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NO
NO
NO
NO
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2022-026713
In the exception between:-
DANIEL DINEZULU MPANDE 1st Excipient
COLIN LEVY 2nd Excipient
TRITON PHARMACEUTICALS 3rd Excipient
and
FARLAM CONSULTING SERVICES CC Respondent
In re
FARLAM CONSULTING SERVICES CC Plaintiff
and
DANIEL DINEZULU MPANDE 1st Defendant
COLIN LEVY 2nd Defendant
TRITON PHARMACEUTICALS 3rd Defendant
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November 2010 between the parties, and the dispute was referred to
arbitration in terms of an arbitration clause contained in the agreement.
[5] On 3 March 2018 the excipients secured an arbitration award against a
company named Triton Pharmacare (Pharmacare), of which the 1 st and
2nd excipients were the directors and shareholders at that time. The
arbitration award essentially ordered a statement and debatement of the
account and directed Pharmacare to pay to the plaintiff the outstanding
commissions due after the debatement of the account.
[6] Summons was issued during August 2022 and the defendant raised an
exception to the particulars of claim. The grounds of the exceptions can
be summarised as follows:
6.1. That the plaintiff has no claim for commissions against
Pharmacare, and by ex tension, any of the excipients, and the
excipient’s particulars of claim accordingly fails to disclose a cause
of action.
6.2. This premise is on the basis that the arbitration award ordered that
the claims had to be sent for debatement, which debatement was
never done. The excipients argue that the claim for damages is
therefore premature. Without debatement, so the argument of the
excipient goes, there is no cause of action.
[7] The plaintiff applied to make the arbitration award an order of Court.
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Pharmacare (under the control of the 1 st and 2 nd defendants)
simultaneously sought to review the arbitration award. On 18 March
2020 this Court dismissed the review application, and made the
arbitration award an order of Court
[8] The plaintiff pleads that, after the arbitration award has been handed
down and during September 2018, the 1st and 2nd defendants purchased
the entire issued share capital in the 3 rd defendant Triton
Pharmaceuticals (Pty) Ltd Consultancies (then incorporated as
Juscrolex Nutrition). The 1 st and 2 nd defendants were appointed as
directors of the 3rd defendant.
[9] The plaintiff pleads that, by the beginning of 2021, the 1 st and 2 nd
defendants had diverted all of Pharmacare's business (including its
customers and debtors' book) to the 3 rd defendant. As a result of the
aforesaid diversion, Pharmacare became factually and commercially
insolvent and was unable to pay its debts as and when they fell due.
[10] The plaintiff further pleads that on 18 February 2021, and unbeknown to
the plaintiff, the 1st and 2nd defendants, as the members of Pharmacare,
passed a special resolution placing Pharmacare into voluntary winding -
up.
[11] The excipient argues the wording of the arbitration award in relation to
any commission that could be due, could only fall due after the debit of
the account occurred after debatement of the sales figures and payment
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of commission.
[12] Put differently, the excipient says that there is no cause of action as there
is no amount that the defendant is due to pay to the plaintiff in t he
absence of the arbitration award having been debated.
[13] The plaintiff pleads that the 1 st and 2nd defendants' conduct as set out
above in paragraphs [8], [9] and [10]:
13.1. Constitutes a breach of their fiduciary duties to Pharmacare in
terms of sections 76 and 77 of the Companies Act 71 of 2008 (the
2008 Companies Act).
13.2. Constitutes a contravention of section 22(1) of the 2008 Companies
Act in that the 1st and 2nd defendants fraudulently, recklessly or with
gross negligence, operated Pharmacare's business.
13.3. Renders the 1st and 2nd defendants liable in terms of section 218(2)
of the 2008 Companies Act for the loss and/or damages suffered
by the plaintiff as a result of the contravention of sections 22(1), 76,
and 77 of the Companies Act 2008.
13.4. Renders the 1st and 2nd defendants liable to the plaintiff in terms of
section 424 of the Companies Act 61 of 1973 (the "1973
Companies Act").
[14] Put differently, the plaintiff argues that the claim is not only the amount
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due in terms of the arbitration award, but also u pon rights flowing from
the arbitration award, as it stands and has been made an order of court.
The plaintiff pleads that the fraudulent, negligent or grossly negligent
conduct of the 1st and 2nd defendant caused damages to the plaintiff.
Legal principles
[15] Rule 23 of the Uniform Rules of Court deals with exceptions and reads
as follows:
“(1) Where any pleading is vague and embarrassing, or lacks
averments which are necessary to sustain an action or defence,
as the case may be, the opposing party may, within the period
allowed for filing any subsequent pleading, deliver an exception
thereto and may apply to the registrar to set it down for hearing
within 15 days after the delivery of such exception…”
[16] The test on exception is whether on all possible readings of the facts, no
cause of action is made out. This principle was made clear by Gorven J
in Astral Operations Lid v Nambitha Distributors (Ply) Ltd: Astral
Operations Lid v O'Farrell NO and Others (2013) 4 All SA 598 (KZD)
wherein the Court held that:
"Since this is an exception, the plaintiff must persuade me that,
on every interpretation which the counterclaim can reasonably
bear, no cause of action is disclosed. I am to take as true the
averments pleaded by the defendant and to assess whether they
disclose a cause of action.”
