IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
(1) REPORTABLE: YES 0
(2) OF INTEREST TO OTHER JUDGES: YES G)
(3) REVISED / f _j
DATE SIGNATURE
CASE NO.: 090696/2024
In the matter between :-
DUSTIN DEAN TITTA Excipient/Defenda nt
V
CALVIN LEE MORRISON Respondent/Plaintiff
090696/2024 2 JUDGMENT
Heard on: 17 November 2025
Delivered: 28 November 2025 - This judgment was handed down electronically by
circulation to the parties' representatives by email, by being uploaded to
the CaseLines system of the GD and by release to SAFLII. The date and
time for hand-down is deemed to be 14:00 on 28 November 2025.
Summary:
1. The exception raised was good in law as the plaintiff in the main proceedings
was required to communica te with the defendant of his intention to cancel.
Until such notice is communicated, the cancellation does not have effect.
2. The particulars of claim lacked the material averments to sustain a cause of
action. The averments as set out on the particulars of claim were insufficient
to establish the defendant's unequivocal intention not to be bound by the
agreement with the plaintiff. The principles enunciated and reiterated in the
Supreme Court of Appeal decision of Datacolor is applied here.
ORDER
It is ordered:-
1. The exception is granted.
2. The respondent is ordered to pay costs of this application on Scale B.
090696/2024 3 JU DGME N T
JUDGMENT
KOOVERJIE J
THE EXCEPTION
[1] The excipient, being the defendant in the main action, excepts to the particulars of
claim on the premises that the respondent (plaintiff) failed to set out the necessary
averments to sustain a cause of action.
[2] The cause of action is based on the breach of an oral agreement. The plaintiff
averred that the defendant did not rectify the breach which amounted to the
repudiation of the agreement between the parties. For the purposes of this
judgment, the defendant will be referred to as the excipient and the plaintiff as the
respondent.
[3] The thrust of the exception was that the respondent failed to specify what the
conduct of the excipient was that indicated his deliberate and unequivocal intention
not to be bound by the oral agreement. The ground of exception was pleaded as
follows:
3.1 In paragraph 8. 1 of the particulars of claim the Plaintiff avers that the
defendant allegedly breached an oral agreement between the parties and
his further failure to rectify same amounted to a repudiation of the
090696/2024 4 JUDG ME N T
fundamental and essential.terms of the said oral agreement between the
parties;
3. 2 However the plaintiff fails to adequately specify what conduct of the
defendant indicated his deliberate and unequivocal intention not to be bound
by the said oral agreement, thus amounting to repudiation thereof.
ANALYSIS
(4) The objection was premised on Paragraph 7 of the particulars of claim, where the
excipient argued that the allegations therein are insufficient to indicate his
unequivocal intention not to be bound to the agreement. The averments made
therein were:
"The defendant breached the terms of the oral agreement by, inter alia:
7. 1 Failing to put forth his 50% of the purchase price for the businesses I
platforms I enterprises which would have resulted in the acquisition of same
with 50% interest for each of the plaintiff and the defendant.
7. 2 Failing to be transparent in the business dealings of which the agreement
was the subject, and failing to provide the plaintiff with insight into the
business activities, financial statements and financial instruments despite
the plaintiff's various requests.
7.3 Failing to return to repay to the plaintiff the investment amount of USO $
121 533.36 (one hundred and twenty-one thousand five hundred and thirty-
090696/2024 5 JUDGM ENT
three US dollars and thirty-six cents) or any part thereof within 9 months of
the payment thereof by the plaintiff to the defendant."
[5] The respondent then pleaded repudiation and cancellation in paragraph 8 of the
particulars of claim:
"8. 1 The aforesaid breaches and failure to rectify same by the Defendant
amounted to a repudiation of the fundamental and essential terms of the oral
agreement between the parties.
8. 2 The Plaintiff elected to, alternatively herewith elects to, accept the
Defendant's repudiation and cancels the oral agreement herewith."
[6] The respondent, on the other hand, argued that the necessary averments were
made to sustain a cause for action for repudiation. The respondent relied on their
conduct of the excipient in breaching the terms of the agreement. He argued that
such conduct was sufficient to determine the excipients his conclusive intention that
he no longer wanted to be bound by the agreement.
