within 7 days, the dispute resolution process outlined in Section 10 of our Terms of
Business will be applied”.
[10] The dispute between the parties concerns whether this clause creates an
enforceable obligation to pay determinable fees or, by requiring agreement on cost
savings or transaction value before invoicing, defers a material term to the future,
rendering it unenforceable (an “agreement to agree”).
[11] Clause 8 of the JAL allows either party to terminate the agreement and provides
that in such an event, KPMG must pay Betapoint the fees and expenses incurred up
to the date of termination, as fees and expenses shall be due and payable
immediately.
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[12] The Terms of Business attached to the JAL include additional provisions.
Section 10 outlines the procedure for resolving disputes between the parties: they
must first try to settle disputes internally through management escalation and, if that
fails, utilise a mutually acceptable alternative dispute resolution process before
resorting to litigation.
[13] These terms must thus be construed in line with the accepted contractual
interpretation methods.
Legal principles applicable
[14] The principles governing exceptions are well established. First, pleaded facts
must be taken as true.
2 Second, the excipient must show that on every reasonable
interpretation of the pleadings, no cause of action is disclosed. 3 Third, exceptions
should not resolve questions of vagueness or enforceability where evidence may be
necessary.4 Linked to that, the object of an exception is to avoid the leading of
unnecessary evidence where a claim is untenable in law; 5 it is not a device to exploit
minor technical deficiencies.
[15] When considering those principles, it is also important to consider the
interpretation principles applicable to contract law. In contract cases, courts should
seek to uphold bargains, not destroy them.
6 A court must adopt a businesslike
interpretation that does not stultify the broader operation of the agreement.7 Contracts
must be interpreted in light of the contract as a whole.8 In case of ambiguity, a contract
must be construed to avoid an inequitable result and on the basis that the parties
negotiated in good faith.9 Courts should adopt a holistic approach that considers text,
context and purpose. 10 Importantly, evidence of context and purpose is admissible
2 Trustees for the Time Being of Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA)
para 10; Michael v Caroline’s Frozen Yoghurt Parlour (Pty) Ltd 1999 (1) SA 624 (W) at 632-634.
3 Michael v Caroline’s Frozen Yoghurt Parlour (Pty) Ltd 1999 (1) SA 624 (W) at 632-634).
3 Michael v Caroline’s Frozen Yoghurt Parlour (Pty) Ltd 1999 (1) SA 624 (W) at 632-634).
4 Picbel Group Ltd v Somerville 2013 (5) SA 496 (SCA) para 26 ; Shepherd Real Estate Investments (Pty) Ltd v
Roux Le Roux Motors CC 2020 (2) SA 419 (SCA) paras 16–18.
5 Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) at 706.
6 Namibian Minerals Corporation Ltd v Benguela Concessions Ltd 1997 (2) SA 548 (A) at 561G.
7 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 para 26.
8 Centriq Insurance Co Ltd v Oosthuizen 2019 (3) SA 387 (SCA) para 17.
9 South African Forestry Co Ltd v York Timbers Ltd 2005 (3) SA 323 (SCA) para 32.
10 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 paras 18, 26; .
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even when the contract is unambiguous. 11 If the terms are ambiguous or require
factual context for proper interpretation, the matter is not suitable for determination on
exception.12
[16] As to the contract itself, it is accepted in law that agreements to agree are
unenforceable unless they are subject to a deadlock-breaking mechanism. 13 Without
such a mechanism (or a readily ascertainable external standard by which the court
can fill the gaps), agreements to negotiate or agree on essential contractual terms in
the future cannot be enforced for lack of certainty.
[17] Whether an agreement is an agreement to agree will depend on its
construction. The question is thus how to interpret the provisions of the JAL.
The parties’ submissions on the interpretation of the JAL
[18] Betapoint states that clause 7 does not amount to an agreement to agree.
