IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Reportable
Case no: A196/2025
In the matter between:
WILLEM DE SANDERS GREEF NO FIRST APPELLANT
RUDOLPH PHILIP BOTHA NO SECOND APPELLANT
In their capacities as Trustees of the
W de S Greef Family Trust
and
GPP PROPERTIES CC FIRST RESPONDENT
THE REGISTRAR OF DEEDS, CAPE TOWN SECOND RESPONDENT
Coram: MANTAME J, O’BRIEN AJ et JONKER AJ
Heard: 20 March 2026
Delivered: 11 May 2026
Summary: Exception - particulars of claim - Subdivision of Agricultural
Land Act 70 of 1970, s 3(e)(ii) and s 6A - whether settlement agreement void for
contravening s 3(e)(ii) - particulars of claim pleaded no primary facts in support of
the interpretation of the settlement agreement upon which the cause of action
depended - distinction between facta probanda and facta probantia does not
relieve a plaintiff of the obligation to plead the primary material facts - exception
upheld on pleading grounds - appeal dismissed - leave to amend pleading
allowed.
ORDER
1 The appeal is dismissed with costs including the costs of two counsel,
where so employed , with senior counsel's fees taxable on scale C, and
junior counsel on scale A.
2 The order of the High Court is confirmed save for para 2 of the order,
which is substituted as follows:
‘2. The Trust is given leave, if so advised, to deliver its intention to
amend its particulars of claim within ten days of the date of this
order.’
JUDGMENT
Jonker AJ (Mantame J et O’Brien AJ concurring):
Introduction
[1] This is an appeal by the trustees of the W De S Greef Family Trust ( ‘the
Trust’) against the judgment of Parker AJ, delivered on 13 September 2024, in
which the court a quo upheld an exception raised by the first respondent, GPP
Properties CC ( ‘GPP’), against the Trust’s particulars of claim. The court a quo
found that the particulars of claim failed to disclose a valid and enforceable cause
of action. In arriving at that conclusion, the court a quo reasoned, first, that the
Trust’s particulars of claim failed to set forth sufficient averments to sustain a
cause of action and would need to be more elaborate; and, second, that the court
order of 2014 remained binding on all parties unless and until set aside, so that
the proper enquiry was whether the Trust had established adequate grounds for
the rescission of that order.
[2] The court a quo did not resolve the substantive question of whether s
3(e)(ii) of the Subdivision of Agricultural Land Act 70 of 1970 ( ‘the Act’) applies to
servitudes, nor did it definitively determine whether the grazing right was in
respect of a portion or the whole of Volkers River, leaving those questions
expressly open for determination at trial. The court a quo further granted the
Trust leave to amend within ten days and awarded costs against the Trust,
including the costs of two counsel, on scale B for senior counsel and scale A for
junior counsel.
[3] On 7 October 2024 the Trust applied for leave to appeal to the court a
quo. That application was heard on 31 October 2024 and dismissed by the court
a quo on 20 February 2025, with a further costs order against the Trust. The
Trust then petitioned the Supreme Court of Appeal. On 22 May 2025 the
Supreme Court of Appeal ordered that leave to appeal be granted to this Full
Court. It set aside the costs order made by the court a quo in dismissing the
leave to appeal application and directed that the costs of th e application for leave
to appeal before both the court a quo and the Supreme Court of Appeal be costs
in the appeal. The matter accordingly came before this Court.
[4] The dispute has its origin in litigation between the Trust and GPP that was
resolved by means of a settlement agreement. On 17 November 2014, that
settlement agreement was made an order of court ( ‘the order of 2014’). In giving
effect to the order of 2014, a permanent servitude of grazing was subsequently
registered over Portion 7 (a portion of Portion 3) of the Farm Volkers River No.
244, Blue Crane Route Municipality, Division Somerset East, Eastern Cape
Province (‘Volkers River’), which is a cadastral un it registered as a whole in the
Deeds Office, on 3 March 2021.