[7] In the seminal decision of Datacolor International 1 the Supreme Court of Appeal
outlined the salient principles on the subject of repudiation. In summary the court
affirmed the following that:
7 .1 The test for repudiation is objective. The emphasis must be shifted from the
state of mind of the repudiating party to what he subjectively intended, to
1 D atacolor International (Pty) Ltd v lntermarket (Pty) Ltd 200 I (2) SA 284 (SCA)
090696/2024 6 JU DG MEN T
what someone in the position of the innocent party would think the
repudiating party intended to do;
7.2 Repudiation is premised on the perception of a reasonable person.2 The
test is whether a reasonable person would conclude that proper
performance would not be forthcoming;
7.3 The matter must be considered from the vantage point of an innocent party.
An innocent party is not requested to identify the breach or the grounds on
which he relies for cancellation. In this matter, the respondent had identified
the breach and listed same in paragraph 7 of the particulars of claim. 3
7 .4 The repudiation occurs when one party to a contract w ithout lawful grounds,
indicates to the other party in words or by conduct a deliberate and
unequivocal intention to no longer be bound by the contract. Repudiation is
therefore a form of a breach of contract. Once a contract has been
repudiated the aggrieved party may either elect to enforce specific
2 In paragraph [ 16] the court stated:
"The emphasis is not on the repudiating party's state of mind, on what he subjectively intended, but on
what someone in the position of the innocent party would think he intended to do; repudiation is
accordingly not a matter of intention, ii is a matter of perception. The perception is that of a reasonable
person placed in the position of the aggrieved party. The test is whether such a notional reasonable
person would conclude that proper performance (in accordance with a true inte1pretation of the
agreement) will not be forthcoming. The inferred intention accordingly serves as the criterion for
determining the nature of the threatened actual breach."
3 Datacolor, paragraph 28
090696/2024 7 JUDGMENT
performance or accept the repudiation and proceed to cancel the contract
and claim damages. 4
[8] In paragraph 1 the court expressed:
" The better view is that repudiation is a breach in itself . . . that the "intention"
does not in truth have to be either deliberate or subjective . . . but is simply
descriptive of conduct heralding non- or ma/performance on the part of the
repudiator; and that the so-called "acceptance", although a convenient catchword,
does not "complete" the breach but is simply the exercise by the aggrieved party of
his right to terminate the agreement."
[9] On his understanding of the established principles extrapolated in Datacolor, the
respondent argued that the excipient's conduct as pleaded in paragraph 7,where
inter alia the excipient failed to provide the respondent with 50% of the purchase
price in the business and where he failed to put his half share towards the business
venture, demonstrated his unequivocal intention not to be bound any longer to the
agreement.
[1 O] The respondent further argued that the excipient had distanced himself from the
agreement and failed to further comply with his obligations, particularly in failing to
inform the respondent of the insights of the business, financial statements and
instruments. Despite him following up, the excipient has failed to comply.
4 Van Rooyen v Minister Van Openbare Werke en Gemeenskapsbou I 978 (2) 835 at 845
090696/2024 8 JU DGM ENT
[11] The inference he drew was reasonable in the circumstances. Surely if the excipient
intended to be bound by the agreement he would have taken it upon himself either
to comply by the obligations, or to indicate that he does not wish to be bound to the
terms of the agreement. He has failed to do so.
[12] The core enquiry is -would any reasonable person in the position of the respondent
have perceived that the excipient had no intention of performing in terms of the
contract and fulfilling his obligations.
[13] At paragraph [18] the court in Datacolor emphasized that:
"The conduct from which the inference of impending non-or ma/performance is to
be drawn must be c/earcut and unequivocal, i e not equally consistent with any
other feasible hypothesis."
[14] It is not in dispute that the respondent's intention to cancel the agreement was not
brought to the attention of the excipient. This was however a fundamental step that
had to be taken in order to make a determination that his intention not to be bound
by the agreement was unequivocal.
[15] The excipient illustrated that the "breaches" outlined in paragraph 7 of the
particulars of claim were not sufficient to draw an inference of the excipient's
unequivocal and deliberate intention not to be bound by the contract.
