IN THE HIGH COURT OF SOUTH AFRICA , MPUMALANGA DIVISION,
(MBOMBELA MAIN SEAT )
DELETE W HIC HE V ER IS N O T A PPLICA BLE
(1) REPOR TA BLE: NO
(2) O F INT ERE ST TO O TH ER JU DGES : NO
(3) RE VISED Y ES /NO
03 DE C EM BER 2025
DA TE
In the application between:
CAZ DRY ATTORNEYS
BAREND MARITZ DRY
and
SIG NA TURE
SHAMILA BRICKS (PTY) LTD
In Re:
SHAMILA BRICKS (PTY) LTD
and
CAZ DRY ATTORNEYS
BAREND MARITZ DRY
SHAMILA TRADING ENTERPRISES CC
C ase No.: 2889/2024
FIRST EXCIPIENT
SECOND EXCIPIENT
RESPONDENT
PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
THIRD DEFENDANT
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______________________________________________________________
JUDGMENT
______________________________________________________________
FOURIE AJ
INTRODUCTION:
[1] The matter at hand concerns an exception brought by the First, Second, and
Third Defendants to the Plaintiff’s Particulars of Claim.
[2] The Notice of Exception forming the basis for the current adjudication follows a
previous Notice of Exception filed by the same Defendants , after which the
Plaintiff filed an amendment to their Particulars of Claim. The Excipients, not
being satisfied with the amendments made, bring the current exception.
[3] The complaint levied against the Particulars of Claim, is that it does not disclose
a cause of action against the First or Second Defendants and as such , the
Defendants seek the Plaintiff’s claim to be dismissed with costs.
[4] No relief is sought in the Particulars of Claim against the Third Defendant, and it
seems as if the Third Defendant was joined ex abundanti cautela as a party that
might have an interest in the outcome of the litigious process. Irrespective, it
seems as if the Third Defendant has defended the main action and has, together
with the First and Second Defendants, taken issue with the Particulars of Claim
for the same reason.
[5] After the initial address by Adv Du Plessis SC was made , wherein he indicated
that he represented the First and Second Excipients, and as Adv Ferreira SC
was to commence his argument on the part of the Respondent, Adv Du Plessis
SC indicated that he was informed that he is also representing the Third
Defendant. Although the late submissions by Adv Du Plessis SC might seem
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peculiar, nothing much turns on this point, save that the Third Excipient has not
abandoned cause even though no practical relief has been sought against them.
The submissions made in this regard on the part of the Excipients hold no real
or practical effect on the outcome of the application, as the submissions made
do not implicate the ultimate relief sought against the Third Excipient. Insofar as
the highwater mark for the Third Excipient’s case can be that they support the
fact that no valid cause of action is disclosed in the Plaintiff’s Particulars of Claim,
the same is noted, and I deal with such in this Judgment.
[6] The First Excipient is an attorney law firm , and the Second Excipient is an
attorney who is also the director of the First Excipient. The Respondent, the
Plaintiff in the main action, seeks in the main action a statement and debatement
of account which came into existence through a sale agreement concluded
between the Third Excipient, the First Excipient, and the Respondent.
[7] At the hearing of the matter, it was conceded that the Second Excipient was
properly before Court in his capacity as a director of the First Excipient in terms
of Section 19(3) of the Companies Act, 71 of 2008, as well as the relevant
provisions in terms of Section 34(7)(c) of the Legal Practice Act, 28 of 2014.
[8] It is an opportune time to state that the agreement of sale, which was annexed
as Annexure “A” to the Plaintiff’s Particulars of Claim, and the existence of which
is not being challenged by any of the parties at its heading states as follows:
“AGREEMENT OF SALE
Concluded between:
SHAMILA TRADING ENTERPRISES CC
(Registration Number: 2203/055257/23)
Represented by Shadow Tsakani Nyathi
Duly authorised thereto
(hereinafter referred to as “the Seller”)
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and
SHAMILA BRICKS (PTY) LTD
(Registration Number: 2021/770084/07)
Represented by Hethlan Loock
Duly authorised thereto
(hereinafter referred to as “the Purchaser)
and
CAZ DRY ATTORNEYS INC
(Registration Number: 2017/221924/21)
Represented herein by BAREND MARITZ DRY
Duly authorised thereto
(hereinafter referred to as “the Attorney”)
(Underlined own emphasis)
[9] On the face of the agreement, it appears to be a tri-party agreement. The contract
is signed by all three parties, and, on a prima facie basis, each party has certain
rights and obligations.