Instead, clause 7 prescribes a fixed, objective formula for determining fees based on
the percentage of cost savings or transaction value achieved. The requirement to
agree is administrative, not an invitation to renegotiate the fee each time an invoice is
issued. The agreement on value is not a condition for Betapoint’s entitlement to
payment. If the parties cannot agree, one party (e.g., Betapoint) may still seek to
recover its fees calculated under the JAL formula and, if there is disagreement, enforce
them through court proceedings, where KPMG may then challenge the calculation by
showing how Betapoint misapplied the contractual terms. This interpretation,
Betapoint submits, is supported by the clear language in clause 7, which refers to
specific fee amounts and percentages, and would not render Betapoint's entitlement
illusory or wholly dependent on KPMG's goodwill. The contract should not be
construed to allow KPMG to avoid payment for substantial services rendered and
benefits received.
14 Furthermore, since an agreement to agree will have the effect of
benefits received.
14 Furthermore, since an agreement to agree will have the effect of
destroying the parties’ bargain, the court’s approach to interpreting such agreements
11 University of Johannesburg v Auckland Park Theological Seminary 2021 (6) SA 1 (CC) at paras 66-68
12 Jowell v Bramwell-Jones 1998 (1) SA 836 (W) at 898I–899D.
13 Shepherd Real Estate Investments (Pty) Ltd v Roux Le Roux Motors CC [2019] ZASCA 178 paras 10 – 18.
14 See analogous situations in Chamotte Holdings (Pty) Ltd v Carl Coetzee (Pty) Ltd 1973 (1) SA 644 (A) at 649D–
G; Genac Properties JHB (Pty) Ltd v NBC Administrators CC 1992 (1) SA 566 (A) at 574.
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must be benevolent and, where possible, seek to adopt an interpretation that avoids
destroying the bargain.15
[19] While Betapoint submitted that, on the face of it, clause 7 does not constitute
an agreement to agree, other clauses in the contract support this interpretation. Clause
6 of the contract addresses the assumptions underpinning Betapoint’s service
delivery. It outlines the baseline conditions under which Betapoint can apply its fee
table, implying that if these assumptions are met, the fees payable are those stipulated
in the agreement. It also details what would happen if KPMG failed to take certain
steps, and it requires the parties to negotiate in good faith to adjust schedules and
renegotiate applicable fees and timetables. Betapoint’s submission is that this
structure presupposes the existence of enforceable, determinable fees. The risk and
liability regime, as well as adjustment mechanisms, only make sense if the fees are
not left undefined or left to future agreement, but can be ascertained by reference to
the contractually prescribed formula. To interpret the contract otherwise would render
these provisions meaningless.
[20] Betapoint contends that clause 8 further strengthens its case. The clause
provides that, upon termination, KPMG must pay Betapoint all fees and expenses
incurred up to the date of termination. This presupposes that fees are calculable in
accordance with the contract's objective mechanisms, even if the contract ends before
full project completion. If, as KPMG contends, fees only vest upon agreement under
clause 7, then upon termination before such agreement, Betapoint would have no
entitlement. This result, Betapoint says, is commercially illogical and inconsistent with
the plain language of the termination clause.
[21] Betapoint also refers to section 9 of the Terms of Business, which similarly
indicates that Betapoint would earn a determinable fee for its work. They thus have a
indicates that Betapoint would earn a determinable fee for its work. They thus have a
vested right to a determinable fee once Betapoint has delivered, and, as a result ,
clause 7 cannot reasonably be interpreted as an agreement to agree.
15 They rely on Chamotte (Pty) Ltd v Carl Coetzee (Pty) Ltd 1973 (1) SA 644 (A) at 649 and Genac Properties JHB
(Pty) Ltd v NBC Administrators CC (Previously NBC Administrators (Pty) Ltd) 1992 (1) SA 566 (A) at 574.
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[22] Finally, Betapoint submits that if one rejects that the words are unambiguous or
that the ambiguity can be resolved by referring to the rest of the contractual terms,
then there is a severance clause in the Business Terms (section 11(f)) which states
that if any provision in the agreement is illegal or unenforceable, that term or provision
shall be deemed not to form part of the agreement, while the remaining terms will
remain in full force and effect. Therefore, if the court ultimately finds that the invoicing
provision is void for vagueness, the appropriate order is to dismiss the exception and
permit KPMG to plead that the invoicing provision is void for vagueness and cannot
be severed from the JAL. Whether the invoicing provision is severable is a matter that
may properly be determined at trial.