[5] The Trust thereafter instituted action against GPP and the Registrar of
Deeds for, in substance, the rescission of the order of 2014 and the
deregistration of the registered servitude. The foundation of the Trust's cause of
action is that the settlement agreement was void from its inception because it
contravened s 3(e)(ii) of the Act, in that the settlement agreement, upon a proper
interpretation, purported to grant a permanent right of grazing in respect of a
portion of agricultural land as contemplated in that provision, without the prior
consent of the Minister of Agriculture. GPP excepted to the particulars of claim
on the basis that they disclosed no valid cause of action.
[6] GPP raised four grounds of exception. At the hearing before the court a
quo, GPP pursued only the first and third grounds. The court a quo upheld the
exception and afforded the Trust the opportunity to amend. It is from that
decision that the Trust now appeals.
The reasoning of the court a quo
[7] The court a quo upheld the exception on two principal bases. The first and
primary basis was that the Trust’s particulars of claim were insufficiently pleaded:
they did not set forth the averments necessary to sustain a cause of action and
would need to be more elaborate. The court a quo did not invoke or analyse the
facta probanda/facta probantia distinction by name, but concluded broadly that
the particulars of claim, as formulated, did not present a sustainable case. The
second basis was that the court order of 2014 rem ained binding on all parties
unless and until it was set aside, and the Trust was accordingly required to make
out a proper case for rescission rather than simply attacking the underlying
settlement agreement. The court a quo reasoned that to allow the Trust to ignore
the court order in the manner it sought to do would be inconsistent with the rule
of law.
[8] Significantly, however, the court a quo expressly declined to resolve the
substantive legal questions that underlie the Trust’s cause of action. She did not
decide whether s 3(e)(ii) of the Act applies to servitudes, nor did she determine
whether the grazing right related to a portion or the whole of Volkers River,
observing that those questions remain to be seen when ventilated at the trial.
The exception was therefore upheld on the comparatively narrow ground that the
pleadings were deficient, not on the basis that the Trust’s case was bad in law.
The Trust’s pleaded case
[9] Since the appeal turns critically on what was and was not pleaded, it is
necessary to set out the relevant portions of the particulars of claim with some
care.
[10] In paragraph 9 of the particulars of claim, the Trust pleads that on 17
November 2014, the settlement agreement was made an order of court, a copy
of which is attached as POC1. In paragraph 10.1, the central averment upon
which the Trust's entire cause of action rests, the Trust pleads that the settlement
agreement, on a proper interpretation, read in context and having regard to
admissible evidence concerning its purpose, background, subsequent conduct,
and implementation, purported to grant a permanent servitude of grazing in
favour of the Trust in respect of a portion of agricultural land as contemplated in s
3(e)(ii) of the Act, without the prior consent of the Minister.
[11] In paragraph 12 of the particulars of claim, introduced with the words ‘ in
the premises ’, the Trust then pleads the following legal conclusions: that the
settlement agreement contravenes the prohibition in s 3(e)(ii) of the Act and is
therefore illegal, void and of no force and effect; that its terms do not accord with
the law and are at odds with public policy; that it did not comply with the legal
requirements for incorporation as a court order; that the court erred in making it
an order of court; and tha t the order of 2014 ought to be rescinded. Paragraphs
13 and 14 deal with the implementation of the order and paragraph 16 again
pleads, as a fact, that the Minister did not consent to the registration of the
servitude under s 6A of the Act.
[12] The Trust's position, maintained both before the court a quo and before
this Court, is that those averments are sufficient to disclose a cause of action. It
contends that paragraphs 10.1 through to 14 of the particulars of claim
collectively establish a viable cause of action and that the court a quo was wrong
to hold otherwise.