[10] During the argument, it was presented by the Excipients that Caz Dry Attorneys
was the attorney for the Third Excipient, the Seller, and not the Respondent, and
as such, no attorney -client relationship exists between the Attorney and the
Plaintiff.
[11] For purposes of the current application, it is not necessary for this Court to delve
into the existence, or not, of an attorney -client relationship between the First
and/or Second Excipient and the Respondent. No doubt, if the matter ultimately
proceeds to trial, this is an aspect which the tri al court would need to scrutinise,
and if the Plaintiff wishes to rely on such a relationship indeed existing, it is an
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aspect which the Plaintiff will need to prove. Ex facie, the agreement seems to
be a tri-party agreement entered into by three separate parties, with no specific
party identified as acting solely as an agent of any other party.
[12] The Plaintiff’s Particulars of Claim state that:
“5. At all material times:
5.1. The First and Second Defendants were practising attorneys, acting on
behalf of their client, Shamila Trading Enterprises CC……
5.2. ….. was obliged to account to the Plaintiff in respect of a written
agreement of sale dated 28 October 2021, concluded between the
Plaintiff, Shamila Trading, and the First Defendant.”
[13] It is evidently clear from the aforesaid that the Plaintiffs aver that the right to a
statement and debatement arises through contract.
[14] Paragraph 10 of the Plaintiff’s Particulars of Claim takes the matter further, where
the Plaintiff states:
“10. The First and Second Defendant, acting as attorneys in terms of the sale
agreement, with a fiduciary duty, a contractual obligation and a statutory
duty, incurred the obligation of rendering a full account to the Plaintiff”
[15] The aforesaid paragraph reiterates the previous sentiments about the contractual
obligation. Still, it states further that the First and Second Excipients also incurred
a fiduciary and statutory duty in terms of which they were to account to the
Plaintiff.
[16] The relevant portion of the agreement that finds application for the current
proceedings states that:
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”4.2. The attorney shall immediately after receipt of the funds reflected above,
be responsible for making payment to the creditors of the Seller, from
the funds held on its Trust Account in order to settle any outstanding
amount owing to any creditor in respect of the assets hereby acquired
and settled obligations of the Seller.
4.3. The Attorney shall immediately after making payment in settlement of
the creditors provide proof of those payments having been successfully
made.
4.4. The balance of the purchase price held by the Attorney on its Trust
Account shall be disbursed immediately to the Seller after receipt of
confirmation by the Purchaser that the VAT payable by the Seller in
respect of the transaction has been paid to SARS.”
[17] The contentious issues before me are found in Section 4.3 of the Contract, where
the Plaintiff avers a contractual right to statement and debatement that arose
under Section 4.3, and the Excipients state that no such right arose under the
terms of the said Section.
[18] The case for the First and Second Excipients is that they held an obligation to
account to their client, the Third Excipient, and not the Plaintiff.
[19] The grounds of exception persisted with at the hearing of the matter were as
follows:
“1. The Attorney referred to in the agreement namely the First Defendant,
was at all relevant times the attorney and agent for the Third Defendant,
the Seller in the agreement, and any duty and obligation to account in
terms of the agreement, on a proper interpretation thereof, was at all
relevant time a duty by the First Defendant as attorney of the Third
Defendant, the Seller, and no duty to account arose in law on the basis
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of paragraphs 4.2, 4.3, and 4.4 of the Agreement, for First or Second
Defendants to account to the Plaintiff.
2. Therefore, the Plaintiff has not disclosed a cause of action on the basis
of a fiduciary, contractual or statutory duty resting on First or Second
Defendants, to render an account and for debatement thereof to justify
the relief sought.
3. The existence and origin of none of the alleged legal duties referred to
above have been set out or pleaded, and such duties as alleged did not
exist in law in respect of the First and Second Defendants.”
THE LAW RELATING TO EXECPTIONS:
[20] Rule 18(4) of the Uniform Rules of Court provides:
“Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader seeks relief for his claim, defence,
or answer to any pleading, as the case may be, with sufficient
particularity to enable the opposite party to reply thereto.”
