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2026
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[2026] ZAGPJHC 372
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De Mendonca v FNB Fiduciary (Pty) Ltd N.O and Others (2024/008410) [2026] ZAGPJHC 372 (16 March 2026)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
Case
Number: 2024-008410
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
16/03/2026
In
the matter between:
LINSEY
DE MENDONCA
Plaintiff
and
FNB
FIDUCIARY (PTY) LTD N.O
First Defendant/First Excipient
JOSE
JORGE DE FREITAS (JUNIOR)
Second Defendant
JOHANNA
CATHARINA SOPHIA HAGEMAN N.O.
Third Defendant/Third Excipient
JUDGMENT
WENTZEL-THOMPSON
J
Introduction
[1]
This is an opposed exception in terms of Uniform Rule 23(1). The
first and third defendants, as excipients, except to
the plaintiff’s
amended particulars of claim on the basis that they lack averments
necessary to sustain a cause of action
and, in certain respects, are
vague and embarrassing.
[2]
The dispute arises from the administration of the estate of the late
Henrique De Mendonca (“
the deceased
”), and the
alleged undervaluation of the deceased’s business interests
pursuant to a settlement agreement concluded
by the executrix
(Johanna Catharina Sophia Hageman N.O. (“
Hageman
”)
who is the third excipient/defendant) and Jose Jorge De Freitas (“
De
Freitas
”) (Junior), the second defendant. De Frietas was
the deceased’s business partner. As no relief is sought against
the
second defendant, he is not party to the current exception.
[3]
The plaintiff seeks damages in the amount of R5,435,959.25,
representing the alleged difference between R20,000,000 (the
alleged
value payable under a buy-and-sell agreement), and R14,564,040.75
(the amount paid to the estate pursuant to the settlement
agreement).
[4]
The plaintiff opposes the exception. She contends that, read as a
whole, the amended particulars of claim disclose a sustainable
cause
of action against the first and third defendants. She also says that
the exception is unduly technical and that the disputes
raised by the
excipients concern matters of interpretation, inference and proof
more appropriately determined at trial.
The
pleaded case
[5]
The plaintiff pleads that she is the surviving spouse of the deceased
and is his nominated beneficiary of his deceased
estate. Her pleaded
claim is that she has adiated the benefit due to her under the will.
Part of that benefit comprises of the
deceased’s pecuniary
interest in a partnership known as Die Vleispot and a close
corporation known as Lewisham Properties
CC.
[6]
The plaintiff pleads that, during his lifetime, the deceased and the
second defendant concluded two buy-and-sell agreements,
with the
later agreement concluded on 23 May 2019, replacing the earlier
agreement.
[7]
The purpose of the agreements was to ensure that on the death of
either of the partners in the business, the other partner
would
purchase the other partner’s interest in the business from his
deceased estate at an agreed value of the businesses.
In order to
fund this purchase, each partner would take out a life policy on each
other’s life to the amount agreed upon
as being the value of
the business. The plaintiff alleges that the agreed value of the
deceased’s interest under the second
agreement was R20 million.
[8]
It is pleaded that after the deceased’s death, the executrix
(third defendant) concluded a settlement agreement
with the
deceased’s business partner (the second defendant) in terms of
which she sold the deceased’s interest in the
businesses to the
second defendant for R14 564 949.75. She alleges that this
was below the contractual price contemplated
in the buy-and-sell
agreement.
[9]
The plaintiff’s pleaded cause of action is the executrix owed
fiduciary duties to the estate and its beneficiaries
and breached
those duties by concluding the settlement agreement for less than the
contractual price of R20 million. As a result
she has suffered
damages in the amount of R5 435 959.25.
The
grounds of exception
[10]
The excipients’ heads of argument identify, in substance, five
principal grounds of exception. These are:
a.
First, that the plaintiff has failed to plead a valid and enforceable
second buy-and-sell agreement because there was no binding consensus
on price.
b.
Second, that the plaintiff’s reliance on a pleaded tacit term
is legally impermissible and inadequately pleaded.
c.
Third, that the claim is premature because the plaintiff has not
pleaded compliance with the
Administration of Estates Act 66 of 1965
,
particularly in relation to the estate administration process.
d.