The Trust’s arguments on appeal
[13] Before this Court, the Trust takes issue with four specific findings and
conclusions in the judgment of the court a quo. It contends that (a) the court a
quo erred in finding that the settlement agreement could not be attacked until the
order of 2014 was set aside, and that the court that granted the order was
entitled to make it; (b) the court a quo was wrong to find that the Trust was
required to plead and tender restitution as part of its cause of action; (c) the court
a quo erred in finding that the particulars of claim were insufficiently elaborate
and failed to disclose a cause of action; and (d) the court a quo was wrong to
find, implicitly, that the Trust’s case was bad in law. Each of these grounds
requires this Court to examine not merely the correctness of the conclusion
reached by the court a quo , but the reasoning by which that conclusion was
reached.
[14] The Trust advanced its case along three lines of argument. I deal with
each in turn before expressing my conclusions.
[15] The first line of argument concerns the distinction between facta probanda
and facta probantia . The Trust contends that it was required to plead only the
primary material facts constituting its cause of action, the facta probanda, and
was not obliged to plead the subsidiary evidentiary facts, the facta probantia, by
which those primary facts would be proved at trial. The Trust submits that
paragraph 10.1 of the particulars of claim adequately pleads the facta probanda
by identifying the existence of admissible contextual and background evidence
and expressing the Trust's intention to place such evi dence before the trial court.
Accordingly, the Trust maintains, the court a quo impermissibly deprived it of the
opportunity to present that evidence at trial by upholding the exception
prematurely.
[16] The second line of argument invokes the approach to contractual
interpretation described in Vermeulen1 and Tembani2. The Trust contends that
contextual evidence is always relevant to the interpretation of a contract, as a
matter of course, and whether or not the words of the contract are ambiguous.
The court must therefore take context and purpose into account when
interpreting any document. It follows, so the argument goes, that a court deciding
an exception should be slow to interpret a contract in isolation from potentially
admissible contextual evidence, and should rather permit the matter to proceed
to trial where such evidence may be led. The Trust submits that the court a quo
failed to apply these principles correctly.
[17] The third line of argument concerns the substantive illegality. The Trust
submits that the granting of a permanent right of grazing by means of a personal
right agreed upon in the settlement agreement, if such right relates to a portion of
agricultural land as contemplated in s 3(e)(ii) of the Act, is prohibited by that
provision from the very moment the agreement is concluded. On that basis, the
settlement agreement is illegal and constitutes a nullity, and ought not to have
been made an order of court in 2014. In support of this proposition, the Trust
relies, on the principle that the law will not preserve a transaction which it has
prohibited, and that an agreement concluded in contravention of a statutory
1Vermeulen v Goose Valley Investments (Pty) Ltd [2001] (3) All SA 350 (A).
2Tembani and others v President of the Republic of South Africa and Another 2023 (1) SA 432
(SCA).
prohibition is void from its inception3. The Trust accepts, as it must, that the order
of 2014 remains binding until set aside, which is the reason it has sought a
rescission order as primary relief. The appeal falls to (be) decided on the
pleading ground. It is therefore not necessary for this Court to determine the
substantive question whether s 3(e)(ii) applies to servitudes or whether the
servitude related to a portion or the whole of Volkers River.
GPP’s arguments on appeal
[18] GPP resists the appeal on the following principal grounds. First, that the
particulars of claim disclose no cause of action because they are devoid of any
pleaded primary facts in support of the interpretation of the settlement agreement
upon which the Trust’s case depends. The invocation of interpretive methodology
and the bare assertion of an interpretive conclusion do not constitute a pleading
of material facts, and the distinction between facta probanda and facta probantia
does not relieve the Trust of its obligation to plead the primary facts themselves.
[19] Second, that even accepting the Trust’s asserted interpretation of the
settlement agreement as correct, s 3(e)(ii) of the Act does not apply to
servitudes. The legislature addressed servitudes specifically and separately
through s 6A, inserted by the 1977 amending Act for that express purpose, and s
3(e)(ii) is confined to transactions involving the subdivision and disposal of
portions of agricultural land by way of personal rights akin to sale.
3 Legator McKenna Inc and Another v Shea and Others 2010 (1) SA 35 (SCA) at para 29.
[20] Third, that the registered servitude of grazing is in any event a general
servitude encumbering the whole of Volkers River and does not constitute a right
to a portion of the property within the meaning of s 3(e)(ii).
