IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: 22182/2024
In the matter between:
UPTOWN TRADING 803 (PTY) LTD
t/a WATERLOO PLUMBING PLAINTIFF
and
CHRIS STUMKE QUANTITY SURVEYING
(PTY) LTD FIRST DEFENDANT
TYRIS CONSTRUCTION (PTY) LTD SECOND DEFENDANT
Coram: Morrissey AJ
Heard: 20 August 2025
Delivered: 27 November 2025
ORDER
The first defendant’s exceptions are dismissed with costs, such costs to
include the costs of counsel on scale C.
JUDGMENT
MORRISSEY AJ:
[1] This matter concerns seven exceptions the first defendant (“the QS”)
has raised in respect of the plaintiff’s particulars of claim.
[2] Those particulars of claim allege that the plaintiff concluded a sub -
contract with the second defendant (“ the Contractor”) to undertake
plumbing work at a construction project for a certain fee . The sub-
contract contained a term that made the Contractor’s obligation to pay
the plaintiff conditional upon it receiving payment from its employer
(“the Employer”) under the principal building contract . The plaintiff
described that as a “pay when paid clause”. I adopt that description in
this judgment.
[3] The particulars of claim go on to allege that at the time of concluding
the sub-contract the defendants were aware that the Employer had not
made any payments to the Contractor for several months ; that there
were significant financial difficulties and risks associated with the
construction project ; and that it was highly likely that the plaintiff
would not be paid. I will refer to those facts collectively as “ the
financial issues ”. The plaintiff says that, to the knowledge of the
defendants, it was not and could not have been aware of the financial
issues and that it concluded the sub-contract in ignorance of them. It
says the pay when paid clause was inserted with the intention of
“shielding” the defendants from the likely non-payment by the
Employer.
[4] While the QS is not a party to the sub-contract, it is alleged that it was
prepared on its instructions “… acting on behalf of both [ the
Employer] and [the Contractor ]”. The plaintiff alleges that the
Contractor and the QS, being the main contractor and the quantity
surveyor for the construction project respectively, were obliged to
disclose to the plaintiff the “special knowledge” they had concerning
the financial issues prior to the sub -contract being concluded . The
plaintiff says that the defendants’ non -compliance with their
disclosure obligations caused it to suffer damages representing the
value of the work it did under the sub-contract and for which it has not
been paid, a sum of approximately R1.4 million.
[5] There was consensus between the parties regarding the approach to be
adopted at the exception stage. They accepted that I am required to
approach the matter on the basis that the allegations in the particulars
of claim will be established at the trial and that I must construe them
benevolently, in the sense that they must be excipiable on every
reasonable interpretation that can be attributed to them before an
exception will be upheld.1
[6] Insofar as the QS excepted on the basis that the particulars were vague
and embarrassing (all exceptions were advanced on the basis that the
particulars of claim failed to disclose a cause of action or were vague
and embarrassing), the vagary must be such that the QS was seriously
prejudiced, in the sense that it was left guessing as to the case it had to
meet.2
The first six exceptions
[7] I consider that the first six exceptions can be disposed of in relatively
short order.
[8] The first exception was that only a portion of the sub -contract was
attached to the particulars of claim. I do not consider that was a basis
to except to a delictual claim based on a pre -contractual non -
disclosure, as opposed to a claim based on the contract it is alleged to
have induced.
[9] In my view it was adequate for the plaintiff to allege that the contract
contained the pay when paid clause and to attach the relevant portion
of the agreement where it appeared. I mention that the plaintiff did in
1 Livings Hands (Pty) Ltd and Another v Ditz and Others 2013 (3) SA 368 (GSJ) at [15].
2 Trope v South African Reserve Bank and Another 1992 (3) SA 208 (T) at 211B-E.
fact attach the entire agreement , and the objection by the QS was that
it did not attach a copy of another document that it incorporated by
reference.