Fourth, that the damages calculation is illogical and speculative
because the settlement concerned a broader suite of business
interests than that allegedly covered by the second buy-and-sell
agreement; and
e.
Fifth, that the allegations relating to fiduciary duty are vague and
incomplete, including the plaintiff’s failure to properly plead
fault.
Applicable
legal principles to exceptions
[11]
The
principles governing exceptions are trite. The purpose of an
exception is to dispose of a pleading that is legally flawed and
which cannot sustain a claim or defence, assuming the facts pleaded
are true.
[1]
[12]
An
exception is a useful procedural mechanism “to weed out cases
without legal merit.”
[2]
which are bad in law, but it is not designed to settle questions of
fact, to decide probabilities, or to anticipate the full ventilation
of disputes better suited to trial.
1
A pleading will be excipiable on the ground that it discloses no
cause of action only if, upon every interpretation that the pleading
can reasonably bear, no cause of action is disclosed.
2
Put differently, the excipient bears the burden of satisfying the
court that the conclusion of law contended for by the pleader
cannot
be supported on any reasonable construction of the pleaded facts.
3
[13]
For purposes of an exception, the pleaded facts must be accepted as
true. The court does not concern itself with whether
those facts will
ultimately be proved. Nor is the court ordinarily concerned with
facta probantia
, that is the evidence to support those facts;
what the rules require is that the material facts, the
facta
probanda
necessary to sustain the claim, be pleaded with
sufficient particularity to enable the opposing party to know the
case it must meet.
4
[14]
The
Constitutional Court in
Transport
Pension Fund
[3]
provided
a useful summary of the trite principles concerning exceptions as
follows:
“
[15]
In
deciding
an
exception the
court
must
accept
all
allegations
of
fact
made
in
the
particulars
of
claim
as
true,
and
may
not
have
regard
to
any
other
extraneous facts or documents, it may uphold the exception to the
pleading only when the excipient has satisfied the court
that the
cause of action or conclusion of law in the pleading cannot be
supported on every interpretation that can be put on the
facts. The
purpose of an exception is to protect litigants against claims that
are bad in law or against an embarrassment which
is so serious as to
merit the costs even of an exception. It is a useful procedural tool
to weed out bad claims at an early stage,
but an overly technical
approach must be avoided.”
[15]
Ultimately
the test is whether the excipient is prejudiced by the offending
pleadings.
[4]
[16]
Courts are, moreover, generally cautious about deciding issues of
contractual interpretation on exception, especially
where context or
admissible background facts may influence the meaning. That said,
there is no absolute rule against deciding a
question of
interpretation on exception where the document is clear and
reasonably admits of only one meaning.
5
The operative
question remains whether the plaintiff’s pleaded interpretation
is one that the contract can reasonably bear.
If it is, the exception
cannot succeed.
6
[17]
Against this framework, I turn to deal with the grounds of exception
in turn.
First
ground: alleged absence of a valid and enforceable second
buy-and-sell
agreement
[18]
The excipients submit that the plaintiff’s case depends upon
the validity and enforceability of the second buy-and-sell
agreement
and that clause 5 of that agreement contemplated that annual
valuations of the parties’ business interests would
take place,
the recording thereof, and endorsement by the contracting parties.
As no subsequent valuations or endorsements
are pleaded, and,
absent compliance with that mechanism, the agreement lacks consensus
on an essential term of the contract, namely
the price, and was
accordingly void for vagueness.
[19]
The
excipients argue that it is trite that the necessary, material and
essential features (i.e., the
essentialia
)
of a contract of sale include consensus between the parties on (i)
the thing purchased (
merx
);
and (ii)
the
price (
pretium
).
[5]
[20]
With
reference to the price, in
Westinghouse
Brake & Equipment
11,
the Supreme Court of Appeal reiterated the following:
“
It
is
a
general
rule
of
our
law
that
there
can
be
no
valid
contract
of
sale
unless
the
parties
have
agreed,
expressly
or
by
implication,
upon
a
purchase
price.
They
may
do
so
by
fixing
the
amount
of
the
price
in
their
contract
or
they
may
agree
upon some
external
standard by the
application
whereof
it
will
be
possible
to
determine
the
price
without
further
reference
to them…
This is
part
of
the
wider
general
principle
that
contractual
obligations
must
be defined or ascertainable, not vague and
uncertain.”