[21] Fourth, that s 6A, even if relevant, does not invalidate the underlying
obligatory agreement and provides no basis for setting aside the court order of
2014. GPP accordingly submits that the court a quo was correct and the appeal
should be dismissed with costs of two counsel.
The law relating to exceptions
[22] The principles governing exceptions are well established. As concisely
articulated in the judgment by Makgoka J in Living Hands4: The Court will accept,
as true, the allegations as pleaded by the plaintiff to assess whether they
disclose a cause of action. The object of an exception is not to embarrass one’s
opponent but to dispose of a case or portion thereof in an expeditious manner.
The purpose is to raise a substantive question of law that may settle the dispute.
An excipient can attack a pleading on the ground that it is either vague and
embarrassing or that it does not disclose a cause of action. Where, as here, the
exception is directed at the failure to disclose a cause of action, the court accepts
all allegations of fact made in the pleading as correct and determines whether, on
those facts, a cause of action is disclosed on any reasonable interpretation. The
onus rests on the excipient to establish that the pleading is excipiable on every
reasonable interpretation of the facts.
4 Living Hands (Pty) Ltd v Ditz and Others 2013 (2) SA 368 (GSJ) at para 15.
[23] Two principles of particular significance in this matter deserve emphasis.
The first is that a party is required to plead, with sufficient clarity and particularity,
the material facts upon which it relies for the conclusion of law it wishes the court
to draw. It is not sufficient to plead a conclusion of law without pleading the
underlying material facts upon which that conclusion rests. This was confirmed in
Trope5 and Mabaso6.
[24] The second is that while the court assumes the truth of everything alleged
for the purposes of an exception, this applies only to facts that are actually
alleged. Conclusions of law are not facts that are assumed to be correct. As the
test on exception was recently again confirmed by the Supreme Court of Appeal
in Venator Africa7, where Mabindla-Boqwana JA confirmed:
‘It is trite that it is for an excipient to show that on every reasonable interpretation
of the facts, the pleading is excipiable. On interpretation, ”the question is not
whether the meaning contended for by the [plaintiff] is necessarily the correct
one, but whether it is a reasonably possible one”. The excipient must satisfy the
court that the conclusion of law set out in the particulars of claim is unsustainable
on every interpretation that can be put on those facts. It is important to note that
“the facts are what must be accepted as correct; not the conclusions of law”.’
5Trope and Others v South African Reserve Bank 1993 (3) SA 264 (A) at 267 –268 and
273.Verme
6Mabaso v Felix 1981 (3) SA 865 (A) at 875A–H.
7Venator Africa (Pty) Ltd v Watts and Another 2024 (4) SA 539 (SCA) at para 20.
Applying the law to the issues
Facta probanda and facta probantia
[25] The distinction between facta probanda and facta probantia is a well -
established feature of our law of pleading. The facta probanda are the primary or
essential facts that must be established to constitute the cause of action, the
facts without which the cause of action does not exist. The facta probantia are
the subsidiary or evidentiary facts by which the facta probanda will be proved at
trial. A plaintiff is required to plead the former but not the latter 8. This principle
protects a plaintiff from being required to set out in its pleadings the full evidential
edifice by which it proposes to prove its case at trial.
[26] The Trust invokes this distinction in support of the argument that
paragraph 10.1 of its particulars of claim is adequate. It says that by pleading that
the settlement agreement is to be interpreted ‘in context and in light of admissible
evidence’ regarding purpose, background, subsequent conduct and the manner
of implementation, it has adequately pleaded the facta probanda relating to the
interpretive exercise, namely, that admissible contextual evidence exists and will
be adduced at trial.
[27] I cannot accept this argument. The distinction between facta probanda
and facta probantia does not relieve a plaintiff of the obligation to plead the
primary facts of its case. It merely relieves it of the obligation to plead the
8Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 838A-839B.
evidence by which those primary facts will be established. The question,
therefore, is what the primary facts of the Trust's case are.
