REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NO: 2024-119527
In the matter between:
SANLAM LIFE INSURANCE LIMITED
Plaintiff/Respondent
and
JCDECAUX SOUTH AFRICA PROPRIETARY
LIMITED
Defendant/Applicant
JUDGMENT
ROBERTSON, AJ
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES: YES/NO
(3) REVISED: YES/NO
______________ _______________________
DATE SIGNATURE
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Introduction
1. This matter concerns:
1.1. an application by the plaintiff for condonation and leave to amend its plea
to the defendant’s counterclaim;
1.2. an exception delivered by the defendant;
1.3. an application in terms of Rule 30 of the Uniform Rules of Court; and
1.4. an application by the defendant for condonation for the late delivery of
the Rule 30 application.
2. The defendant initially raised six grounds of complaint. Following the plaintiff’s
proposed amendment, the defendant no longer persisted with grounds 3 to 6.
The remaining issues concern grounds 1 and 2.
3. Ground 1 concerns the plaintiff’s special plea of non -joinder relating to
Excellerate Real Estate Services (Pty) Ltd t/a JHI (“Excellerate”).
4. Ground 2 concerns the plaintiff’s plea to the defendant’s counterclaim and,
following the proposed amendment, the amended plea on substantially the same
grounds.
Applicable principles
5. The principles applicable to exceptions are well established. Exceptions should
be dealt with sensibly and are directed at the legal sustainability of a pleading,
not at the resolution of factual disputes or the determination of the probabilities.
6. An excipient must establish that, on every reasonable interpretation of the
pleading, no cause of action or defence is disclosed.
7. An exception is concerned with the legal sustainability of the pleading. It is not
concerned with the probabilities, nor with the ultimate correctness of the pleaded
version.
8. A vague and embarrassing exception requires more than a lack of elegance or
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precision. The pleading must be vague in a manner that causes embarrassment
and prejudice in the sense that the excipient cannot reasonably plead thereto.
9. Rule 18(4) requires a pleading to contain a clear and concise statement of the
material facts relied upon, with sufficient particularity to enable the opposite party
to reply.
10. Rule 22(2) requires a plea to admit, deny, confess and avoid, or state which facts
are not admitted, and to plead clearly and concisely the material facts relied
upon.
11. In a Rule 30 application, irregularity alone is insufficient. The applicant must show
prejudice arising from the irregular step. Rule 30 is concerned primarily with
procedural irregularity rather than the substantive legal sustainability of a
pleading.
Condonation
12. Both parties seek condonation for the late filing of their respective applications,
namely the plaintiff’s application for leave to amend and the defendant’s
application in terms of Rule 30.
13. Neither delay was substantial. Both applications were fully ventilated in the
parties’ papers and at the hearing. Neither party identified material prejudice
arising from the respective delays.
14. The defendant criticised the plaintiff’s explanation for its delay in bringing the
amendment application. That criticism is not without force. However, the
amendment application is closely connected to the exception and Rule 30
application, the proposed am endment narrows the issues, and the remaining
disputes were fully argued. In those circumstances, the interests of justice favour
condonation.
15. In the circumstances, condonation should be granted to both parties.
Ground 1: Non-Joinder
16. The plaintiff raises a special plea of non-joinder relating to Excellerate.
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17. The special plea alleges that Excellerate represented the plaintiff for purposes of
contractual implementation, that the defendant’s counterclaim is premised upon
representations, invoices, and a demand issued by Excellerate, and that
Excellerate therefore has a real and substantial interest in the proceedings.
18. The defendant contends that the special plea is excipiable because no relief is
sought against Excellerate and because Excellerate has no direct and
substantial interest in the counterclaim.
19. The defendant relied on Burger v Rand Water Board and Another, 1 Myeni v
Organisation Undoing Tax Abuse NPC and Others 2 and Gordon v Department
of Health, KwaZulu-Natal.3 Those authorities establish, among other things, that
a party is not required to be joined merely because evidence may concern that
party, or because adverse findings may be made against that party. The required
interest is a direct and substantial legal interest in the order that the court may
make.