[21]
Accordingly,
it is argued that if the parties fail to reach any definite agreement
on a vital term of their proposed
bargain,
namely
the
price,
then the court is not entitled to make a bargain for them.
Consequently, the parties would not have an enforceable claim
with
reference to the agreement.
[6]
[22]
The excipients’ counsel explains in his heads of argument
that “
[i]n determining the purchase price, clause 5 of the
Second Buy and Sell Agreement sets out an express mechanism by (i)
requiring
annual valuations (i.e., every 12months); (ii) the
recording of such annual valuations in a note appended to the
Annexure to the
Second Buy and Sell Agreement; and (ii) endorsements
by both the deceased and the second defendant. This express mechanism
and
procedure are not alleged to have been complied with.
”
[23]
The second buy-and-sell agreement was concluded on 23 May 2019. The
deceased passed away on 22 June 2023. However, in
the intervening
period of more than three years, no further valuations or
endorsements were carried out other than the initial
valuation
carried out in May 2019 of R20 million. The excipients argument is
that the plaintiff is impermissibly treating the initial
2019
valuation of R20 million as if it remained binding indefinitely and
was binding as at the date of the deceased’s death.
[24]
This, it is argued, is impermissible in law as clause 5 of the second
buy and sell agreement expressly provides that
the initial value
endures only for 12 months from signing, after which updated
valuations must be agreed and recorded.
[25]
It is argued further that in the absence of allegations that (i) any
further valuations were undertaken; (ii) the prescribed
endorsement
procedure was followed; or (iii) the parties agreed to dispense with
the valuation procedure; the plaintiff’s
amended particulars of
claim fail to disclose a binding consensus on the price. This is
because in the absence of compliance with
the prescribed valuation
mechanism, there is no determinable or agreed price. The second buy
and sell agreement thus lacks consensus
on a material term and is
void for vagueness.
[26]
Obviously as a matter of fact, circumstances may be such that the
business may have grown and been more prosperous in
the intervening
period; it could equally have had a slump and been less valuable at
the date of the death of the deceased. This
is a question of fact to
be determined at the trial.
[27]
It is of course correct that a contract of sale requires agreement on
the merx and the
pretium
, or at least an objective and
ascertainable mechanism by which the price may be determined.
7
It is equally correct that a court may not make a bargain for the
parties where they have failed to achieve consensus on an essential
term.
8
[28]
Clause 5.1 of the later agreement provides that the agreed price
would be as set out in the Annexure to the agreement.
[29]
Clause 5.2 reads:
"The
value of the partner's interest and claim
may vary from time to time and
therefore
the
partners
must,
within
a
period
of
not
more
than
12 months
from
the
date
of
signing
this
agreement,
and
also
every
year
thereafter, i
.
e
.
within 12 months reckoned from a previous
date, carry out or cause to be carried out a valuation of the
partners interest and claims,
after which the value thus determined
must be recorded by the partners (or
they
must
cause
it
to
be
recorded)
in
a
note
contained
in
the
Annexure,
and
both
partners
must
endorse
such note and the date
of such note by affixing their signatures
thereto."
[30]
Clause 5.3 in turn provides that the purchase price would be equal to
the latest note in the Annexure.
[31]
The plaintiff pleads that in terms of the Annexure to the second
buy-and-sell agreement the purchase price was R20 million.
[32]
The plaintiff pleads:
“
On
a proper interpretation of clauses 5.1, 5.2 and 5.3 of the Second Buy
and Sell Agreement
,
in the event
that
the partners
did
not subsequent
to
the conclusion of
the
Second
Buy
and
Sell
Agreement
carry
out
or
cause
to
be carried
out
a valuation
of
the
partners'
interests
and
claims,
the
purchase
price
of
a
former
partner's
interest and claim would remain the amount as per the Annexure to the
Second Buy and Sell Agreement, beingR20,000,000.00.”
[33]
In the alternative, the plaintiff pleads a tacit term to the same
effect. She also pleads that, notwithstanding the absence
of a
subsequent valuation, the deceased and the second defendant continued
paying premiums on life policies taken out on each other’s
lives, which conduct is said to be consistent with the pleaded
interpretation of clause 5 or tacit term.