[28] The Trust’s cause of action depends on the proper interpretation of the
settlement agreement. It was therefore required to plead the primary facts that
sustain that interpretation. Those facts must include, at a minimum, that the
agreement, properly construed, granted a servitude of grazing over a defined
portion of agricultural land, as opposed to the whole, and that such a grant falls
within the prohibition in s 3(e)(ii) of the Act.
[29] Paragraph 10.1 does not plead those primary facts. It invokes a method of
interpretation and asserts a conclusion. It does not identify the provisions of the
agreement relied upon, the meaning contended for, or the facts said to sustain
that meaning. It does not plead any specific contextual fact, background
circumstance, or subsequent conduct that supports the interpretation advanced.
[30] A statement that evidence will be led at trial does not amount to a pleading
of fact. Pleading that admissible evidence exists, and will be adduced, is not a
substitute for pleading the primary facts themselves. What is required is a
statement of what those facts are. The Trust has not done so.
[31] The Trust also relied on the dictum in Garlick9. I accept the principle stated
there. However, it does not assist the Trust. The dictum addresses whether it is
necessary to plead that extrinsic evidence will be led. It does not relieve a
pleader of the obligation to plead the material facts to which that evidence will
9 Garlick v Smartt and Another 1928 AD 82 at 87.
relate. These are distinct requirements. The Trust conflates them. It has not
pleaded the primary facts and has instead relied on a general reference to
evidence, which does not cure the defect, which is precisely the substitution that
Garlick does not authorise.
[32] The purpose of the pleadings is to define the issues between the parties
and the court, and to give fair notice of the case that must be met. As stated in
Fischer10, a pleading that says, in effect, ‘ we will lead evidence at trial about
various contextual matters that will support our interpretation ’ gives the opponent
no notice of what primary facts are alleged and no basis upon which to formulate
a plea. It fails at the threshold of what a pleading is required to achieve.
[33] The Trust contends that the court a quo erred in upholding the exception
on this basis. The submission is that the court a quo impermissibly deprived the
Trust of the opportunity to lead contextual evidence at trial, and that the court a
quo was therefore premature in finding the pleadings deficient. That criticism is,
however, misdirected. The court a quo was correct to uphold the exception on
the pleading point, and her conclusion is confirmed, albeit by a different and
more direct route, by this Court. The court a quo concluded, broadly, that the
particulars of claim did not set out the necessary averments; this Court holds
that, applying the facta probanda/facta probantia distinction, the particulars of
claim failed to plead even the primary facts upon which the Trust’s cause of
action depends. The distinction between the two types of facts does not, as the
Trust suggests, save the pleading: it presupposes that the primary facts have
10 Fischer and Another v Ramahlele and Others 2014 (4) SA 614 (SCA) at para 13.
been pleaded, while excusing a plaintiff from pleading the evidential substructure
by which those primary facts will be proved. Paragraph 10.1 of the particulars of
claim does not plead the primary facts at all. In The court a quo was correct, and
the Trust’s criticism of it on this ground must fail.
Contractual interpretation: Vermeulen and Tembani argument
[34] The Trust's second argument requires closer examination of the decisions
in Vermeulen and Tembani.
[35] In Vermeulen, the Appellate Division expressed the view that courts
should, as a general matter, be cautious about upholding exceptions that require
the interpretation of contractual provisions, where the true meaning of the
contract might only become apparent once the surrounding circumstances and
the background against which it was concluded have been placed in evidence.
The consideration underlying this caution is the risk of misinterpreting a
document by reading it in a factual vacuum. Where a contract is ambiguous, or
where its meaning is genuinely dependent on context, the exception stage,
where no evidence is led, may not be the appropriate occasion to resolve the
interpretive dispute.