[21] The test on exception is whether, on all reasonable readings of the facts pleaded,
no cause of action may be made out [1].
[22] The test is whether on all possible readings of the fact s no cause of action may
be made out; it being for the excipient to satisfy the court that the conclusion of
law for which the plaintiff contends cannot be supported on every interpretation
that can be put upon the facts [2].”
[23] The well-established principle in our law is that the onus rests upon the excipient
who alleges that a Summons discloses no cause of action. The duty rests upon
the excipient to persuade the Court that the pleading is expiable on every
interpretation that can reasonably be attached to it [3].
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[24] Whilst exceptions provide a useful mechanism to weed out cases without legal
merit, it is nonetheless necessary that they be dealt with sensibly.
[25] In Luke M Tembani and Others v President of the Republic of South Africa
and Another [4], the Supreme Court of Appeal set out the general principle
relating to and the approach to be adopted regarding the adjudication of
exceptions as follows;
“Whilst exceptions provide a useful mechanism to weed out cases without legal
merit, it is nonetheless necessary that they be dealt with sensibly.
[26] It might be that where a pleading is so vague that it is impossible to determine
the nature of the claim, or where pleadings are bad in law, the contents do not
support a discernible and legally recognised cause of action, that an exception
would be competent.
[27] It is where pleadings are so vague that it is impossible to determine the nature of
the claim, or where pleadings are bad in law that their contents do not support a
discernible and legally recognised cause of action, that exception is competent
[5].
[28] Where an exception is taken, a Court looks only to the pleading excepted to as
it stands, not to facts outside those stated in it [6].
[29] As such, the excipient must satisfy the Court that it would be seriously prejudiced
if the offending pleading were allowed to stand [7].
[30] A pleading will have sufficient particularity if it identifies and defines issues in
such a way that it allows the other party to comprehend what they are [8].
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[31] A party cannot be allowed to direct the attention of the other party to one issue
and then, at the trial, attempt to canvas another [9].
[32] The norm of a fair trial means each side being given an unambiguous warning of
the case they are to meet; moreover, these requirements are not mere subtilities
as between advisories; the Court too, is dependent upon the fruits of clarity and
certainty to know what question is to be decided and to be presented only with
admissible evidence that is relevant to that question. Making up once case as
you go along is an anathema to orderly litigation and cannot be tolerated by a
Court. Counsel’s duty of diligence demands an approach to litigation which best
assists a Court to decide questions, and no compromise is appropriate [10].
[33] An exception is not intended to solve a factual dispute between the parties and
is decided solely on the allegations as made by the Plaintiff in its Particulars of
Claim [11].
[34] The Plaintiff’s claim seeks a statement and debatement. A statement and
debatement may arise from:
[34.1] A fiduciary relationship between the parties, which obliges the person
who is in a fiduciary position to provide an account; or
[34.2] A contractual obligation to render an account; or
[34.3] A statutory duty to render an account. [12]
[35] In order to be successful , a party claiming a statement and debatement must
allege and prove the following:
[35.1] The basis of the right to receive an account; and
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[35.2] The opposing party’s failure to render an account or , in other
instances, the failure to render a proper account [13].
[36] Harms JA in the matter of DOYLE supra stated further that any contractual terms
of circumstances having a bearing on the outcome sought ought also to be
provided.
[37] Insofar as it relates to the contractual right to a statement and debatement , the
Excipients dedicated a significant portion of their Heads of Argument to the
interpretation of contracts and why the Excipients believe the interpretation of the
contract ought to be interpreted in their favour.
[38] This is, however, not the test when one has regard to exceptions. Irrespective
of the view held by the Excipients and the case they wish to make out in respect
of such, the Court is requested to evaluate whether any interpretation of the
pleading would lead to a cause of action being made out.
[39] It might be that the interpretation as preferred by the Excipients, for the contract
to be interpreted as an obligation existing purely between the First and Second
Excipients, and not the Third Excipient to be ultimately upheld.
[40] Unfortunately for the Excipients , a further interpretation of the pleading and the
annexed contract also possibly exists, and such interpretation is one where, as
pleaded in the Particulars of Claim, a contractual right to account came into
existence through specifically the working of Section 4.3 of the agreement, and
that in terms thereof a contractual right to a statement and debatement arose.
