About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: South Gauteng High Court, Johannesburg
You are here:
SAFLII
>>
Databases
>>
South Africa: South Gauteng High Court, Johannesburg
>>
2026
>>
[2026] ZAGPJHC 549
|
Noteup
|
LawCite
Sales Enablement Company (Pty) Ltd v Excel Solutions for Audit (Pty) Ltd and Others (2024/051116) [2026] ZAGPJHC 549 (22 May 2026)
Download original files
PDF format
RTF format
REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
Case No 2024-051116
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
In the matter between:
SALES
ENABLEMENT COMPANY (PTY) LTD
Applicant
and
EXCEL
SOLUTIONS FOR AUDIT (PTY) LTD
Respondent
SWIFT
AUTOMATION (PTY) LTD
Second Respondent
ALTIMAX
(PTY) LTD
Third Respondent
JUDGMENT
MOTHA, J
1.
For adjudication before this court is an
exception noted by the third defendant
against the plaintiff's
particulars of claim dated 9 May 2024 on the basis that the said
pleading lacks averments which are necessary
to sustain a cause of
action. The application pivots on the fact that the third defendant
is joined as a defendant in these proceedings
yet no relief is sought
against it and that no legal tie (contract, delict or any recognised
legal obligation) between the plaintiff
and the third defendant or
between the third defendant and the other parties is alleged by the
plaintiff to justify the joinder
of the third defendant in these
proceedings.
The parties
2.
The plaintiff is The Sales Enablement
Company (Pty) Ltd, a company registered
in terms of South African
company laws.
3.
The first defendant is Excel Solutions for
Audit (Pty) Ltd, a company
incorporated in the
United Kingdom.
4.
The second defendant is Swift Automation
(Pty) Ltd, a company incorporated
in terms of South African
Company Laws.
5.
The third defendant is Swift Automation
(Pty) Ltd, a company incorporated in
terms of South African
Company Laws.
The synopsis of the
facts
6.
On 12 April 2022, Mr. Sibusiso Msomi, the
plaintiff's director, received a
LinkedIn message from Mr.
Christiaan Coetzee, the first defendant's director, relating to an
innovative application that could be
used to enhance the work of
accountants and auditors.
7.
Mr. Coetzee informed Mr. Msomi that this
was a new low-cost application for
auditors known as The
Audit Toolbar that would complement the software used by auditors in
Africa. Furthermore, he told him that
the first defendant required
the plaintiff's expertise to market, source clients, and sell The
Audit Toolbar to potential users.
8.
Having worked with him at Adapt IT, he was
confident that Mr. Msomi was up to the task and could deliver. A
meeting was scheduled
for the 2
nd
of May 2022.
9.
On 02 May 2022, Mr. Msomi, accompanied by
Mr. Bonolo Nkomo, met Mr.
Coetzee to discuss how
their respective companies could work together to sell The Audit
Toolbar. Put differently, the first defendant
sought the plaintiff's
assistance in making auditors aware of The Audit Toolbar. They
entered into a partnership under which the
plaintiff would contribute
to the growth of the first defendant's business by booking
appointments with potential users for the
first defendant.
10.
In brief, the agreement was that the
plaintiff would source out clients and take
care of the sales process
up to the point of quotation; and the first defendant would invoice
clients and provide technical support
in the sales process. Then the
first defendant will pay the plaintiff the agreed 50% in perpetuity
until the licensed client ceases
to use the product. The commission
would only become due to the plaintiff when the licensed client had
paid, and if a licensed
client unsubscribed from the product, the
first defendant would not be obliged to pay the plaintiff in respect
of that particular
client.
11.
At the meeting, Mr. Msomi indicated to Mr.
Coetzee that the Audit Toolbar was
underpriced at R 750.00
per user for the license to use the product. Mr. Msomi recommended
that the licensing price be increased
to R 1 450.00, and Mr. Coetzee,
on behalf of the first defendant, agreed. The first defendant
implemented the proposed pricing.