[17] In Standard Bank of SA Ltd v Hunkydory Investments 194 (Pty) Ltd (1)
2010 (1) SA 627 (C) at 630 paragraph 9 it is confirmed as follows that an
over technical approach should not be applied in the test for an
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exception:
“[9] It is trite law that an overly technical approach by the court
with regard to exceptions and irregular procedure should be
avoided. The court does not look too critically at a pleading.
[10] Whether a pleading is vague and embarrassing on the
ground of lack of particularity depends on whether it complies with
the provisions of the relevant rules of the Uniform Rules of Court.
Prejudice to a litigant faced with an embarrassing pleading lies
ultimately in an inability to prepare properly to meet an opponent's
case.”
[18] In Merb (Pty) Ltd v Matthews Unreported, GJ case no 2020/15069 dated
16 November 2021 clear guidelines are given by Maier -Frawley J to
distinguish whether a plea sustains a cause of action, including the
following:
“12. Where an exception is raised on the ground that a pleading
lacks averments necessary to sustain a cause of action, the
excipient is required to show that upon every interpretation that
the pleading in question can reasonably bear, no cause of action
is disclosed. It is trite that when pleading a cause of action, the
pleading must contain every fact which would be necessary for
the plaintiff to prove, if traversed, in order to support his right to
judgment (facta probanda). The facta probanda necessary for a
complete and properly pleaded cause of action importantly does
not comprise every piece of evidence which is necessary to prove
each fact (being the facta probantia) but every fact which is
necessary to be proved.”
[19] In the matter in casu it is necessary to draw the distinction between facta
probanda and facta probantia. Facta probanda is the facts on which the
claim is based. In my view, exceptions can be raised against the facta
probanda in that it is: (a) it is so vague and embarrassing that the other
party does not know what case to plead to, and (b) no cause of action is
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disclosed and proceeding to trial would be a waste of time and money.
In contrast, f acta probantia is the evidence that support the facts on
which the claim is based, thus the facta probantia.
[20] In this e xception details are given which, in my view, amounts to
evidence, which essentially is the defence to the claim and should be
pleaded in answer to the cause of action. Evidence that is going to be
given in answer to the particulars of claim ( facta proban tia), is not a
ground for exception, but a defence that should be pleaded. The mere
fact that the excipient responds with detailed allegations, supports the
inference that the excipient is fully aware of the factual position and what
the cause of action is.
[21] Whilst evidence is not to be pleaded, the pleading as set out in the
exception is a sufficient and the detailed defence to the particulars of
claim and should, in my view, be contained in a plea, not exception.
Analysis
[22] On my understanding, the plaintiff’s claim that the conduct of the 1st and
2nd defendant acted fraudulent, negligent or grossly negligent, is that
they were the directors of Pharmacare, entered into an agreement with
the plaintiff and then, unbeknowns to the plaintiff, transferred the assets
of Pharmacare to Triton Pharmaceuticals (Pty) Ltd Consulting (the 3 rd
defendant) whilst voluntarily liquidating Pharmacare.
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[23] When the plaintiff was successful in the arbitration award against
Pharmacare, the plaintiff was essentially left with an “empty” arbitration
award due to the liquidation. The plaintiff claims that the defendants
acted deliberately and in contrast with the 1 st and 2 nd defendants’
fiduciary duties as directors of the 3rd defendant (and, by implication, that
of Pharmacare).
[24] The content of the 4 exceptions is, in my view, facta probantia. It sets
out what the defence to the plaintiff’s claim is.
[25] Should the arbitration award be debated, it would amount to debatement
against a liquidated close corporation.
Conclusion
[26] In application of the above legal principles, I find that the particulars of
claim does disclose a cause of action.
[27] The cause of action is two-fold:
27.1. That the plaintiff is owed money in terms of the arbitration award,
albeit obtained against Pharmacare and no t Triton
Pharmaceuticals (Pty) Ltd Consulting Services, on the basis that
the 1st and 2nd directors in both close corporations are the 1 st and
2nd directors.
27.2. That the actions of the 1st and 2nd directors caused damage to the
plaintiff by alleged fraudulent or negligent conduct in the liquidation
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DATE OF HEARING: 14 NOVEMBER 2025
DATE OF JUDGMENT: 17 NOVEMBER 2025
APPEARANCES
FOR THE EXCIPIENT: ADV Y ALLI
ATTORNEY FOR EXCIPIENT: HAJBEY BHYAT MAYET & STEIN INC
EMAIL ADDRESS: shaheen@jlaw.co.za
TEL: 011 431 1970 / 079 873 9160
EMAIL ADDRESS shaheen@jlaw.co.za
ATTORNEY FOR THE RESPONDENT: CORRESPONDENT WITHDRAWN
RESPONDENT DETAILS: FARLAM CONSULTING SERVICES CC
10 GRONDSPEG STREET
ATLASVILLE
BOKSBURG
EMAIL: farlamj70@gmail.com