[34]
The plaintiff has pleaded positively that on a proper interpretation
of clauses 5.1 to 5.3 the purchase price remained
the amount recorded
in the annexure to the first agreement, namely R20 000 000, in the
event that no subsequent valuation was undertaken.
That may or may
not ultimately prove to be correct. But at the exception stage, the
question is solely whether that interpretation
is one that the
contract can reasonably bare.
[35]
Her case is that the agreement, properly construed, preserved the
annexed valuation unless and until a later valuation
was performed.
That construction may eventually be rejected after the leading of
evidence at the trial including contextual
evidence. But I am
unable to say, at exception stage, that the plaintiff’s
contention is so untenable that the claim is bad
in law on every
possible reading.
[36]
Where
a plaintiff pleads a construction of an agreement that is reasonably
sustainable, an exception directed at the merits of that
interpretation should not be upheld merely because the excipient
contends for another construction, even if that may be a stronger
one.
[7]
The plaintiff’s
pleaded interpretation is linked to the prior and factually, the only
existing valuation performed as contemplated
in clause 5. That in my
view is sufficient at this stage for her to plead.
[37]
The first ground of exception must therefore fail.
Second
ground: alleged impermissible reliance on a tacit term
[38]
The excipients contend that the plaintiff’s reliance on a tacit
term in the alternative is excipiable because the
proposed tacit term
contradicts the express valuation machinery in clause 5. Clause 5, it
is argued, deals exhaustively with the
subject and one cannot plead a
contrary tacit term. It is further argued that the plaintiff has
failed to adequately plead the
factual basis from which the tacit
term is to be inferred.
[39]
The
excipients are correct: A tacit term cannot be imported where it
contradicts the express terms of the contract, and a court
will not
imply a term merely because it appears reasonable to do so.
[8]
The recognised tests remain those of business efficacy, and whether
the term is capable of clear formulation.
[9]
[40]
Kerr,
in his work on Contract
[10]
explains tacit terms thus:
“
10.20
There
is another category of terms which derive (or at least are said to
derive) from the common intention of the parties, but which
are not
expressed by them. These terms are inferred from the express terms
and surrounding circumstances of a contract (including
the
conduct of the parties after the conclusion of the contract). They
are, in other words, deduced or inferred
from the facts and may be
called ‘tacit terms’. Tacit terms must be distinguished
from ‘implied terms’
in the sense of terms implied
by law.
10.21
There
is no difference between express terms and tacit terms as far as
their nature and effect are concerned. However, there is
a difference
in the way in which these terms are to be proved: an express term is
proved by direct evidence and a tacit term by
circumstantial
evidence, including the conduct of the parties. The courts
are generally slow to import a tacit term
into a contract
.”
[41]
The officious bystander test has been adopted from English law. Its
application in assessing the existence of a tacit
term is stated by
Kerr to be as follows:
“
10.23
At
first blush, our courts may seem to understand this test to require
that a tacit term must as such have been actually intended
by
the contractants. Such an impression would be misleading.
In many cases the reason for the parties’ failure
to give
expression to the term, which one of them subsequently contends
should be incorporated in their contract, will be
that they
never thought of the particular matter when they were negotiating
the contract, and not that they thought of it
but decided that
it was such an obvious term that they need not express it. And if
they did not think of a particular term it can
hardly be said at a
later stage that they themselves intended the term to operate.
10.24
It
will also not be easy for a court to ‘be confident’ of a
particular unexpressed intention where parties who did not
actually
envisage the alleged circumstances during their negotiations now
dispute an alleged tacit term. The courts have, consequently,
applied
the test with references such as the ‘imputed intention’
or (probably more correctly) the ‘inferred intention’ of
the parties, or what may reasonably be assumed to have been their
intention.
10.25
All
told, the courts seem to adhere to the intention of
the contractants as the basis for a tacit term inasmuch as
the
alleged unexpressed term must be compatible with the expressed
intention of the parties. References to a presumed or
inferred intention simply mean that there are circumstances which
justify the inference that the alleged term does fall within
the
scope of the parties’ actual expressed intention, even though
they may not have had the particular alleged term in mind.
10.26
The
business efficacy of the contract and what
reasonable contractants would have agreed upon in the
circumstances of
the particular case, are part of the
facts from which the inference of the alleged intention can be made.