[10] The second exception is that there is no allegation in the particulars of
claim that the Contractor has not been paid by the plaintiff. The
reference to the plaintiff is obviously intended to be a reference to the
Employer. The point the QS advances is that if the Employer has paid
the Contractor, then the existence of the pay when paid clause has no
causal connection to the plaintiff’s loss , and it must simply sue the
Contractor to perform under the sub-contract.
[11] It is so that there is no express allegation that the Contractor has
resisted paying the plaintiff on reliance on the pay when paid clause,
as opposed to some other reason. The plaintiff does however allege
that the Employer is in such serious financial straits that there is no
prospect of it being paid by the Contractor. Reading the particulars of
claim as a whole, I think it is sufficiently clear for purposes of
considering the exceptions that the plaintiff is contending that : (i) it
would not have agreed to the pay when paid clause had the finan cial
issues been disclosed to it; and (ii) the Contractor has not been paid by
the Employer, and is relying on the pay when paid clause not to pay
the plaintiff.
[12] The third exception is a denial of the QS’s involvement in the drafting
of the sub-contract, in particular, the pay when paid clause. The point
advanced is that there was thus no causal connection between any
non-disclosure by the QS and the existence of the pay when paid
clause.
[13] I also do not consider that that exception can be sustained. In my
view, the particulars of claim are sufficiently widely worded to
advance a case that the non-disclosure of material information by the
QS resulted in the plaintiff agreeing to the pay when paid clause,
something it would not have done had the relevant disclosure been
made. It thus matters not whether the QS was involved in the drafting
or negotiation of the sub -contract, or the pay when paid clause. The
material allegation is the non-disclosure of the financial issues.
[14] In any event, the plaintiff expressly avers that the defendants inserted
the pay when paid clause into the sub -contract. I must accept that
assertion for the purposes of determining the exception. If the QS
wishes to challenge it, it may do so in it s plea and then by leading
evidence to that effect at the trial.
[15] The fourth exception is that the sub -contract contains a no -
representations clause. The point advanced is that the plaintiff is
precluded by that clause from setting up a case based on negligent
misrepresentations.
[16] The difficulty I have with that exception is twofold. First, the QS was
not a party to the sub-contract, and I thus consider it is precluded from
relying on its terms to resist the claim pursued against it. Secondly,
the pl aintiff advances claims in both fraud and negligence. Even if
the claim in negligence could be excepted to, in my view doing so
would not serve to substantially curtail the proceedings , that being the
principal practical purpose of exception proceedings.3
[17] The fifth exception is that the plaintiff has not pleaded that it complied
with certain obligations that were a precondition to it receiving any
payment under the sub-contract. Those requirements included matters
such as furnishing tax clearance certificates, confirmation of banking
details and the like. In a se nse this exception is similar to the second
exception, in that it contends that the plaintiff has not ruled out
reasons for its non-payment other than the pay when paid clause.
[18] While the particulars of claim could have been more clearly drafted to
make it plain that the only reason the plaintiff had not been paid wa s
because the Contractor was able to rely on the pay when paid clause, I
think that is sufficiently clear from the pleading as a whole to resist a
challenge at the exception stage.
[19] The sixth exception is like the fourth in that it relies on a clause in th e
sub-contract, namely, an arbitration clause.
[20] In my view that exception is misplaced for the same reason as the
fourth exception: While the Contractor might be able to rely on it as a
party to the sub-contract, the QS is not. I would also add that because
resistance to a claim based on an arbitration clause involves an
allegation of material additional to that appearing in the particulars of
3 Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA 2006 (1) SA 461
(SCA) at [3].
claim, such an objection should properly be raised by way of a special
plea, not an exception.
[21] For these reasons the first six exceptions must be dismissed.
The seventh exception
[22] The seventh exception was raised subsequently to the first six . It
advances the objection that the particulars of claim do not establish a
cause of action against the QS because the non -disclosure that the
plaintiff says caused its loss was not wrongful. Stated differently, the
QS says that it was under no legal obligation to disclose the financial
issues to the plaintiff and that it is thus not liable to the plaintiff fo r
any loss it may have suffered resulting from that non -disclosure. I
turn now to a consideration of that issue.