20. I accept those principles. The difficulty for the defendant is that the enquiry before
me is not whether Excellerate will ultimately be found to have such an interest.
The issue is whether the plaintiff’s special plea is bad in law on every reasonable
interpretation of the pleaded allegations.
21. The plaintiff has pleaded the factual basis upon which it contends that Excellerate
has a sufficient interest. Whether that contention is ultimately sustainable on the
evidence is a matter that may be determined at a later stage.
22. I am not persuaded that the special plea is so legally unsustainable that it may
be struck out on exception.
23. Ground 1 accordingly fails.
Ground 2: The Guarantee
24. Ground 2 is directed at the plaintiff’s plea to the defendant’s counterclaim and,
1 Burger v Rand Water Board and Another [2006] ZASCA 150; 2007 (1) SA 30 (SCA) at para 7
2 Myeni v Organisation Undoing Tax Abuse NPC and Others [2019] ZAGPPHC 565 at para 63
2 Myeni v Organisation Undoing Tax Abuse NPC and Others [2019] ZAGPPHC 565 at para 63
3 Gordon v Department of Health, KwaZulu-Natal [2008] ZASCA 99; 2008 (6) SA 522 (SCA) at para 9
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following the proposed amendment, at the amended plea on substantially the
same grounds.
25. The defendant’s counterclaim arises from the plaintiff’s calling up of a guarantee
issued by Rand Merchant Bank in favour of the plaintiff.
26. The defendant alleges that the plaintiff’s demand under the guarantee was made
in breach of clause 3.4 of the Agreement of Lease concluded between the
parties, attached to the particulars of claim as Annexure “A”.
27. The relevant portion of clause 3.4 provides:
“As an alternative to the aforementioned, the Tenant shall, in its discretion, on
or before, the Beneficial Occupation Date, furnish the Landlord with a bank
guarantee from a registered banking institution in terms of which the said
banking institution gua rantees to pay a sum or sums of money on written
demand made by the Landlord but which sum or sums of money is properly
proved to be owed by the Tenant to the Landlord arising from any un-remedied
breach of the Tenant’s obligations in terms of this Lease.”
28. In essence, the defendant alleges that:
28.1. the amount claimed under the guarantee was not properly proved to be
owed;
28.2. the amount did not arise from an un-remedied breach; and
28.3. the contractual mechanisms relating to Opex approval and breach notice
had not been complied with.
29. The defendant’s complaint under Ground 2 has two components.
30. The first concerns the plaintiff’s pleaded response to the allegation that the
guarantee was called up in the absence of an un-remedied breach. In the original
plea, the complaint was directed principally at paragraphs 11 and 12. Following
the proposed amendment, the complaint is directed principally at paragraph 11
of the amended plea, including the plaintiff’s reliance on a written demand,
alternatively, written invoices said to constitute a written demand.
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31. The second concerns paragraph 8 of the amended plea. The defendant
complains that the plaintiff does not plead written approval of the relevant Opex
proposals as contemplated in clauses 3.3.6 and 3.3.7. Instead, the plaintiff
pleads consultation, provision of information, invoicing, implicit acceptance of the
Opex budget, and conduct or representations allegedly binding the defendant to
the Opex amounts.
Paragraph 11: written demand, invoices and un-remedied breach
32. In paragraph 11 of the amended plea to the counterclaim, the plaintiff admits the
defendant’s allegations concerning the calling up of the guarantee, save to deny
that it breached or repudiated the agreement. It pleads that, after the defendant
refused or failed to rectify its breaches regarding its financial obligations, and
despite receiving a written demand, alternatively written invoices which constitute
a written demand, the plaintiff requested payment of the guarantee from RMB.