[36] The Trust also relies on Tembani and University of Johannesburg11 for the
broader proposition that contextual interpretation of a document is always
11University of Johannesburg v Auckland Park Theological Seminary and Another 2021 (6) SA 1
(CC).
required, not only when the document is ambiguous, and that context and
purpose must be considered as a matter of course. In University of
Johannesburg, the Constitutional Court affirmed that the process of interpretation
is one of determining the meaning of the words used in their context, having
regard to the purpose of the provision and the background against which the
document was concluded, a process that does not require the text to be
ambiguous before context is considered.
[37] I accept both propositions as accurate statements of the current approach
to contractual interpretation. The caution expressed in Vermeulen is sound and I
do not depart from it. Courts should indeed be slow to resolve interpretive
disputes at the exception stage where the correct interpretation of a contract may
depend on admissible contextual evidence not yet before the court.
[38] However, the principle in Vermeulen has no application in the present
circumstances, for the following reasons.
[39] First, Vermeulen presupposes that facts have been pleaded that raise a
genuine and reasonably arguable interpretive dispute. That is a case in which the
plaintiff has pleaded the primary facts from which an alternative interpretation of
the contract may plausibly arise, leaving the resolution of that dispute to trial. As
this Court has found, the Trust has not pleaded any primary facts at all in support
of its interpretation. There is accordingly no interpretive dispute before the court
on the pleadings, as the interpretat ion advanced is unsupported by any pleaded
fact. Vermeulen protects a plaintiff who has pleaded facts capable of sustaining a
particular interpretation, even if those facts require proof at trial. It does not assist
a plaintiff who has substituted the primary facts of its case with the conclusion of
an interpretive exercise it seeks to undertake at trial.
[40] The Trust further submits that the court a quo erred in interpreting the
settlement agreement in isolation and failing to take proper account of potentially
admissible contextual evidence. That submission must also fail. The court a quo
did not resolve the interpretive question at all . She expressly left it open for trial.
This Court, however, having found that no primary facts were pleaded capable of
raising a genuine interpretive dispute, finds it unnecessary to defer the
interpretive question in the mann er urged by the Trust. The caution reflected in
the Vermeulen line of authority against resolving interpretive disputes at the
exception stage presupposes that a genuine dispute of interpretation has been
raised on the pleadings. As has been found above, it has not. There is
accordingly no interpretive question before this Court that requires the trial
court’s consideration. On this further ground too, the approach of the court a quo
is confirmed, albeit by reasoning that differs from that adopted by the court a quo.
Section 3(e)(ii) and section 6A applicability
[41] GPP also raised as a ground of opposition the question whether s 3(e)(ii)
applies to servitudes at all. The legislative history of the Act formed a central
feature of the competing arguments. The Act was originally enacted in 1970 with
the primary object of preventing the fragmentation of agricultural land into
uneconomic units. In its original form, s 3 prohibited subdivision and the sale or
disposal of portions of agricultural land without the minister’s written consent, but
made no provision for servitudes. In 1972, Act 55 of 1972 extended the scope of
s 3 by introducing prohibitions in respect of undivided shares and certain long -
term leases. In 1974, the section was further expanded to include, among other
transactions, what is now s 3(e)(ii), which prohibits the granting of a right to a
portion of agricultur al land for a period of ten years or more without ministerial
consent. At that stage the Act still made no mention of servitudes. The legislature
addressed servitudes for the first time only in 1977, when Act 12 of 1977 inserted
s 6A as a new and freestanding provision. Section 6A prohibits the registration of
any servitude over agricultural land without the Minister’s written consent, subject
to specified exceptions in subsections (a) and (b). The preamble to the 1977
amending Act records that s 6A was inserted specifically to regulate servitudes.
[42] The Trust’s case, in broad outline, is that the settlement agreement falls
within s 3(e)(ii) because it purported to grant a permanent right of grazing in
respect of a portion of agricultural land as contemplated by that provision. On the
Trust’s argument, the phrase ‘ right to such portion’ is broad enough to
encompass the grant of a grazing right over a defined part of the farm, and the
practical effect of such a grant, the long -term devotion of a defined portion of
agricultural land to a use determined by a party other than the owner, without the
Minister’s oversight, falls squarely within the mischief the Act was designed to
address.