[23] The plaintiff seeks delictual damages for pure economic loss caused
by an omission (in this case, a failure to speak). Causing another pure
economic loss (that is loss other than harm to a plaintiff’s person or
patrimony) is not prima facie wrongful.4 Nor is harm caused by an
omission.5 In order for the plaintiff to succeed with its claim it will
need to establish facts suppor ting the conclusion of wrongfulness it
alleges.
[24] At its highest level, wrongfulness will be present when the legal
convictions of the community conclude that it is reasonable for certain
4 Cape Empowerment Trust v Fisher Hoffman Sithole 2013 (5) SA 183 (SCA) at [21].
5 Minister of Law and Order v Kadir 1995 (1) SA 303 (AD) at 317C-F.
acts or omissions to be visited with a legally enforceable award of
damages.6
[25] What the legal convictions of the community require in a given case is
often contentious. As stated, positive conduct that causes damage to
the patrimony of another is prima facie wrongful. All that means is
that, on the face of it, the legal convictions of the community consider
that such conduct is wrongful and that the harm -causing party should
compensate the harmed party.
[26] Such a prima facie conclusion on wrongfulness is capable of being
rebutted. For example, the defendant may have acted with the consent
of the owner of the damaged property, or in circumstances that
necessitated the damage. Permitting those reasons to excuse the
harm-causing party from compensating the injured party is because
the legal convictions of the community consider that no remedy
should lie in those circumstances.
[27] Questions of wrongfulness are thus an expression of legal policy .
Given the scope, complexity and richness of human interaction ,
questions of wro ngfulness may be fraught with difficulty. What is
important is that wrongfulness is not the same as morality; and that its
determination must be founded on identifiable factors that accord with
constitutional norms, as opposed to a n arbitrary or purely em otive
response to the facts of a given case.7
6 ZA v Smith 2015 (3) SA 574 (SCA) at [15]-[16].
7 Trustees, Two Oceans Aquarium Trust v Kantey & Templer (Pty) Ltd 2006 (3) SA 138 (SCA) at [12].
[28] Whether there is a duty to speak in a pre -contractual setting is a
situation that often involves difficult questions of wrongfulness. In
my view, much of that difficulty arises because of the competing
policy considerations relevant to the wrongfulness enquiry that tend to
arise in such cases.
[29] On the one hand there is the fact that parties to a contractual
negotiation are often in a form of a contest. In such a case, each party
is trying to secure the best possible outcome for themselves, even if
doing so is at the expense of the other . Neither party expects any
assistance from the other, and will typically receive even positive
representations from the other side with a healthy dose of cynicism.
Whatever one may think of negotiating in that way from a moral
perspective, it is an accepted commercial reality . In my view it is a
factor militating against a duty to speak. Indeed, it is a factor that may
justify parties intentionally withholding material information from
each other.
[30] On the other hand, not every negotiation is a zero-sum game. It may
be that the re is some pre -existing relationship between the parties or
other cir cumstances present that creates a reasonable or legally
justifiable belief that they are co-operating to conclude a fair deal. In
such a case one party might be required to disclose facts to the other,
even if they are adverse to its negotiating position.8
[31] Determining into which of the above two scenarios a particular case
falls may be a di fficult exercise. Even hostile negotiations can be
8 Hulett and Others v Hulett 1992 (4) SA 291 (AD) at 311D-E;
conducted in a civil manner, and that civility may create an
impression that the parties contemplated a fair deal situation as
opposed to a zero -sum game. Or it may emerge that the negotiation
falls somewhere between those extremes, which may have an impact
on what the parties could justifiably expect from each other by way of
disclosure. It might also emerge that the parties were not on the same
page, with one considering they were negotiating selfless ly and the
other considering they were negotiating selfishly, which would in turn
require a determination on which position was more acceptable in the
circumstances and based on the evidence available.