33. To the extent that the defendant’s complaint was also directed at paragraph 12
of the original plea to the counterclaim, that complaint is similarly answered by
the proposed amendment and the conclusions reached below.
34. The defendant contends that this does not answer the counterclaim because
clause 3.4 required an un -remedied breach, and an un -remedied breach
necessarily required compliance with clause 17.1: written notice of breach and
ten calendar days to remedy.
35. The defendant may ultimately be correct that clause 3.4, properly interpreted,
must be read with clause 17.1. It may also be correct that invoices cannot
constitute a compliant breach notice.
36. But those questions depend upon the interpretation of the agreement read as a
whole, the legal effect of the documents relied upon, and the parties’ alleged
conduct. At exception stage, the defendant must establish that the plaintiff’s
pleaded position is bad on every reasonable interpretation.
pleaded position is bad on every reasonable interpretation.
37. Clause 3.4 requires the amount claimed under the guarantee to arise from an
“un-remedied breach” of the tenant’s obligations. Clause 3.4 does not, however,
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expressly provide that an “un -remedied breach” for purposes of the guarantee
mechanism can arise only after compliance with clause 17.1.
38. I do not decide that interpretive question finally. It is sufficient to hold that the
defendant has not established, at exception stage, that the plaintiff’s reliance on
a written demand, alternatively invoices, is bad on every reasonable
interpretation.
39. The complaint also does not render the plea vague and embarrassing. The
defendant understands the case it must meet, namely that the plaintiff contends
that demand was made, that the defendant did not remedy its financial breaches,
and that the guarantee was thereafter called up.
Paragraph 8: Opex approval, implicit acceptance and representation
40. Paragraph 8 of the amended plea addresses the defendant’s allegations that no
Opex proposal was approved in writing and that, in consequence, the defendant
was not liable for the increased Opex amounts.
41. The amended plea admits the allegations only to the extent that they are
consistent with the lease agreement and amendments and otherwise denies
them. It then pleads that Excellerate consulted with the defendant on the
operating costs budget for each year, provided necessary details and particulars
concerning the services, and invoiced the defendant for those costs.
42. The amended plea goes further. It pleads that the defendant never raised,
communicated, or transmitted objections or queries to the plaintiff or Excellerate,
and that the defendant thereby implicitly accepted the Opex budget through its
conduct, alternatively conducted itself in a manner representing, or creating the
representation, that it was bound by the Opex budget amounts.
43. The defendant contends that this does not disclose a defence because clauses
3.3.6 and 3.3.7 required written approval of the Opex proposal. It further
contends that implicit acceptance or representation cannot override the written
contends that implicit acceptance or representation cannot override the written
approval mechanism, part icularly in light of the non -variation and whole -
agreement clauses.
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44. Again, the defendant’s argument may ultimately prove correct. But it depends
upon the proper interpretation of the agreement, the legal effect of the parties’
conduct, and whether the plaintiff’s pleaded reliance on conduct and
representation is legally available in the circumstances. Those are matters more
appropriately determined at trial.
45. Clause 3.4 is the clause upon which the counterclaim is founded. The defendant
seeks to link clause 3.4 to clauses 3.3.6 and 3.3.7 by submitting that, because
the guarantee was called up in respect of Opex charges, the Opex could only be
“properly proved t o be owed” if the written approval mechanism had been
complied with.
46. That is a coherent argument, but it is an interpretive argument. Clause 3.4 does
not expressly equate “properly proved to be owed” with “approved in writing”
under clause 3.3.6.
47. The plaintiff’s pleaded answer is that, notwithstanding the defendant’s denial of
written approval, the Opex amounts were due because of consultation, invoicing,
absence of objection, implicit acceptance and/or representation.
48. Whether that answer will survive trial is not the question. The question is whether
it is legally bad on every reasonable interpretation. I am not persuaded that it is.