To this extent,
the bystander test has been objectified. If such an
inference cannot be made, a consensual tacit term cannot be read into
the contract.
In given circumstances, a court may find that
a naturale with the alleged content has developed for the
particular type
of contract, but that would depend on the policy
considerations that underlie the implication of terms ex lege.
10.27
Attempts
to link unexpressed terms to the intention of the parties at all
costs, and to reserve the application of the innocent
bystander test
for so-called ‘imputed tacit terms’ alone,
only serve to obscure the useful distinction between
true consensual
terms and terms implied by operation of law, as well as,
potentially, the distinction between applications
for rectification
and importing tacit terms into a contract.”
(footnotes
omitted)
[42]
I align myself with Kerr’s formulation of tacit terms and the
tests to be applied in ascertaining whether or not
there is indeed a
tacit term.
[43]
As indicated from the above quoted passages of Kerr, where the
express terms of a contract do not preclude the possibility
of
importing a tacit terms, there are three recognised tests for
importing a tacit term into a written agreement.
[44]
The
classic test is the officious bystander test. This test provides that
if an officious bystander bystander were to suggest the
alleged tacit
term at the time the contract was concluded, both parties would have
responded “
of
course
”
without hesitation. This test determines whether the term is (i) so
obvious it went without saying; and (ii) consistent
with the express
terms.
[11]
[45]
This
“officious bystander” test does not require that the
parties must consciously have directed their minds to the
tacit term
and actually have intended it, but only that they would unanimously
have asserted it if the situation requiring it had
been drawn to
their attention.
[12]
[46]
The
second, test is the “
business
efficacy
”
test which provides that the term must be necessary in the business
sense to give efficacy to the contract. This requires
that the
interpretation or tacit term be commercially sensible and
businesslike.
[13]
[47]
The
third (further) test is that the alleged tacit term must be capable
of clear and exact formulation, because the intention of
the parties
to include it in the contract could not otherwise be inferred or
imputed.
[14]
[48]
The
excipients state that the express terms of the contract may prohibit
the importation of tacit terms,
[15]
or
may deal with the subject matter in such detail as to leave no room
for tacit terms,
[16]
and
a tacit term cannot be imported into the contract in respect of any
matter to which the parties have applied their minds and
for which
they have made express provision in the contract.
[17]
On the other hand, an ambiguity in the express terms may leave room
for a tacit term.
[18]
[49]
The
excipients accept that the courts are generally reluctant to
determine disputes regarding the interpretation of the terms of
a
contract at the exception stage.
[19]
They, however, argue that where the meaning of a contract is clear
and unambiguous, the court may do so on exception.
[50]
In
this regard, the excipients’ counsel referred me to the
following dicta by the Appellate Division in Sun Packaging (Pty)
Ltd
[20]
:
“
Difficulty
in interpreting a document does not necessarily imply that it is
ambiguous ... Contracts are not rendered uncertain because
parties
disagree as to their meaning ... Counsel was probably right in saying
that the letter is not a lawyer’s contract.
But this is no
reason for interpreting it differently. For the reasons given, I do
not find the meaning of clause 3 doubtful. Properly
interpreted, it
has only one meaning.
”
[51]
The excipients thus argue that the exception should be upheld as the
meaning of the contract is certain and clear. It
was argued that the
purported interpretation is irreconcilable with the express
provisions of the second buy-and-sell agreement
which clause makes
provision for mandatory and recurring valuations; limits the validity
of each valuation to a 12 month period;
and requires express
endorsement by both parties.
[52]
Flowing from this argument it was argued further that the tacit terms
may not contradict the express terms of the agreement.
In this
respect it was contended int the heads of argument that “
[t]he
plaintiff’s pleaded and alleged tacit term is directly
inconsistent with the express and recurring valuation mechanism
provided for in clause 5 of the Second Buy and Sell Agreement. As
such, it cannot be implied by law or fact
.”
[53]
I
was also referred to The Supreme Court of Appeal judgment in
KPMG
Chartered Accountants (SA)
[21]
that reaffirmed the principle that where a document that was
“i
ntended
to provide a complete memorial of a jural act, extrinsic evidence may
not contradict, add to or modify its meaning
”.
