About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
You are here:
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2026
>>
[2026] ZAGPPHC 416
|
Noteup
|
LawCite
F Tech Services (Pty) Ltd v Lombard (088014/2025) [2026] ZAGPPHC 416 (29 April 2026)
Download original files
PDF format
RTF format
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO:
088014/2025
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED.
DATE 29/04/2026
SIGNATURE
In
the matter between:
F
TECH SERVICES (PTY)
LTD
Plaintiff
and
CHRISTOFFEL
BENJAMIN LOMBARD
Defendant
The
judgment was prepared and authored by the Judge whose name is
reflected and is handed down electronically by circulation to
the
parties’ legal representatives by e-mail and uploading it to
the electronic file of this matter on Caselines. The date
and time of
hand-down is deemed to be 9:00 on 29 April 2026.
JUDGMENT
DE VILLIERS AJ
[1] This
matter concerns an exception taken by the defendant to the
plaintiff’s particulars
of claim on the grounds that they lack
averments necessary to sustain a cause of action.
[2] The
exception, as set out in the notice of exception, is that the
plaintiff’s claim is for
repayment of R232 635.00 pursuant to
the alleged breach and cancellation of an agreement between the
parties, but that the particulars
of claim do not set out the
requisite allegations for the lawful cancellation of that agreement,
with the result that the plaintiff’s
purported cancellation is
bad in law and does not entitle it to repayment of the amount
claimed.
[3] At
the hearing, heads of argument on behalf of the excipient were handed
up. The heads seem to
have been uploaded on the court online system
timeously , but did not appear on caselines on the date of hearing.
The heads formulate
the excipient’s complaint with greater
precision than appears from the notice of exception itself. In
substance, the excipient
contends that because the plaintiff’s
claim is one for restitution consequent upon cancellation, the
plaintiff was required
to plead not merely breach and an election to
cancel, but also the material facts showing that the right to cancel
had accrued,
whether by reason of a
lex commissoria
, or a
material breach, or some other legally sufficient basis.
[4] In
my view, it would be in the interest of justice to accept the heads
of argument. They merely
sharpen the legal basis of the exception as
advanced in the notice of exception.
[5] The
plaintiff pleads an oral agreement concluded on or about 18 July
2024. In terms of that agreement,
the plaintiff ordered 50 mm grey
bevel pavers for delivery and installation at a site in Refengkgotso,
Vaal Triangle. The defendant
accepted the order and issued an invoice
in the amount of R238 600.00. The defendant required upfront payment
of the invoiced amount,
less 2.5%.
[6] The
plaintiff further pleads, in paragraph 3.4 of the particulars of
claim, that it was an express,
alternatively tacit, further
alternatively implied term of the agreement that, upon receipt of
such payment, the defendant would
deliver the bevel pavers and
commence with the installation.
[7] The
plaintiff then pleads that it paid the sum of R232 635.00, being the
invoiced amount less
2.5%, and that despite due and proper payment
the defendant failed and/or refused and/or neglected to deliver the
pavers or to
commence with the installation.
[8]
Paragraph 6 of the particulars of claim provides: ‘As a result
of the Defendant’s
breach as set out above, the Plaintiff
hereby cancels the agreement.’
[9] The
plaintiff further pleads that on 5 June 2025, through its attorneys
of record, it addressed
a letter of demand to the defendant demanding
repayment of the amount of R232 635.00, annexing that letter as
annexure ‘FT003’.
[10] The first
sentence of paragraph 2 of that letter records that, at all relevant
times, it was an essential
term of the order that the pavers would be
delivered immediately and the work would commence upon payment.
[11] The issue is
not whether the plaintiff has pleaded the word ‘material’.
Nor is the issue whether
the particulars of claim could have been
pleaded with greater elegance or precision. The true question is
whether, accepting the
pleaded facts as correct and reading the
pleading as a whole, including the documents properly incorporated
therein, the plaintiff
has pleaded facts which are reasonably capable
of sustaining the conclusion that it became entitled to cancel the
agreement and
to claim restitution.
[12] If the answer
to that question is yes on any reasonable interpretation of the
pleading, the exception cannot
succeed. An excipient must satisfy the
court that upon every interpretation which the particulars of claim
can reasonably bear,
no cause of action is disclosed.
[13] An exception
that a pleading lacks averments necessary to sustain a cause of
action is directed at the legal
sufficiency of the pleading. For
purposes of deciding such an exception, the facts alleged are
accepted as true. The pleading must
be read sensibly, as a whole, and
not over-technically.
[14] It is so that
where a plaintiff claims restitution following cancellation of an
agreement, the plaintiff
must plead the material facts upon which
cancellation is founded. A bare conclusion of law will not do. It is
likewise so that
not every breach of contract entitles the innocent
party to cancel. In the absence of a
lex commissoria
,
cancellation ordinarily requires a breach sufficiently serious in law
to justify rescission, or the other recognised juridical
basis for
cancellation.