[32] What is important for present purposes is that issues such as the nature
of the negotiation and the relationship(s) between parties have a
bearing on whether a pre-contractual non-disclosure is wrongful.
[33] The fact that one party is aware of material facts that the counterparty
cannot access may also be a relevant factor in the wrongfulness
enquiry.9 This policy consideration may to some extent be a
reflection of those underlying the common law principles regarding
latent defects in contracts of sale.
[34] Very generally speaking, and without more , a seller must disclose
latent defects and may not conceal patent ones with a view to
concluding a sale. Part of the rationale underlying those principles
may be that a seller is expected to have a far more detailed knowledge
of the merx and its defects than a potential purchaser, and is thus
9 Absa Bank Ltd v Fouche 2003 (1) SA 176 (SCA) at [5].
precluded from exploiting the latter’s justifiable ignorance of those
defects.
[35] That consideration must be contrasted with the general principle that a
purchaser is not required to disclose latent attributes they are aware of
in the object of the sale , even if they know the seller is ignorant of
them.10 That may be permitted because a windfall for a buyer due to
latent attributes is different from a loss caused by latent defects. 11 Or
it may be that economic loss caused by a seller’s ignorance of laten t
attributes does not justify a remedy at law because, as owner, they are
assumed to know the merx better than anyone else.
[36] There are a number of reported cases that consider the question of a
duty to speak in pre -contractual negotiations. Two that I have found
to be particularly helpful in this case and that were referred to by both
parties during argument are Absa Bank Limited v Fouche 12 and
McCann v Goodall Group Operations (Pty) Ltd .13 I can do no better
than to repeat the relevant dicta here.
[37] Per Absa (citations omitted):14
“The policy considerations appertaining to the unlawfulness
of a failure to speak in a contractual context - a non -
disclosure - have been synthesised into a general test for
liability. The test takes account of the fact that it is not the
norm that one contr acting party need tell the other all he
10 Meskin v Anglo-American Corporation of SA Ltd 1968 (4) SA 793 (W) at 796D-E; Speight v Glass &
Another 1961 (1) SA 778 (D&CLD) at 781H-782E; Josephi v Parks 1906 EDC 138 at 141.
11 As suggested in Christie’s Law of Contract in South Africa (8th ed) at 339.
12 Supra.
13 1995 (2) SA 718 (C).
14 Supra at [5].
knows about anything that may be material. That accords
with the general rule that where conduct takes the form of an
omission, such conduct is prima facie lawful. A party is
expected to speak when the information he has to impart falls
within his exclusive knowledge (so that in a practical
business sense the other party has him as his only source)
and the information, moreover, is such that the right to have
it communicated to him 'would be mutually recognised by
honest men in the circumstances'”
[38] Per McCann:15
From the aforegoing exposition of the law the following
principles emerge:
(a) A negligent misrepresentation may give rise to
delictual liability and to a claim for damages,
provided the prerequisites for such liability are
complied with.
(b) A negligent misrepresentation may be constituted by
an omission, provided the defendant breaches a legal
duty, established by policy considerations, to act
positively in order to prevent the plaintiff's suffering
loss.
(c) A negligent misrepresentation by way of an omission
may occur in the form of a non -disclosure where
there is a legal duty on the defendant to disclose some
or other material fact to the plainti ff and he fails to
do so.
(d) Silence or inaction as such cannot constitute a
misrepresentation of any kind unless there is a duty to
speak or act as aforesaid.
Examples of a duty of this nature include the following:
15 Supra at 726A-G.
(i) A duty to disclose a material fact arises when the fact
in question falls within the exclusive knowledge of the
defendant and the plaintiff relies on the frank
disclosure thereof in accordance with the legal
convictions of the community.
(ii) Such duty l ikewise arises if the defendant has
knowledge of certain unusual characteristics relating
to or circumstances surrounding the transaction in
question and policy considerations require that the
plaintiff be apprised thereof.