[41] Whether the Plaintiff is ultimately successful in its endeavours in respect of such
a claim is irrelevant when the Court considers the matter at this juncture. The
question is simply whether the Court can, on any interpretation of what is
presented in the Particulars of Claim, state that a cause of action has been made
out.
---
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[42] In this regard , the Plaintiff pleads the existence of a contract between all the
respective parties and identifies the relevant portions of the contract on which it
relies for its claim for a statement and debatement. As such, the Plaintiff has met
the threshold of what was expected to be pleaded to set out a complete cause
of action, once it averred claiming an account from the Excipients and that
account being refused. As such , there is at least one interpretation of the
pleadings and the contract that discloses a valid cause of action.
[43] Much can be said of the cryptic submissions that have been made pertaining to
the fiduciary and statutory duty for the rendering of an account. The Plaintiff
seemingly, in passing, states that, because the First and Second Excipients
acted as attorneys in terms of the sale agreement, they owed a fiduciary and
statutory duty above and beyond the contractual obligation towards the Plaintiff.
[44] Other than stating the designation of the First and Second Excipients as
attorneys, the Respondent does not take the matter any further by pleading why
an alleged fiduciary or statutory duty has come into existence.
[45] It might be that the First and Second Excipients are subject to the provisions of
the Legal Practice Act as stated supra, specifically having regard to Sections 84,
86, and 87 thereof, read together with the Legal Practice Counsel Conduct Rules,
Rule 55(12) and that, through the workings of that provision , a statutory o r
fiduciary duty arises. It has, however, not been pleaded as such.
[46] Much was said during argument on the statutory and fiduciary duties of legal
practitioners to account to their clients or to other individuals who deposited
money into their Trust Accounts. None of these issues, however, arises from an
evaluation of the pleadings.
[47] The Plaintiff devoted much of the argument to the matters of Legal Practitioners
[47] The Plaintiff devoted much of the argument to the matters of Legal Practitioners
Fidelity Fund v Guilherme 2023 (5) SA 409 (SCA) and Du Preez and Others v
Zwiegers 2008 (4) SA 627 (SCA).
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[48] The highwater mark in argument on the part of the Plaintiff was that, because the
First and Second Excipients were legal practitioners, a fiduciary and statutory
duty to account to the Plaintiff came into existence. I have already state d that
the Plaintiffs have not provided any particularity to these statements and if the
Court considers the fact that the Plaintiff themselves state that the First and
Second Excipients were at all material times acting on behalf of the Third
Excipient as per paragraph 5 – 5.1 of the Particulars of Claim, the Court would
have had significant difficulty in accepting that the averments in paragraph 10 of
the Plaintiff’s Particulars of Claim constituted sufficient pleading of all the relevant
statements to sustain a cause of action if evaluated on their own.
[49] Having regard , however, to what has been stated supra pertaining to the
contractual obligation that exists between the respective parties and the
interpretation by the Court in respect thereof, the exception cannot be upheld.
The Plaintiff does not need to prove that the right to a statement and debatement
exists on all the possible grounds. If they prove it on one ground, the claim will
ultimately succeed.
[50] Whilst the Plaintiff might not have disclosed a cause of action in respect of a
fiduciary or statutory duty, an aspect which this Court is not expressly finding
upon as to avoid influencing the trial Court ultimately dealing with the matter, the
fact that the Plaintiff has disclosed a cause of action on the base of a contractual
right to a statement and debatement leads to the only possible deduction that
can be made under the circumstances and that is that the Particulars of Claim
discloses a cause of acti on against the First and Second Excipients at least on
some interpretation of the pleadings and the contract on which such pleadings
are premised.
[51] It might be that the trial Court ultimately finds that no contractual obligation as
[51] It might be that the trial Court ultimately finds that no contractual obligation as
referenced in this judgment existed, or that a fiduciary and statutory duty indeed
exists, and that the Plaintiff with the necessary degree of completeness indeed
pleaded such averments. These aspects remain to be seen.
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[52] I am, however, not persuaded that no cause of action has been made out in the
Plaintiff’s Particulars of Claim, and for that reason, the exception stands to be
dismissed.