12.
To provide maximum exposure to the Audit
Toolbar, the plaintiff entered into a
working relationship with
the second defendant. This arrangement, which resulted in more
subscribers to the product, was not only
revealed to Mr. Coetzee on
behalf of the first defendant but was also endorsed by him. The
plaintiff's officials also arranged
public webinars that provided
further exposure for the first defendant's business.
13.
Without going into details, the second
defendant’s presence had a positive
impact on the business.
As part of growing the first defendant's business as well as a
demonstration of goodwill and commitment
to the partnership, the
plaintiff also partnered with the third defendant, which has
substantial experience in the Audit space.
This partnership led to
the Audit Toolbar being accessible to more auditors than would have
been the case.
14.
In August 2023, Mr. Coetzee requested to
meet with Mr. Msomi and Mr. Nkomo
and indicated that the
first defendant should renegotiate its agreement with the third
respondent. He indicated that the current
agreement was structured in
such a way that the first defendant would not be able to earn the
same commission that was negotiated
in the long term.
15.
On 15 September 2023, Mr Msomi received a
letter from Mr Coetzee which
indicated that the first
defendant was cancelling its contract with the plaintiff. In this
letter, it was alleged that the plaintiff
had committed fraud because
it allowed the second defendant to invoice clients directly.
16.
Even though the third defendant has a
contract with the plaintiff, the third
defendant continued to
sell on behalf of the first defendant the Audit Toolbar.
According to the plaintiff, this indicated
that the third defendant
had signed a contract with the first defendant which was deliberately
intended to cut the plaintiff as
the middle partner.
The exception
17.
It is trite that the purpose of pleadings
is to define the issues for the other party
and
the Court
[1]
. In order to
disclose a cause of action a plaintiff's pleadings must set out what
the court said in McKenzie v Farmers' Co-operative
Meat Industries
Ltd
[2]
:
a.
“
What
is the real meaning of the phrase ' cause of action …every
fact which it would be necessary for the plaintiff to prove,
if
traversed, in order to support his right to the judgment of the
Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary to be
proved.”
[3]
18.
When pleading a strict adherence to Uniform
Rule 18(4) of the Uniform Rules
of Court is of paramount
importance, as it sets out the following:
a.
“
Every pleading shall contain a clear
and concise statement of the material facts upon which the pleader
relies for his or her claim,
defence or answer to any pleading, as
the case may be, with sufficient particularity to enable the opposite
party to reply thereto.''
19.
Having cited this Rule, the court in
Trope
v South African Reserve Bank and
Another
[4]
held:
a.
“
It is, of course, a basic principle
that particulars of claim should be so phrased that a defendant may
reasonably and fairly be
required to plead thereto. This must be seen
against the background of the further requirement that the object of
pleadings is
to enable each side to come to trial prepared to meet
the case of the other and not be taken by surprise
.
”
20.
Citing
with approval the matter of
Minister
of Safety and Security v Slabbert,
[5]
the court in
Molus
i
said:
a.
“
And it is for the Court to
adjudicate upon the disputes and those disputes alone. Of course,
there are instances where the court
may, of its own accord (
mero
motu
), raise a question of law that
emerges fully from the evidence and is necessary for the decision of
the case as long as its consideration
on appeal involves no
unfairness to the other party against whom it is directed.
In
Slabbert,
the
Supreme Court of Appeal held:
b.
“
A party has a duty to allege in the
pleadings the material facts upon which it relies. It is
impermissible for a plaintiff to plead
a particular case and seek to
establish a different case at the trial. It is equally not
permissible for the trial court
to have recourse to issues falling
outside the pleadings when deciding a case.”
Analysis
21.
To conclude that the pleadings are
excipiable on the basis that there is no direct
relief sought against the
third defendant is unsound. The third defendant can elect not to
enter the fray or abide by the court’s
decision. On the
contrary, the plaintiff’s action would be imperiled if the
plaintiff fails to cite a party that has a direct
and substantial
legal interest in the subject matter. In my view, the third defendant
may be prejudiced by the trial court's judgment.