[43] The Trust further contends that s 3(e)(ii), which operates at the level of the
obligatory agreement, and s 6A, which operates at the level of registration,
address different stages of the same transaction and are not mutually exclusive.
On this argument, both may apply concurrently, and the fact that s 6A was
introduced to regulate servitudes does not mean that a transaction involving a
servitude over a portion of agricultural land falls outside s 3(e)(ii).
[44] GPP’s answer is that servitudes are regulated exclusively by s 6A, which
was introduced for that express purpose, and that s 3(e)(ii) does not extend to
servitudes. GPP relies on the legislative architecture: the legislature had s 3(e)(ii)
before it when it inserted s 6A in 1977, yet chose not to amend s 3 to include
servitudes. Instead it enacted a structurally separate provision. GPP further
contends that s 6A and s 3(e) operate at different levels, s 6A at registration, s
3(e)(ii) at the obligatory agreement, and that this difference in operation reflects a
deliberate legislative choice to regulate servitudes through the mechanism of
registration control rather than through the invalidation of the underlying
agreement. On GPP’s argument, the settlement agreement, as an agreement to
register a servitude, is not the kind of transaction that s 3(e)(ii) was designed to
govern, and the only provision of the Act that bears upon it is s 6A.
[45] It is not necessary for this Court to resolve the question definitively, and it
declines to do so.
The question of restitution
[46] The Trust argued, both before the court a quo and before this Court, that
the doctrine of restitutio in integrum does not apply where no valid contract came
into existence, that is, where the contract is void ab initio , and that it was
accordingly not necessary for the Trust to plead and tender restitution in order to
complete its cause of action. It is unnecessary to determine this argument. This
Court has dismissed the appeal on the ground that the particulars of claim fail to
plead the primary facts necessary to establish the cause of action, not on the
basis that the settlement agreement is or is not void ab initio. The question of
restitution accordingly does not arise for determination on this appeal.
Conclusion
[47] For these reasons the court a quo cannot be faulted for upholding the
exception. The court a quo correctly identified that the particulars of claim were
insufficiently pleaded to sustain a cause of action and that the court order of 2014
remained binding until properly set aside. This Court confirms that conclusion.
The particulars of claim fail to plead the primary facts. That deficiency is fatal to
the appeal.
[48] The substantive questions, whether s 3(e)(ii) of the Act applies to
servitudes and whether the servitude relates to a portion or the whole of Volkers
River, do not require determination and are left open. The appeal must
accordingly fail. It was submitted that the order of the court a quo, granting leave
to amend, must be substituted to provide for a new operative date. I agree.
Costs
[49] There is no reason to depart from the ordinary rule that costs follow the
result. GPP has been successful and is entitled to its costs. The matter justified
the employment of two counsel. Senior counsel's fees taxable on scale C, and
junior counsel’s fees on scale A.
Order
[50] I propose the following order be made:
1 The appeal is dismissed with costs including the costs of two counsel,
where so employed, with senior counsel's fees taxable on scale C, and
junior counsel on scale A.
2 The order of the High Court is confirmed save for para 2 of the order,
which is substituted as follows:
‘2. The Trust is given leave, if so advised, to deliver its intention to
amend its particulars of claim within ten days of the date of this order.’
________________________
EM JONKER
ACTING JUDGE OF THE HIGH COURT
I agree, and it is so ordered.
________________________
BP MANTAME
JUDGE OF THE HIGH COURT
I agree.
________________________
S O’BRIEN
ACTING JUDGE OF THE HIGH COURT
Appearances
For the Appellants: DJ van der Walt SC
Instructed by: Spangenberg Zietsman & Bloem Attorneys
For the First Respondent: J Butler SC and L Liebenberg
Instructed by: Nel Mentz Steyn Ellis Inc.
For the Second Respondent: No appearance