090696/2024 9 JUDGM EN T
[16] The excipient argued that he was not given an opportunity to express himself nor
did he conduct himself in a manner that would have led to the conclusion that his
intention was unequivocal and deliberate.
[17] In considering the exception raised, I am required to read the pleadings as a whole.
The respondent pleaded that parties entered into an oral agreement in October
2022 in terms of which the respondent would invest funds in the defendant and the
excipient would in turn utilize the funds with the intention of establishing a business
or grow various e-commerce businesses / platforms / enterprises. 5
[18] The main purpose of the agreement was for both parties to invest equally in the
project so that they would achieve positive returns. The respondent was to invest
over one hundred and twenty-one thousand dollars (USO).
[19] The respondent alleged that he had complied with his obligations. It was further
alleged that there was non-compliance on the part of the excipient. The excipient
was not transparent in providing the necessary information. Despite the plaintiffs
requests, the excipient failed to put up his 50% of the purchase price for the
investment. He further failed to pay the invested amount within the 9 months of the
respondent investing in the project.
[20] Equipped with these facts, a reasonable person in the position of the respondent is
required to objectively draw an inference of whether the excipient's conduct
5 Paragraph 3 of the particu Jars of claim
090696/2024 10 JU DGME NT
amounted to an unequivocal intention not to be bound by the agreement between
the parties.
[21] In Ponisammy reference was made to Universal Cargo Carriers Cooperation v
Citati 1957 (2) QB 401 at 436 where that court stated6 :
"An renunciation can be made either by words or conduct, provided it is clearly
made. It is often put that the party enunciating must evince and have intention not
to go on with the contract. The intention can be evinced either by the words or by
conduct. The test whether an intention is sufficiently evinced by conduct is whether
the party enunciating has acted in a way as to lead a reasonable person to the
conclusion that he does not intend to fulfil his part of the contract."
[22] Our courts have repeatedly affirmed that a party who wishes to exercise his right to
cancel must convey its decision to the other party unless the contract provides
otherwise.
[23] The Supreme Court of Appeal in Dataco/or affirmed this proposition in law with
reference to numerous authorities. At paragraph 30 it expressed:
23.1. "A similar approach is apparent in England. Thus it was said by Lord Stein
in Vito/ SA v Nor Elf Ltd [1996] AC 100 (HL at 810G to 811 B):
"My Lords, the question of law before the House does not call for yet another
general re-examination of the principles governing and anticipatory breach
6 Panisam my and A nother v V ersailles Estates Pty Ltd [ 1973] A ll SA 540 A at page 55 1
090696/2024 11 JUDGMENT
of a contract and the acceptance of the breach by the aggrieved party. For
present purposes I would accept as established law the following
propositions: (1) where a party has repudiated the aggrieved party has an
election to accept or affirm the contract, Fercometal S.A. R. L. v Mediteranian
Shipping Company SA [1989] AC 788; (2) an act of acceptance of the
repudiation requires no particular form, the communication does not have to
be couched in a language of acceptance. It is sufficient that the
communication of conduct clearly and unequivocally conveys to the
repudiating party that the aggrieved party is treating the contract as an end.
(3) It is rightly conceded by counsel for the buyers that the aggrieved party
did not personally or by agent notified the repudiating party of its election to
treat the contract as an end. It is sufficient that the fact of the election com e
to the aggrieved repudiating party's attention."
23.2 It also referred to Jaffer v Fa/ante whe re that court expressed at 362 F-G7:
"Communication to the buyer of the seller's election would appear to be
desirable so as to crystalise the rights and the position of the parties to the
contract. For it would suffice for the seller merely to decide to cancel the
contract without notifying his decision would lead the buyer in an invidious
position. It seems to be both on principle and on authority that this is not the
7 Jaffa v Falante 1959 ( 4) SA 360 C
8 M y emp hasis
090696/2024 12 JU DGM ENT
23.3. The court noted that this principle was upheld in Swart v Vosloo 1965 (1)
SA 100(A) at 105 F-H and reiterated in Miller & Miller v Dickinson 1971
(3) SA 581A at 587 to 588A where the following was stated:
"In this Court it was not disputed on behalf of the appellants that in law, in
the absence of an agreement to the contrary, a party to a contract to
exercise his right to cancel must convey his decision to the mind of the other
party and that cancellation does not take place until that happens. It is
accepted that until the innocent party's election is brought to the attention of
the guilty party there will be no finality and hence uncertainty."