I was told that the SCA also expressed its dismay at the parol
evidence rule being frequently ignored by practitioners
and seldom
enforced by trial courts.
[54]
However,
whether or not a tacit term has been proved is an issue for trial. At
the exception stage, the enquiry on exception is
a limited one. The
issue is not whether the plaintiff has already proved a tacit term.
The plaintiff has pleaded not only the content
of the alleged tacit
term, but also conduct said to support the inference, namely that no
subsequent valuation was procured and
yet premiums on the relevant
policies continued to be paid. Conduct is relevant in determining
whether a tacit term as alleged
existed.
[22]
[55]
It may transpire at trial that such conduct is neutral, equivocal, or
inadmissible. It may equally transpire that the
express terms of the
agreement leave no room for the implied term contended for. The
plaintiff is correct to submit that disputes
concerning whether the
pleaded conduct supports the inference sought are ordinarily matters
for evidence and argument at trial,
and should not be decided on
exception.
[56]
I accept that the tacit-term pleaded is so bald as to be
non-justiciable and is formulated with sufficient clarity. Whether
the pleaded surrounding circumstances (ie the subsequent conduct of
the parties) is ultimately sufficient to sustain the inference
is a
different question.
[57]
The second ground of exception must also accordingly fail.
Third
ground: prematurity and the
Administration of Estates Act
[58
]
The excipients argue that the plaintiff’s claim is premature
because the estate is still under administration and
the plaintiff
has not pleaded compliance with the
Administration of Estates Act,
including
the machinery relating to liquidation and distribution.
Their contention is that the plaintiff’s alleged damages are
speculative
until the estate administration process has run its
course.
[59]
I do not agree. The claim has already arisen and the damages have
already been suffered; it is not necessary for the
estate to be wound
up before determining the quantum. What is clear at this stage
already is that the ultimate distribution payable
to the plaintiff,
whatever that amount is, will be some R5000 less than it would
otherwise have been but for the alleged breach
by the executor of the
estate’s fiduciary duties.
[60]
The argument raised by the excipients overlooks the true nature of
the pleaded claim. The plaintiff’s case is not
framed as an
objection to a liquidation and distribution account, nor as an
attempt to circumvent the statutory estate-administration
process. It
is framed as a personal claim for damages arising from the alleged
breach by the executrix of a fiduciary duty owed
to the estate and to
the plaintiff as beneficiary, by concluding a settlement agreement at
an undervalue.
[61]
Moreover, the plaintiff pleads that an objection by her under the
Administration of Estates Act would
not have altered the amount
already contracted for in the settlement agreement, and that what the
estate would receive had effectively
been fixed by that agreement.
That allegation may be disputed on the merits, but it cannot simply
be ignored for purposes of exception.
It must be accepted as true at
this stage.
[62]
Once that is accepted, the claim is not obviously premature. The
pleaded wrong is the conclusion of the settlement itself,
not the
later finalisation of the liquidation and distribution account.
Whether the plaintiff will ultimately establish ripeness,
patrimonial
loss, or causation is a matter for trial. The excipients have not
shown that the claim is legally bad on every possible
interpretation.
[63]
Thus the third ground of exception cannot be upheld.
Fourth
ground: alleged speculative and incoherent damages calculation
[64]
The excipients submit that the damages claim is illogical because the
settlement figure of R14 564 040.75 related to
a broader basket of
assets, including, on their case, interests in more entities than
those covered by the second buy-and-sell
agreement. They complain
that the plaintiff has not isolated what part of the settlement
amount related to the relevant interests
and has therefore compared
non-equivalent subject matter.
[65]
In this respect it is pointed out that in terms of annexure POC4, the
merx
that forms its subject matter is (i) a former partner's
interest in Die Vleispot partnership, and (ii) his "
rights
against the partnership
" (defined as a "
Claim
"),
as confirmed in paragraphs 19.2, 19.3 and 19.4 of the plaintiff's
amended particulars of claim.
[66]
The excipients argue that the plaintiff confirms in paragraph 30.1 of
her amended particulars of claim that clauses 2.1.1
to 2.1.3 of
annexure POC5 lists the merx that forms the subject matter of the
settlement agreement to be the "
the business and all claims
that [the third defendant/ Mr. de Mendonca's deceased estate] may
have against the business
"; being the deceased estate's 50%
interest in and claims against (i) the membership of Lewisham, (ii)
Die Vleispot partnership,
and (iii) Ricky & Jorge CC.
