IN THE HIGH COURT OF SOUTH AFRICA
GAUT ENG DIVISION, PRETORIA
(1) REPORTABLE: YES/ NO
(2) OF INTEREST TO OTHER JUDGES: YES / NO
(3) REVISED: YES
25 March 2026
DATE SIGNATURE
Case number: 2024-073367
In the matter between:
TEMBEKA KOEKIE MDLULWA
and
PSR SOLUTIONS PROPRIETARY LIMITED
PHELADU SUZAN RAPHELA
KAGISO SETSESE
JUDGMENT
Plaintiff
First Defendant
Second Defendant
Third Defendant
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VAN ROOYEN, AJ:
Introduction:
[1] This is an opposed exception against Plaintiff’s amended particulars of claim
that was filed on 8 January 20251.
[2] First, Second and Third Defendants filed an exception on the basis that
Plaintiff’s particulars of claim lack averments necessary to sustain a cause of
action2.
Plaintiff’s claim:
[3] Plaintiff instituted a contractual claim for damages and alternative claims
against the three Defendants for payment in the amount of R3 345 211.00. The
factual basis for the claims is an alleged misrepresentation made by
Defendants to Plaintiff during negotiations that led to the conclusion of an
agreement between the parties.
[4] The alternative claims are based on section 424 of the Companies Act, No 61
of 1973 and section 20(9) as well as sections 22 and 218 of the new Companies
Act, No 71 of 2008.
Background Facts:
[5] The facts leading to the claim are rather peculiar and create a suspicion of an
unlawful transaction. According to the particulars of claim the facts were
pleaded as follows:
1 Case Lines 004-49
2 Case Lines 003-8
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5.1. Plaintiff was telephonically introduced to Third Defendant who indicated
that he acted on behalf of First Defendant.
5.2. An oral agreement was reached between the parties in terms whereof
Plaintiff would advance a loan of R19,9 million to First Defendant,
alternatively Second Defendant, further alternatively Third Defendant.
The loan would allegedly enable First Defendant to perform a tender for
personal protective equipment to be delivered to an end user.
5.3. Plaintiff paid the amount referred to above, directly to the suppliers of
First Defendant to facilitate the delivery of the equipment.
5.4. First Defendant, alternatively Second Defendant alternatively Third
Defendant would repay the loan, with interest, to Plaintiff in a total
amount of R33 million.
5.5. Plaintiff paid the amount to the supplier and a few days later Defendants
repaid the amount of R33 million to Plaintiff.
5.6. Defendants allegedly failed to fulfil their tax obligations in terms of the
above transaction and SARS subsequently obtained a provisional
preservation order against Plaintiff, First and Second Defendants in
terms of Section 163 of the Tax Administration Act, 28 of 2011.
5.7. All Plaintiff’s realizable assets were subject to the provisional
preservation order, which order was confirmed.
5.8. Plaintiff subsequently reached an agreement with SARS (which
agreement was made an Order of Court) in terms whereof Plaintiff’s
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preserved funds in the amount of R3 345 211.00 will be utilized in partial
settlement of the alleged tax debt of First Defendant, whereupon SARS
released Plaintiff from the preservation order3.
5.9. The Plaintiff now claims the amount of R3 345 211.00 from the
Defendants on the bases as set out above.
The Exception:
[6] Defendants filed an exception in terms of Rule 23 against Plaintiff’s particulars
of claim on the basis that it lacks averments necessary to sustain a cause of
action. T he underlying basis for the exception is that the payment made by
Plaintiff, ex facie the particulars of claim, primarily intended to benefit Plaintiff
and/or that Plaintiff had no lawful obligation to make the payment on behalf of
First Defendant to SARS.
[7] When considering the legal requirements to sustain a claim for contractual
damages, based on negligent misrepresentation, a plaintiff must allege (and
subsequently prove) that:
7.1. that there was a representation by defendant or his agent
7.2. that such representation was false
7.3. that the representation was wrongful
7.4. that the representation was made by the defendant negligently
7.5. that the representation was material and would have influenced a
reasonable person to enter into the agreement
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7.6. that the representation was intended to induce the plaintiff to enter into
the agreement
7.7. that the representation did, in fact, induce the contract
7.8. if damages are claimed, the quantum thereof.
[8] The approach to be followed when considering an exception in terms of Rule
23 of the Uniform Court Rules is trite. An exception has been described as a
legal objection to the opponent’s pleading: It complains of a defect inherent in
the pleading – admitting for the moment (at the stage of exception) that all the
allegations in the summons or plea are true. The Court, to allow an exception,
must be of the view that, even with such admission, the pleading does not
disclose a cause of action or a defence, as the case may be.
[9] It follows that that a plaintiff’s particulars of claim should contain averments
alleging all material facts necessary to give rise to an enforceable claim, failing
which the pleading is excipiable.
[10] The Court is careful not to allow its own skepticism, relating to the lawfulness
of the eventual transaction resulting from the agreement between the parties,
to influence the assessment on the question of whether the averments in the
particulars of claim, if true, sustain a cause of action.
[11] When considering the particulars of claim, it appears that all allegations
necessary to sustain a claim for damages have been made.
[12] As already stated, th is Court has concerns about the lawfulness of the
transaction envisaged in the agreement between the parties. The Court further
has reservations whether the Plaintiff will be able to prove the allegations in the
particulars of claim. The Court cannot, however, at this stage find that the
allegations are manifestly false.
[13] Regarding the issue of costs, and considering the reservations expressed, I am
of the view that the Trial Court will be in a better position to deal with the issue
of costs.
[14] With reference to the alternative claims, and particularly in view of the approach
set out above, I will not deal with the exception in detail to those claims.
[15] I therefore make the following order:
15.1. The exception is dismissed.
15.2. The Defendants are ordered to deliver their plea to the Plaintiff's
amended particulars of claim within 20 days of date of this order.
15.3. Costs are reserved for determination by the Trial Court.
/ V
MVAN ROOYEN
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
This judgment was prepared and authored by the judge whose name is reflected and
is handed down electronically by circulation to the parties/their legal representatives
by email and by uploading it to the electronic file of this matter on Caselines. The
date for hand-down is deemed to be 20 March 2026.
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APPEARANCES:
For the Plaintiff : Adv L VR van Tonder
Instructed by : Faber Goertz Ellis Austin Inc.
For the Defendants : Mr KJ van Huyssteen
Instructed by : Fluxmans Attorneys
Matter heard on : 5 February 2026
Judgment date : 25 March 2026