Hence, its presence
is warranted.
22.
Upon a proper perusal of the particulars of
claim, this is an action for breach of
contract, and the third
defendant is as much at the center of the storm as the second
defendant. To illustrate the pivotal role
played by the third
defendant in the battle between the plaintiff and the first
defendant, one can do no better than to refer to
paragraphs 14 and 19
in the particulars of claim:
a.
“
14 As part of growing the first
defendant's business as well as a demonstration of goodwill and
commitment to the partnership, the
plaintiff also partnered with the
third respondent, which has substantial experience in the Audit
space. This partnership led to
The Audit Toolbar being accessible to
more auditors than would have been the case without this
partnership.”
23.
It need hardly be stated that the more
auditors accessing the Audit Toolbar,
following the partnership
between the plaintiff and the third defendant, the more money the
plaintiff made from its deal with the
first defendant.
24.
Consequently, any interference with that
partnership would result in litigation
which involves the
plaintiff and the third defendant as explicated under paragraph 19 of
the particulars of claim, which read:
a.
“
The plaintiff specifically pleads
that the agreement between the first defendant and the third
defendant was not entered into in
good faith because it was
opportunistically used to unlawfully cancel the contract between the
plaintiff and the first defendant.
Due to this agreement, the first
defendant decided to summarily cancel its contract with the plaintiff
without indicating whether
and how the plaintiff breached their
contract and indeed providing a breach notice to the plaintiff.”
25.
It is trite that the onus to prove that a
pleading is excipiable rests with the excipient. Focusing on the test
on exception, t
he
court in
Southernport
Developments
(Pty) Ltd (previously known as Tsogo Sun Ebhayi (Pty) Ltd) v Transnet
Ltd
[6]
held:
i.
“(i) In order for an exception to
succeed, the excipient must establish that the pleading is excipiable
on every interpretation
that can reasonably be attached to it;
ii.
(ii)
A
charitable test is used on exception, especially in deciding whether
a cause of action is established, and the pleader is entitled
to a
benevolent interpretation;
iii.
(iii)
The
Court should not look at a pleading 'with a magnifying glass of too
high power'. . . .“Minor blemishes in and unradical
embarrassments caused by a pleading can and should be cured by
further particulars.
iv.
(iv)
The
pleadings must be read as a whole; no paragraph can be read in
isolation.”
26.
When the particulars of claim are read as a
whole, the third defendant is not
just a cog in the
litigation machine, but a prominent and important part of the
contestation between the plaintiff and the first
defendant.
27.
According to the particulars of claim, the
facts show that the third defendant
has a direct and
substantial interest in that he actively partook in the events that
caused the basis and subject matter of the
action. The joinder of the
third defendant is appropriate in law.
Costs
28.
It is trite that costs follow the results.
I have not heard any sound submission
why I should depart from
this well-trodden path. In the result, I make the following order:
ORDER
1.
The exception is dismissed with costs on
party and party scale B.
MP MOTHA
JUDGE
OF THE HIGH COURT
GAUTENG
DIVISION, JOHANNESBURG
Appearances
For the
Applicants:
Adv N Mahlako
Instructed:
Marumoagae Attorneys
For the
Respondent:
Adv G van der
Westhuizen
Instructed:
MacRoberts Attorneys
Date of
hearing:
11 May 2026
Date of
Judgement:
22 May
2026
[1]
Molusi
and Others v Voges N.O. and Others (CCT96/15)
[2016] ZACC 6
;
2016
(3) SA 370
(CC);
2016 (7) BCLR 839
(CC) (1 March 2016) para 28
[2]
1922
AD 16
at 23
[3]
Supra
para 23.
[4]
1992(3)
SA 208
[5]
[2009]
ZASCA 163; [2010] 2 All SA 474
[6]
2003
(5) SA 665
(W),