[67]
Further, Clause 2.1 of annexure POC5 records that "
the
purchase consideration due and payable ... for the acquisition of the
business and all claims
" is an agreed amount of
R14,564,040.75.
[68]
Accordingly it is argued that the
merx
under the first and
second buy-and sell agreements are not the same. The
merx
of
the second buy and sell agreement is limited to the deceased’s
partnership interest and claim in Die Vleispot partnership.
In
contrast, the merx in the settlement agreement includes a broader
range of assets,namely (i) the deceased’s partnership
agreement
in Die Vleispot and (ii) the deceased’s membership interests,
claimsand rights in two additional entities, namely
Lewisham
Properties CC and Ricky & Jorge CC.
[69]
In the aforesaid circumstances, it is argued by the excipients that
the plaintiff’s damages calculation is based
on non-equivalent
subject matter and is entirely speculative and without foundation.
Moreover, it is argued further that on the
face of it, the claim is
patently contradictory.
[70]
It may well be that the quantification of the plaintiff’s loss
may prove contentious and that the pleaded comparison
between what
should have been paid for the deceased’s interests in the
various businesses in the partnership may, after evidence,
require
refinement. But the law does not require a plaintiff to prove her
quantum in the particulars of claim.
Rule 18(10)
simply
requires that the quantum of the damages claimed be pleaded with
sufficient particularity to enable the defendant
to plead
thereto.
12
[71]
The plaintiff has pleaded the basis upon which damages have been
computed, namely that the estate received R14 564 040.75
under the
settlement instead of R20 million, as she states was expressly,
alternatively agreed, and that the difference is the
plaintiff’s
loss. That is not speculative. It is a pleaded method of
quantification which the excipients may dispute in their
plea and at
trial.
[72]
Whether the deceased had other assets which may affect the
quantification of the plaintiff’s damages need not be
decided
at this stage. In addition, whether the plaintiff can prove her
quantification of her damages claim is a matter for trial.
[73]
The fourth ground of exception therefore fails.
Fifth
ground: alleged vagueness in relation to fiduciary duty and fault
[74]
The excipients finally contend that the plaintiff’s allegations
concerning fiduciary duty are vague and embarrassing
because they do
not sufficiently identify the juridical basis of the duty, and
because, so it is said, the plaintiff fails properly
to plead whether
the breach was intentional or negligent.
[75]
I do not agree. The plaintiff pleads that the third defendant, in her
capacity as executrix and representative of the
first defendant, owed
fiduciary duties, under the common law, to the estate and to the
plaintiff as beneficiary; that those duties
included acting in the
best interests of the estate and beneficiary, exercising reasonable
care, skill and diligence, and ensuring
that the maximum value of the
benefit was received. She then pleads that the third defendant acted
contrary to those duties and,
further, it has been expressly pleaded
that the executrix’s conduct was intentional. The plaintiff has
also pleaded a misrepresentation
that the settlement amount was fair
which she relied upon to her detriment.
[76]
Again, whether the plaintiff will ultimately establish a fiduciary
duty as alleged, whether such duty was owed directly
to her, whether
negligence or
dolu
s is required, and whether the facts support
the pleaded conclusion are all matters for later determination. For
present purposes,
the pleading identifies the duty alleged, the
conduct said to constitute breach, the causative connection, and the
damages said
to result.
[77]
That is sufficient to enable the excipients to plead. The allegation
is not so vague that they do not know the case they
must meet.
[78]
The fifth ground must also fail.
Conclusion
[79]
The exceptions raised, viewed as a whole, are not directed at the
legal sufficiency of the pleading, but rather than
at the merits of
the plaintiff’s case. The excipients may ultimately succeed at
trial in demonstrating that the second buy-and-sell
agreement did not
operate as the plaintiff alleges; that no tacit term can be inferred;
that the settlement was justified; that
no actionable duty was owed
directly to the plaintiff; or that the damages are wrongly
calculated.
[80]
However, at the exception stage, the court does not ask whether
the plaintiff’s case is persuasive; it asks
whether the
plaintiff has pleaded a case recognised by law, supported by material
factual averments, which on some reasonable interpretation
may
entitle her to relief. In my view she has done so.