(iii) Similarly there is a duty to make a full disclosure if
a previous statement or representation of the
defendant constitutes an incomplete or vague
disclosure which requires to be supplemented or
elucidated.
These examples cannot be regarded as a numerus clausus of
the occurrence o f a duty to disclose, as may possibly be
inferred from the authorities mentioned above. There may be
any number of similar factual situations which could give
rise to such duty.”
[39] As helpful as they are in identifying factors that may point to a failure
to speak being wrongful , those dicta make it clear that those factors
alone are not conclusive of the enquiry.
[40] In Absa the Supreme Court of Appeal stressed that in addition to one
party having exclusive knowledge of material facts, a duty to speak
would also need to be “… mutually recognised by honest men in the
circumstances”. In my respectful view, this is a reference t o the
wrongfulness enquiry.
[41] Similarly, in McCann the Court identified “exclusive knowledge” and
“knowledge of unusual circumstances and characteristics ” as factors
that might suggest wrongfulness, but also indicated that wrongfulness
would only be present if “the legal convictions of the community ” or
“policy considerations ” demanded disclosure of the knowledge in
question.
[42] I make these observations not as a criticism but because they confirm
my view that the existence of a duty to speak in a pre -contractual
setting may often turn on a fine analysis of the evidence of the
particular case, including the nature of the negotiations , the nature of
the contract being negotiated , the information available (and
unavailable) to the parties , and the relationship s between them (and
possibly others).
[43] Turning to the case at hand, it is clear that the drafter of the particulars
of claim was aware that the non-disclosure relied on was not prima
facie wrongful, and that it was necessary to plead facts indicative of
policy reasons that would support a finding of wrongfulness.
[44] To illustrate this I set out what is pleaded in paragraphs 9 and 10 of
the particulars of claim:
“9. The Plaintiff avers that:
9.1. The Defendants knew, or ought reasonably to
have known, that the Plaintiff had no
independent means of ascertaining the financial
status of the Project of the payment issues with…
[the Employer].
9.2. The information regarding the Project’s
financial difficulties and the non -payment by …
[the Employer] was exclusively within the
knowledge of the Defendants and/or … [the
Employer].
9.3. The plaintiff, as a subcontractor, had no direct
contractual relationship with … [the Employer]
and therefore no access to information about its
financial status or payment history.
9.4. The Defendant’s knew, or ought reasonably to
have known, that the Plaintiff would rely on the
implied representation that the Project was
financially sound and that payments would be
made in the ordinary course of business.
9.5. The Defendants, by virtue of their positions as
Quantity Surveyors and Main Contractor
respectively, had special knowledge of the
Project’s financial status and payment issues.
9.6. The Defendants knew, or ought reasonably to
have known, that the information regarding the
payment issues was material to the Plaintiff’s
decision to enter into the Agreement and to
commence work on the Project.
10. In light of the above, the Defendants were under a legal
and ethical duty to disclose to the plaintiff:
10.1. The fact that …[the Employer] had not made
any payments to the Second Defendant since
February 2023;
10.2. The significant financial difficulties and risks
associated with the Project;
10.3. The high likelihood that the Plaintiff would not
receive timely payment, if at all, for work
performed on the Project.
[45] It is manifest from the quoted text that heavy reliance is placed on the
alleged exclusive knowledge the defendants had of facts material to
the plaintiff’s decision to agree to the pay when paid clause, and the
plaintiff’s inability to access that information. That is a factor tending
towards wrongfulness, as identified in Fouche and McCann (I
consider the reference to the “ ethical duty ” in paragraph 10 to be
mistaken, on the basis that any such duty is at best indirectly relevant
to the wrongfulness enquiry).
[46] A benevolent reading of the cited passages also reveals that another
factor is re lied upon. I n paragraph 9.4 it is alleged that there was an
implied representation that the construction project was financially
sound, and in paragraphs 9.3 and 9.5 reliance is placed on the roles the
parties occupied in respect of the construction project (subcontractor,
main contractor and quantity surveyor).