[15] The excipient
relied, among other authorities, on Singh v McCarthy Retail Limited
t/a MacIntosh Motors
[2000] ZASCA 129
;
2000 (4) SA 795
(SCA) and Ponisammy v Versailles
Estates (Pty) Ltd
1973 (1) SA 372
(A). Those authorities support the
proposition that, in a restitutionary claim, the basis for
cancellation must appear from the
pleading.
[16] The plaintiff,
on the other hand, relied on the approach that pleadings are to be
read benevolently and as
a whole; that a pleader is required to plead
the material facts and not the evidence; and that cancellation may be
communicated
in process. It also contended that the excipient’s
complaint confuses pleading with proof.
[17] In my view, the
plaintiff’s answer to the exception is a substantial one.
[18] The plaintiff’s
contention is that the facts pleaded disclose a breach of a term
fundamental enough
to sustain cancellation.
[19] There is force
in that submission. Paragraph 3.4 does not plead some vague
obligation to perform at some
indeterminate future time. It pleads a
specific obligation linked directly to payment: upon receipt of
payment, the defendant would
deliver the pavers and commence
installation.
[20] Paragraph 5
then pleads that, despite due and proper payment, the defendant
failed and/or refused and/or
neglected to do exactly that. The
pleading therefore alleges not merely that the defendant failed to
perform eventually, but that
the defendant failed to perform when,
according to the pleaded agreement, performance became due.
[21] In the
commercial setting pleaded by the plaintiff, that is significant. The
defendant is alleged to have
required upfront payment of the full
purchase price, less 2.5% and the pleaded counter-performance was
delivery and commencement
of installation upon receipt of such
payment. On a sensible reading, that is capable of conveying that
immediate reciprocal performance
upon payment lay at the heart of the
bargain.
[22] The excipient’s
difficulty is that, to succeed, it must show that those allegations
are incapable of
sustaining the plaintiff’s cause of action on
any reasonable reading. I am unable to reach that conclusion.
[23] It is certainly
possible, as the excipient argues, to say that paragraph 3.4 pleads
when performance fell
due but does not expressly say that time was of
the essence or that failure to perform at that moment constituted a
breach sufficiently
serious to entitle immediate cancellation. That
is a tenable criticism. But it is not the only reasonable reading.
[24] The pleaded
facts are also reasonably capable of bearing the meaning advanced by
the plaintiff, namely that
where the defendant insisted on full
upfront payment and undertook to deliver and commence installation
upon payment, a failure
to do so went to the root of the bargain and
entitled the plaintiff to cancel.
[25] Annexure FT003
reinforces that reading. I do not treat the annexure as creating a
new cause of action or
as impermissibly substituting for absent
facta
probanda
. The material contractual term is already pleaded in
paragraph 3.4. The annexure serves rather to clarify the plaintiff’s
pleaded case by stating expressly what is already implicit in the
pleaded structure of the bargain, namely that immediate delivery
and
commencement upon payment were essential to the transaction.
[26] The pleading
must be read as a whole. Where an annexure properly incorporated into
the particulars clarifies
the pleaded case, it is not to be ignored
in a vacuum.
[27] The authorities
relied upon by the excipient do not, in my view, compel the upholding
of the present exception.
Here the plaintiff expressly pleads
cancellation in paragraph 6; pleads a reciprocal obligation to
perform upon payment in paragraph
3.4; pleads non-performance despite
such payment in paragraph 5; and annexes a demand recording that
immediate performance upon
payment was an essential term. Whether the
plaintiff will ultimately prove those allegations, and whether the
breach was indeed
of such a character as to justify cancellation, are
matters for trial.
[28] The plaintiff
may yet fail at trial. The defendant may well plead that performance
was not required immediately,
or that a reasonable time for
performance had not elapsed, or that mora notice was required, or
that cancellation was otherwise
premature. But those are defensive
matters to be raised on plea and, if necessary, determined on
evidence.
[29] An exception is
not the vehicle by which to decide whether the plaintiff will succeed
on the merits. It is
a mechanism to determine whether the plaintiff’s
particulars, read benevolently and as a whole, disclose a legally
recognizable
cause of action. In my view they do.
[30] The excipient’s
heads, although they sharpened the argument, do not alter that
conclusion. Properly
understood, the plaintiff’s pleading is
not deficient merely because it does not deploy the specific label
‘material
breach’. The facts pleaded are, in my judgment,
sufficient to sustain that conclusion, at least for pleading
purposes.
[31] In the result
,the following order is made:
1. The
exception is dismissed.
2. The
defendant/applicant is directed to pay the costs of the exception on
scale B.
C
DE VILLIERS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Appearances
:
Counsel for the
Applicant
:
Adv HP West
Instructed by:
F Peters Attorneys
Counsel for
the Respondent
:
Adv H Scholtz
Instructed by:
GFT Pistorius INC
Date heard:
20 April 2026
Date of
Judgment:
29 April 2026