[23] KPMG, on the other hand, advances a textual interpretation of the underlined
words.
16 They submit that the wording is clear: no valid invoice can be presented
unless the parties have agreed to the values that inform the amount to be invoiced. It
simply means that the parties must determine the values of the transactions and
savings, which, in turn, will determine the fees that Betapoint can invoice KPMG for. If
there is no such agreement, Betapoint may not raise an invoice, as the underlying
values and savings that will impact the invoice fee have not been agreed upon. This
must be agreed upon “prior to the presentation of a valid invoice”. The reason for this
is that the values are not objectively determinable. And absent a clear and
determinable deadlock-breaking mechanism,
17 clause 7 is an unenforceable
agreement to agree.18 This might seem unbusinesslike, but it is not for the court to fix
a bargain badly made, they submit. The court below agreed with this interpretation
and upheld the exception on this basis.19
16 Relying on Capitec Bank v Coral Lagoon (1) SA 100 (SCA) para 26.
16 Relying on Capitec Bank v Coral Lagoon (1) SA 100 (SCA) para 26.
17 Makate v Vodacom Ltd 2016 (4) SA 121 (CC) para 97; Shepherd Real Estate Investments (Pty) Ltd v Roux Le
Roux Motors CC (1318/2018) [2019] ZASCA 178 paras 10–18.
18 Van Zyl v Government of RSA 2008 (3) SA 294 (SCA) para 75, where the court said “[a] promise to contract is
not a contract”.
19 KPMG Services SA Limited v Betapoint Management Consultant (Pty) Ltd [2024] ZAGPJHC 57 para 39:“I now
consider whether the first ground of exception is bad in law or vague and embarrassing to KPMG. I was referred
to clause 7 the JAL which spells out the mechanism on cost savings and transactions value determination by
Betapoint and the process to be embarked upon for invoicing purposes. I have checked the particulars of claim in
relation to what has been pleaded in so far as this aspect is concerned, I find nowhere in the pleading is reference
made about such processes having been followed. In the result, I am in agreement with KPMG on this point. It
should be remembered that contracts are concluded fr eely by the parties concerned and unless they are
fundamentally contra bonos mores, they should be enforced. In the instant case, there is no suggestion that clause
7 does not find application, but simply, as submitted on behalf of Betapoint, that although it has not been pleaded,
it should be accepted that the negotiations prior to inv oicing failed to yield positive results. I disagree with this
submission, and consequently am of the view that unless the pleading is amended to deal with the necessary
averment, KPMG will be embarrassed.”
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[24] As to the other clauses in the contract, KPMG submits that clause 6 (the good
faith negotiation clause) means there is no binding entitlement to any changed
assumptions, as the obligation to pay arises only after agreement and a proper invoice
are reached under clause 7. Similarly, KPMG maintains that the effect of clause 8
(payment on termination) is limited by clause 7: unless the parties first agree on values,
no fee is “incurred,” and nothing is due, even upon termination.
Analysis
[25] Accepting, for purposes of the exception, that the facts pleaded are true, clause
7 of the JAL, read in the context of the agreement, cannot be said unequivocally to
amount to an unenforceable agreement to agree. The parties themselves present
directly opposing yet plausible interpretations. KPMG maintains that clause 7 requires
a further agreement on cost savings or transaction value as a precondition for any fee
entitlement, whereas Betapoint contends that the fee formula and dispute-resolution
process together provide an objectively ascertainable standard of calculating fees,
along with a deadlock mechanism in case of disagreement. The existence of such
competing interpretations is itself evidence of ambiguity. Whether the interpretation
advanced by either party ultimately prevails, and whether the clause is enforceable
considering the parties’ conduct and the surrounding circumstances, are matters that
cannot be resolved on exception and are best determined at trial. It is not for this court
to close that door.