[47] It is not entirely clear to me what the “ implied representation ” in
paragraph 9.4 refers to , but I consider that on a reasonable
interpretaiotn of the particulars of claim it is a reference to sub-
contract offered to the plaintiff.
[48] What the plaintiff is thus saying, albeit in a roundabout way, is that
the relationship between the parties as potential sub-contractor, main
contractor and quantity surveyor was such that if the defendants knew
that the construction project was not financially sound , they were
obliged to notify the plaintiff of that fact, and that their the failure to
do so amounted to a tacit representation as to its financial soundness.
[49] Mr De Wet, who appeared for the QS, resisted the existence of such a
duty of disclosure and implied representation. He submitted that there
was no relationship between the QS and the plaintiff and that the QS
assumed no responsibility for the plaintiff’s affairs. He also pointed
out that the QS was an agent of the Employer, and in that fiduciary
position it would not be inclined to disclose information to the
plaintiff about the Employer’s financial means.
[50] In my view, t hose submissions have merit in the consideration of the
wrongfulness enquiry. Fundamentally, the plaintiff’s case is that the
QS was legally obliged to furnish it with information that would assist
it in its negotiation of the sub -contract with the Contractor, in
particular, regarding its decision to agree to the pay when paid clause.
[51] Absent some form of relationship obliging the QS to advise the
plaintiff, it may well be that its alleged non-disclosure was not
wrongful. That would be all the more so if, as the plaintiff avers, the
sub-contract was prepared on the QS’s instructions on behalf of the
Contractor and Employer.
[52] As the plaintiff has expressly pleaded, the pay when paid clause was
to the Contractor’s benefit. If the QS was acting on the Contractor’s
behalf, it would be unusual for it to be required to make disclosures to
the plaintiff that would prejudice the Contractor’s negotiating
position. A finding that there was a n obligation on the QS to disclose
the financial issues in those circumstances could place the QS in a
conflict of interest situation . In my view, such an unusual
consequence militate s against a finding of wrongfulness unless it
could also be shown that t he Contractor was obliged to make the
relevant disclosure and that the QS could be expected to have been
aware of that obligation.
[53] Another consideration supporting an absence of wrongfulness is that
even if the plaintiff did not know about the Contractor’s financial
situation, it knew that was something it was ignorant of. Being in that
position the plaintiff could have protected itself from the “ known
unknown” by either seeking the removal of the pay when paid clause,
the inclusion of some other stipulation to protect itself, or by declining
to contract.16 I should mention that there is nothing in the particulars
of claim to suggest that the plaintiff was unaware of the pay when
paid clause when concluding the sub -contract, or that it had no real
option but to conclude it.
[54] On the other hand, and as I understood Mr Tredoux to argue on behalf
of the plaintiff, both the relationship between the QS and the plaintiff
and the role the QS played in the negotiation served to encumber it
with the duty of disclosure alleged. Mr Tredoux also emphasised the
plaintiff’s allegation that the defendants were in possession of
material information that they knew the plaintiff did not have and
could not access.
[55] Although neither of the parties referred me to any cases on the issue, it
seems to me that as a matter of principle that the relationships
between parties to a construction project may be relevant to questions
16 Compare Cape Empowerment Trust, supra at [28].
of wrongfulness regarding delictual claims advanced between them ,
be it in respect of pre-contractual non-disclosures or other omissions.
[56] For example, i t may well be that on facts of a given case the parties
involved in a construction project justifiably considered each other to
be teammates working towards a common goal and who would look
out for each other when working on the project . The existence and
scope of the support that could be expected would depend on the
unique facts of the case: In one project it might be that team members
worked entirely independently and it was accepted that each of them
was solely responsible for the tasks allocated to them. On another
project (or part of it) it might be the case that there was a more
collaborative approach, and an expectation that mistakes spotted by
one team member would be communicated to the person responsible
for them . To succeed with a claim would of course require all the
other elements of a delictual claim to be established.