[24] The court in Datacolor further held that indirect communication to the other party
sufficed. At paragraph 29 the court expressed:
"Once he has declared his decision to cancel it is, of course, in his own interest to
ensure that it is brought to the attention of the guilty party lest the latter may retract
his repudiation, if that is his breach thereby pre-empting any purported cancellation
on his part. But he is not obliged to do so. Since the election to cancel provided
that it is unambiguous, need not be explicit but maybe implicit, and since the cause
of cancellation had not been correctly identified and stated, it follows that the actual
communication of the decision to cancel, once made and manifested, may be
conveyed to the guilty party by the third party. ,,g
[25] Having regard to the said principles enunciated by our courts, I find that an
inference could not be drawn in the respondent's favour. A communication of his
9 My emph asis
090696/2024 13 JU DGM EN T
intention to cancel necessary. On the facts pleaded, an unequivocal intention not
to be bound by the agreement was not established.
[26] The general principles relating to exceptions was outlined in Living Hands 10 with
reference to various authorities namely:
(a) In considering an exception that a pleading does not sustain a cause of
action, the court will accept, as true, the allegations pleaded by the plaintiff
to assess whether they disclose a cause of action.
(b) The object of an exception is not to embarrass one's opponent or to take
advantage of a technical flaw, but to dispose of the case or a portion thereof
in an expeditious manner, or to protect oneself against an embarrassment
w~ich is so serious as to merit the costs even of an exception.
(c) The purpose of an exception is to raise a substantive question of law which
may have the effect of settling the dispute between the parties. If the
exception is not taken for that purpose, an excipient should make out a very
clear case before it would be allowed to succeed.
(d) An excipient who alleges that a summons does not disclose a cause of
action must establish that, upon any construction of the particulars of claim,
no cause of action is disclosed.
(e) An over-technical approach should be avoided because it destroys the
usefulness of the exception procedure, which is to weed out cases without
legal merit.
10
Living hands Pty Ltd v Dtiz and Others 2023 (!) SA 164 GJ 12/7/2022 at para 15
090696/2024 14 JU DGMENT
(f) Pleadings must be read as a whole and an exception cannot be taken to a
paragraph or a part of a pleading that is not self-contained.
(g) Minor blemishes and unradical embarrassments caused by a pleading can
and should be cured by further particulars.
[27] I am further reminded of the long-established principle, that a party is required to
plead every material fact which would be necessary for the plaintiff to prove in order
to support his claim. In Mckenzie 11 the court reiterated that only the facta
probanda need to be pleaded.
[28] Accordingly the exception raised herein, on the ground that the particulars of claim
lacks averments necessary to sustain a cause of action, has merit. The excipient
has shown that on every interpretation afforded, the cause of action lacked the
material averment to sustain his cause of action namely, that the excipient had been
informed of the respondent's intention to cancel the agreement. There is no
evidence before me that the parties agreed that cancellation could be effected
without notice.
(29] The Constitutional Court in the Pretorius matter12 reminded us that the purpose of
an exception is to protect litigants against claims that are bad in law or against an
embarrassment that is so serious as to merit the costs even of an exception. An
exception should only be upheld if the court is satisfied that the cause of action or
11 Mckenzie v Farmers Cooperative Meat Industries Ltd 1922 AD 16 at 23
12 Pretorius and Another v Transport Pension Fund and Others 2019 (2) SA 37 CC at paragraph 15
090696/2024 15 JU DGMENT
conclusion of law in the pleading cannot be supported on every interpretation put
to the facts which is the case here.
[30] In the premises the exception is granted with costs.
Appearances:
Counsel for the applicant:
Instructed by:
Counsel for the respondent:
Instructed by:
Date heard:
Date of Judgment:
Adv. L Hennop
FVS Attorneys
~ VERJIE
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Adv. SM van Vuren
Dyason Attorneys
17 November 2025
28 November 2025