[53] I can do no better than what was stated in the matter of Exilite 4205 CC v Jacobs
by Mfenyana J [14], where the Court concluded by stating:
“Having regard to the Plaintiff’s Particulars of Claim as they stand, I
cannot find any conceivable reason why the Defendants would not be
able to plead to them. I must immediately concede that the Particulars
of Claim are not a mod el of perfection. Precision is, however, not what
is required. Neither is certainty that the Defendant should mount a
redoubtable defence to the claim. Whether the Plaintiff’s case falls or
stands on account of its Particulars of Claim on trial, is immaterial for
purposes of the present inquiry.”
COSTS:
[54] I see no reason to deviate from the general principle that costs follow the
outcome. Having regard to the matter in total, I was, however, not persuaded
that a punitive cost order of any sort is warranted. The court would have been
inclined not to order costs on Scale C had it not been for the request by all the
parties that such a cost order was warranted and indeed asked for, irrespective
of the outcome. The court is accordingly guided by the agreement and the
parties' request.
ORDER:
[55] In the result, I make the follow ing order:
[52.1] The exception is dismissed.
[52.2] The First, Second, and Third Respondents shall, jointly and severally,
be liable to pay the Respondent's costs occasioned due to the
exception on a party and party scale, scale C .
Counse l for the Excipients:
Instructed by:
HF FOURIE AJ
ACTING JUDGE OF HIGH COURT , MBOMBELA
Adv . Roelof du Plessis SC
Caz Dry Attorneys
Counse l for the Respondents: Adv . E J Ferreira SC
Instructed by: Doye r & Doye r Attorneys
Judgment reserved on: 20 Nove m ber 2025
Da te of delivery: 03 Dece m ber 2025
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[1] Ocean Echo Properties 327 CC and Another v Old Mutual Life Insurance
Company (South Africa) Ltd [2018] ZASCA 9; 2018 (3) sa 405 (SCA) para 9
[2] Trustees for the Time Being of the Children’s Resources Centre Trust and
Others v Pioneer Food (Pty) Ltd and Others [2012] ZASCA 182; 2013 (2) SA
213 (SCA); 2013 (3) BCLR 279 (SCA); [2013] 1 All SA 648 (SCA) para 36
(Children’s Resource Centre Trust.
[3] See Kunver and Others v Mistry and Another (22/007836) [2024] ZAGPJHC
974 (3 September 2024)
[4] Telematrix (Pty) Ltd v Advertising Standards Authority SA [2005] ZASCA 73;
2006 (1) SA 461 (SCA) para 3.
[5] Cilliers et al Herbstein and Van Wisen the Practice of the High Courts of South
Africa 5ed Vol 1 at 631; Jowel v Bramwell -Jones and Others 1998 (1) SA 386
(W) at 899E-F).
[6] Baliso v First Rand Bank Ltd t/a Wesbank 2017 (1) SA 292 (CC) at para 33
[7] Francis v Sharp & Others 2004 (3) SA 230 (C)
[8] Nasionale Aartappel Kooperasie Bpk v Price Waterhouse Coopers Ing en
Andere 2001 (2) SA 790 (T) at 798F – 799J
[9] Minister of Agricultural and Land Affairs and Another v De Klerk and Other 2014
(1) SA 212 SCA
[10] South African Breweries (Pty) Ltd v Louw [2017] ZALAC 63; [2018] 39 ILJ (189)
LLC at paragraph 4
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[11] First National Bank of SA Ltd v Perry N.O [2001] 3 All SA 331 (A), [2011]
ZASCA 37, 2001 (3) SA 960 (SCA)
[12] Rousseau NO v Cloete [1952] 3 All SA 407 (C), 1953 (3) 703 (C),
See also Rectifier & Community Systems v Harrison [1981] 1 All SA 444 (C),
1981 (2) SA 293 (C)
See also Doyle v Board of Executors [1999] 1 All SA 309 (C), 1999 (2) SA
805 (C)
See also ABSA Bank Bpk v Janse van Rensburg 2002 (3) SA 701 (SCA)
[13] See Doyle v Fleet Motors PE (Pty) Ltd [1971] 3 All SA 55 (A), 1971 (3) SA
760 (A)
See also Nusca v Nusca [1995] 3 All SA 104 (D), 1995 (4) SA 813 (D)
[14] Exilite 4205 CC v Jacobs, Case Number: 2347/2022, Northwest Division,
Mahikeng in the Judgment delivered on 8 April 2024.