[26] Applying a contextual and businesslike reading of the contract, including
clauses 6 and 8, further demonstrates why it is inappropriate to determine the proper
understanding of clause 7 in exception hearings. Betapoint’s interpretation of clause
6, that it presupposes determinable, objectively calculable fees for work performed
under defined assumptions and provides only for renegotiation if the underlying
under defined assumptions and provides only for renegotiation if the underlying
assumptions are not met , is plausible. Similarly, clause 8 confirms that, upon
termination, KPMG must pay Betapoint's fees and expenses incurred up to that date,
which possibly presupposes that the fees are objectively calculable, even if the
contract ends before full completion. The same applies to the other provisions. In
short: the structure and operation of these provisions, assuming the pleaded facts are
true, revolve around the idea that fees are objectively determinable. Especially when
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considering that, in line with case law, 20 a sensible, commercial interpretation seeks
to uphold the bargain and prevent one party from unilaterally frustrating contractual
entitlements by withholding agreement; overall, the contract does not appear to be an
unequivocal and unenforceable agreement to agree.
[27] A further critical consideration is that the exception to the main claim does not
serve the object of the exception procedure, which is to avoid unnecessary evidence.
21
Betapoint has pleaded two alternative claims, one based on implied or tacit terms of
the JAL, and another based on the development of the common law. Both alternative
claims rest on the same factual foundation as the main claim. Accordingly, upholding
the exception to the main claim would not dispose of the litigation or eliminate the need
for trial evidence on the core facts, Betapoint's performance, the cost savings
achieved, and the parties' understanding of the fee structure. At trial, evidence
regarding context, commercial practice, post-contractual conduct, and the parties'
understanding and intention will be admissible and may well clarify and resolve any
ambiguity in clause 7. Resolving the matter on exception, where such evidence might
change the interpretive outcome, would be premature and inconsistent with the
purposes of an exception procedure.
[28] Additionally, section 11(f) of the Business Terms provides a severance clause:
if any provision is determined to be illegal or unenforceable, that term shall be severed
and deemed not to form part of the agreement, while all other terms and provisions
remain in full force and effect. This clause indicates the parties' intention to preserve
the remainder of the contract even if a particular provision fails. Should the invoicing
provision in clause 7 ultimately be found void for vagueness, severance would operate
to sever that provision while preserving the fee formula and the rest of the JAL.
to sever that provision while preserving the fee formula and the rest of the JAL.
Whether severance applies, and its effect on the substance of the bargain, is best
determined at trial in the light of full evidence regarding the parties' substantial
intention.
20 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13 para 26.
21 Dharumpal Transport (Pty) Ltd v Dharumpal 1956 (1) SA 700 (A) at 706.
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Conclusion
[29] For all these reasons, the exception must fail. The particulars of claim disclose
a cause of action, at a minimum, on one reasonable interpretation of the JAL. The
interpretation of clause 7, read contextually within the agreement as a whole, cannot
be resolved on exception. Dismissing the exception does not obviate the need for
evidence; it merely allows the parties to proceed and have the matter properly
ventilated before the trial court. On the facts pleaded and principles expounded, the
claim discloses a cause of action, and the exception ought to have been dismissed.
[30] The order of the High Court upholding the exception and striking out the
particulars of claim should be set aside. Costs are to follow the result.
[31] The parties asked for costs for two counsel, on scale C. Given the scale of the
matter, the value of the relief sought, and the complexity of the contractual
interpretation submissions advanced, such a scale is justified, and an order for costs
of two counsel is appropriate.
Order
[32] The following order is made:
1. The appeal is upheld.
2. The court a quo’s order is substituted with the following order:
a. The exception on the first ground is dismissed.
b. The defendant is to pay the costs of the exception, including
the costs of two counsel.
c. The respondent is to pay the costs of the appeal, including the
costs of two counsel on scale C.
_____________
WJ du Plessis
Judge of the High Court
Gauteng Division,
Johannesburg
Date of hearing:
15 October 2025
Date of judgment:
14 November 2025
For the appellant:
G Marcus SC and D Watson instructed by
Harris Nupen Molebatsi Attorneys
For the respondent:
Myburgh SC and D Linde instructed by
Bowman Gilfillan