[57] In pursuing the seventh exception the QS asks me to resolve the issue
of the wrongfulness of its conduct at this stage of the proceedings.
The argument was essentially presented on the basis that the factors
against a finding of wrongfulness outweigh those relied o n by the
plaintiff in favour of it.
[58] While it is so that in some cases wrongfulness can be determined in
anticipation of a trial, 17 I do not consider this to be such a case. As
will be apparent from the preceding discussion, m y difficulty with the
seventh exception is that I do not consider that the factors relevant to
17 Telematrix, supra at [15]-[16].
the wrongfulness enquiry can be weighed without the benefit of any
evidence led at the trial.
[59] While the starting position is that the non -disclosure was not
wrongful, the plaintiff may be able to put up evidence establishing
that the circumstances of the negotiation or the relationship between
the QS were such that it could justifiably expect disclosure is says was
not made.
[60] I consider that this view is endorsed by the inconclusive way the
statements of law in Absa and McCann are made: Those Courts had
to beg the question of wrongfulness in the way I have explained above
because, when it comes to pre -contractual non -disclosures, the
outcome of a wrongfulness enq uiry will typically depend on the facta
probantia of the case in question.
[61] For those reasons the only material consideration at this stage is
whether the plaintiff has pleaded factors that might establish a finding
of wrongfulness on the part of the QS. I consider that it has done so
by relying on the following two factors:
a. The exclusive knowledge of the QS and the lack thereof on the
part of the plaintiff (as contemplated in Absa and McCann).
b. The relationships between the parties , including those between
the QS and the plaintiff and the QS and the employer.
[62] Whether those considerations will ultimately prevail in establishing
wrongfulness will depend on the evidence led at the trial, as
considered with any other evidence supporting factors against a
finding of wrongfulness. That cannot be decided at this stage, and for
that reason I consider that the seventh exception must thus also be
dismissed.
[63] As regards the question of costs, Mr De Wet submitted that if I were
minded to dismiss the exceptions it would be appropriate for costs of
the exception proceedings to stand over for later determination . I
asked Mr De Wet to prepare supplementary submissions on that
question, which he duly did. In those submissions he referred to a line
of cases that warn a defendant to except to a defective claim advanced
by a plaintiff, at the risk being mulcted in the costs of a trial if it does
not.
[64] Despite those submissions, and while I appreciate that the QS may yet
establish its wrongfulness challenge, I do not think that the costs of
these proceedings should be deferred to the trial court.
[65] I say so because I have found that the first six exceptions were bad
and that the seventh was pr emature, in the sense that I consider the
question of wrongfulness should properly be determined at the trial.
Permitting the costs of the exception to stand over in the face of those
findings would be to encourage the taking what might be referred to
as bona fide but debateable exceptions. While litigants are entitled to
raise such exceptions, where the debate is decided against them they
should ordinarily be required to cover the costs of the investigation.
That is different from the position where a defendant does not except
in a case where it is clearly appropriate to do so, the situation
contemplated in the line of cases Mr De Wet referred me to in his
supplementary submissions.
[66] Lest there be any uncertainty on the question, my impression was that
the exceptions raised by the QS were advanced in good faith . T he
costs order I have decided to make should not be seen to suggest
anything to the contrary.
[67] The legal issu es raised in the proceedings were relatively complex,
something reflected in the fact that both parties retained experienced
counsel. I thus consider that counsel’s fees should be determined on
scale C.
[68] In the circumstances there will be an Order dismissing the first
defendant’s exceptions with costs, such costs to include the costs of
counsel on scale C . As the second defendant did not participate in
these proceedings (it has filed a plea) , my order as to costs pertains
only to the plaintiff’s costs.
___________________
MORRISSEY AJ
Acting Judge of the High Court
APPEARANCES
Counsel for the Excipient: Adv H N De Wet
Instructed by: Ward Brink Attorneys.
Counsel for Plaintiff: Adv P Tredoux
Instructed by: Neville R Cohen & Associates.