49. Nor is the pleading vague and embarrassing. The defendant understands that
the plaintiff relies on implementation conduct and representation to answer the
allegation that the Opex amounts were not due. The defendant can challenge
both the factual allegatio ns and the legal consequences for which the plaintiff
contends. If necessary, the defendant may also seek further particulars for
purposes of trial.
50. The fact that the plaintiff’s case may face difficulty at trial does not make the
pleading excipiable.
51. Ground 2 accordingly fails.
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Rule 30 Application
52. The defendant’s Rule 30 application is based on substantially the same grounds
as the exception.
53. The complaint is that the amended plea does not comply with Rules 18(4) and
22(2) because it does not plead the material facts necessary to sustain the
plaintiff’s answer to the counterclaim with sufficient particularity to enable the
defendant to plead.
54. In relation to Ground 1, the plaintiff has pleaded the basis upon which it alleges
that Excellerate has a real and substantial interest in the proceedings. The
defendant may dispute the legal sufficiency of that basis, but the pleading is not
irregular in the Rule 30 sense.
55. In relation to Ground 2, the plaintiff has pleaded its answer to the guarantee
claim. As to paragraph 11, it pleads written demand, alternatively invoices,
refusal or failure to remedy, and the subsequent demand on RMB. As to
paragraph 8, it pleads consult ation, provision of particulars, invoicing, absence
of objection, implicit acceptance and representation.
56. Those allegations are sufficient to enable the defendant to understand and
address the case advanced.
57. The Rule 30 application is not concerned with whether that case is good in law
or likely to succeed. It is concerned with whether the pleading is irregular and
prejudicial.
58. I am not persuaded that the defendant has established prejudice of the kind
required for Rule 30 relief.
59. The Rule 30 application must therefore be dismissed.
Amendment Application
60. Following the proposed amendment, the defendant no longer persisted with
Grounds 3 to 6 of its exception.
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61. I have found that Grounds 1 and 2 do not justify refusing the amendment.
62. The plaintiff is therefore granted leave to amend its plea to the counterclaim in
accordance with its notice of amendment.
Costs
63. Costs should follow the result. Although the proposed amendment addressed
several of the original complaints, the defendant persisted with Grounds 1 and 2
notwithstanding the proposed amendment and was unsuccessful in those
challenges.
64. In those circumstances, the plaintiff should bear the costs occasioned by the
amendment application, but the defendant should bear the costs of the exception
and Rule 30 application.
65. The agreement contains a contractual costs provision providing for costs on the
scale as between attorney and client. Both parties relied on that provision. There
is no reason not to give effect to the contractual costs regime.
Order
66. The following order is made:
66.1. Condonation for the late filing of the plaintiff’s application for leave to
amend is granted.
66.2. Condonation for the late filing of the defendant’s application in terms of
Rule 30 is granted.
66.3. The plaintiff is granted leave to amend its plea to the counterclaim in
accordance with its notice of amendment dated 9 April 2025.
66.4. The defendant’s exception is dismissed.
66.5. The defendant’s application in terms of Rule 30 is dismissed.
66.6. The plaintiff shall pay the costs occasioned by the amendment
application, including the plaintiff’s condonation application, on the scale
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as between attorney and client.
66.7. The defendant shall pay the costs of the exception, the defendant’s
condonation application, and the application in terms of Rule 30, on the
scale as between attorney and client.
____
CL ROBERTSON
Acting Judge of the High Court
Gauteng Local Division, Johannesburg
This judgment was handed down electronically by circulation to the parties’ legal
representatives by email and by upload to Caselines. The date for hand -down is
deemed to be 2 June 2026.
APPEARANCES
For PLAINTIFF/RESPONDENT: S Mathiba
Instructed by: Ben Groot Attorneys Inc. T/A GVS Law
For DEFENDANT/APPLICANT: MCJ van Kerckhoven
Instructed by: Fluxmans Inc.
Date of Hearing: 11 May 2026
Date of Judgment: 2 June 2026