[81]
I accordingly conclude that none of the grounds of exception can be
sustained.
Costs
[82]
There is no reason to depart from the ordinary principle that costs
should follow the result. The plaintiff has successfully
resisted the
exception and is entitled to her costs.
Order
[83]
The following order is made:
The
first and third defendants’ exception is dismissed.
The
first and third defendants are directed to deliver their plea within
15 days of the date of this order.
The
first and third defendants are ordered, jointly and severally, the
one paying the other to be absolved, to pay the costs of
the
exception.
S
WENTZEL-THOMPSON
Judge
of the High Court
Gauteng
Local Division, Johannesburg
For
the Excipient:
GW
Amm SC
instructed
by
Glover
Kannieappan Attorneys
For
the Plaintiff:
L
Hollander
Andre
Pienaar and Associated (APA Africa)
[1]
Sun
Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996
(4) SA 176
(A) at 184G–I.
[2]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) 461 SCA at para [3].
[3]
Pretorius
and Another v Transport Pension Fund and Others
2019
(2) SA 37
(CC) para 15
.
[4]
Levitan
v Newhaven Holiday Enterprises CC
1991
(2) SA 297
(C) at 298A
.
[5]
Burroughs
Machines Ltd v Chenille Corp of SA (Pty) Ltd
1964
(1) SA 669
(W) at 670C–G.
[6]
Supra
at 676C
[7]
Picbel
Groep Voorsorgfonds (In Liquidation) v Somerville and Related
Matters
2013 (5) SA 496
(SCA) paras 26-28, 39.
[8]
Robin
v Guarantee Life Assurance Co Ltd
[1984] ZASCA 72
;
1984 (4) SA 558
(A) at 567C-D;
Union
Government (Minister of Railways and Harbours) v Faux Ltd
1916 AD 105
at 112.
[9]
Alfred
McAlpine & Son (Pty) Ltd v Transvaal Provincial Administration
1974 (3) SA 506
(A) at 531H-533B;
Wilkins
NO v Voges
[1994] ZASCA 53
;
1994 (3) SA 130
(A) at 136I-141D;
Desai
v Greyridge Investments (Pty) Ltd
1974 (1) SA 509
(A) at 522H-523A.
[10]
6th Ed, 2020, ch 10-p 328
[11]
Per
MacKinnon
LJ in Shirlaw v Southern Foundries
(1926)
Ltd (UK)
[12]
Per Nienaber in Wilkens NO v Voges
[1994] ZASCA 53
;
1994 (3) SA 130
A
[13]
Centriq
Insurance Company Ltd v Oosthuizen
2019
(3) SA 387
(SCA) at paras [17]-[18]
[14]
Desai
v
Greyridge
Investments
(Pty)
Ltd
1974
(1)
SA
509
(A)
522H-523A;
Group
Five Building Ltd v
Government
of the Republic of South Africa
[1993] ZASCA 4
;
1993
(2) SA 593
(A) 600C-E.
[15]
Rouwkoop
Caterers (Pty) Ltd v Incorporated General Insurance Ltd
1977
(3) SA 941
(C) 945G.
[16]
Union
Government (Minister of Railways and Harbours) v Faux Ltd
1916
AD 105
112
.
[17]
Robin
v Guarantee Life Assurance Co Ltd
[1984] ZASCA 72
;
1984
(4) SA 558
(A) 567C-D.
[18]
Pan
American World Airways Inc v SA Fire and Accident Insurance Co Ltd
1965
(3) SA 150
(A) 175C.
[19]
Deltmann
v Goldfain & Another
1975
(3) SA 385
(A) at 400A–B.
[20]
Sun
Packaging (Pty) Ltd v Vreulink
[1996] ZASCA 73
;
1996
(4) SA 176
(A) at 184G–I.
[21]
KPMG
Chartered Accountants (SA) v Securefin Ltd and Another
2009
(4) SA 399
(SCA) par [39].
[22]
Telcordia
Technologies Incorporated v Telkom SA Ltd
[2006] ZASCA 112
;
2007
(3) SA 266
(SCA) at
[91]
;
Rane Investments Trust v CSARS
2003
(3) SA 332
(SCA) at paras[26]-[27]