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Introduction
[1] This is an exception by the defendant to the plaintiff’s amended particulars of
claim.
[2] The plaintiff advances three claims. Claims A and B are contractual claims arising
from two written agreements concluded between the parties. The agreements
are annexed to the particulars of claim as POC1 and POC4. Claim C is pleaded
in the alternative and is framed as a claim based on unjustified enrichment.
[3] The first and second grounds of exception are directed at Claims A and B.
Although they concern separate agreements, the complaints are substantially
the same. The defendant contends that the agreements relied upon by the
plaintiff are, on their proper cha racterisation, partnership agreements. On that
basis, the defendant contends that the plaintiff cannot claim repayment of its
contributions without first pleading dissolution of the partnership, an accounting,
and settlement of partnership liabilities.
[4] The third ground of exception is directed at Claim C. The defendant contends
that the plaintiff has failed to plead the material facts necessary to sustain a claim
based on enrichment.
The applicable principles
[5] An exception that a pleading does not disclose a cause of action proceeds on
the basis that the facts pleaded are accepted as correct.
[6] The excipient must show that, on every reasonable interpretation of the pleading,
no cause of action is disclosed.
[7] Where a pleading, read as a whole and with the documents on which it relies, is
reasonably capable of an interpretation that sustains a cause of action, an
exception will not succeed.
[8] The purpose of exception proceedings is not to decide factual disputes or,
ordinarily, to determine a contested contractual construction where more than
one reasonable construction is available.
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Claims A and B
[9] The defendant’s complaint in relation to Claims A and B is not merely formal. It
does not rest only on the fact that the agreements are headed “Partnership
Agreement”.
[10] The agreements contain features which, at least on one reading, are consistent
with a partnership arrangement. They contemplate joint commercial activity,
contributions by both parties, profit participation, and collaborative execution of
the projects.
[11] The addenda also appear to deal with matters such as continuing profit
participation, “shareholding & benefits”, valuation of shares, and succession
arrangements in the event of death. Those provisions strengthen the defendant’s
submission that the agreeme nts may have created more than a simple arm’s -
length contractual relationship.
[12] The defendant also relies on the principle that, once a contribution is made to a
partnership, the contribution becomes partnership property and cannot simply be
reclaimed without dissolution and accounting.
[13] Those submissions are not without force. They may ultimately provide the
defendant with a substantive answer to the plaintiff’s claims.
[14] The difficulty, however, is that this is an exception.
[15] The agreements also contain wording upon which the plaintiff relies as excluding
or limiting certain ordinary partnership consequences. Clause J provides, in
material part, that the agreement is not intended directly or indirectly to constitute,
create, give effect to or imply a joint venture, partnership, contract, or any formal
business entity “other than the collaborative relationship set forth herein”. It also
records that each party acts as an independent contractor.
[16] That wording is not free from difficulty. In particular, the phrase “other than the
collaborative relationship set forth herein” is capable of argument. The defendant
submits that it preserves the very collaborative partnership relationship created
by the agreements. The plaintiff submits that the clause at least supports a
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construction that the parties did not intend to create a partnership in law.
[17] I am not required, at this stage, to decide which construction is ultimately correct.
[18] Counsel for the plaintiff drew my attention to Van Eerden v Delco and Another,1
in which the court reiterated that even where the four essentialia of partnership
are prima facie established, that presumption is not necessarily conclusive but
must yield to a contrary intention as revealed in the agreement itself, read in the
light of the other admissible evidence. That enquiry properly belongs to the trial
court.
[19] The defendant’s argument requires the Court to conclude, at exception stage,
that the agreements are capable of only one reasonable construction, namely
that they created partnership relationships with the legal consequence that the
plaintiff was required to plead dissolution and accounting before claiming
repayment.
[20] I am unable to reach that conclusion on exception.
[21] The agreements may ultimately be found, after the leading of evidence and full
argument, to have created partnership arrangements. But the plaintiff’s contrary
construction cannot be rejected as untenable at the pleading stage.
[22] In those circumstances, the defendant has not established that Claims A and B
disclose no cause of action on every reasonable interpretation of the particulars
of claim and the agreements relied upon.
[23] The exception to Claims A and B must therefore be dismissed.
Claim C
[24] Claim C stands on a different footing. The plaintiff pleads, in paragraph 18 of the
amended particulars of claim, that the agreements are “invalid, and/or void ab
initio, and/or incapable of enforcement due to ambiguity, and/or lawfully
cancelled”. Each of those is a legal conclusion. None of the material facts
supporting them is pleaded. The amended particulars do not say why the
1 [2025] JDR 4261 (GP) at paras 7 to 9
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agreements are alleged to be invalid; nor in what respect they are said to be void
ab initio ; nor which terms are said to be ambiguous and incapable of
enforcement.
[25] The position is aggravated by the next averment, in paragraph 2 4, that the
defendant has been enriched “without legal cause”. A claim in enrichment must
be pleaded with reference to one of the recognised condictiones. Although a
plaintiff is not obliged to label its claim with a Latin tag, the material facts
supporting the chosen condictio must still be pleaded.
[26] On the plaintiff’s own pleading , the payments were made in performance of an
agreement which the plaintiff itself alleges was valid for purposes of Claims A
and B. To the extent that Claim C is dependent on the agreement being lawfully
cancelled, the cause of the payments remains the (cancelled) agreement and
the absence of causa is not pleaded.
[27] Rule 18(4) requires every pleading to contain a clear and concise statement of
the material facts relied upon. To plead a series of alternative legal conclusions
without the underlying material facts is not to comply with the rule. The defendant
is left to guess at the case it is required to meet.
[28] Counsel for the plaintiff, very fairly, did not seek to defend Claim C. She
accepted, when the difficulty was put to her, that there “could be more meat on
the bone” and that she was bound to her papers. Her concession was, in my
view, well made. The third ground of exception must be upheld.
[29] The plaintiff should, however, be afforded an opportunity to amend its alternative
claim if it wishes to do so. Exception proceedings are intended to dispose of bad
claims, not to deprive a litigant of an opportunity properly to plead its case. I shall
accordingly grant the plaintiff leave to amend its particulars of claim.
Costs
[30] Both parties have achieved a measure of success.
[31] The defendant’s exception to Claims A and B fail s. The plaintiff’s opposition to
the exception to Claim C fails.
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[32] In those circumstances, the fairest order is that each party pays its own costs.
Order
[33] The following order is made:
1. the exception to Claims A and B is dismissed;
2. the exception to Claim C is upheld;
3. the plaintiff is granted leave, if so advised, to amend Claim C within 20 days
of this order;
4. each party shall bear its own costs of the exception.
__ _
CL ROBERTSON
Acting Judge of the High Court
Gauteng 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 the Plaintiff: Adv M Pinder
Instructed by: AJ Scholtz Attorneys
For the Defendant: Adv WC Carstens
Instructed by: Otto Krause Attorneys
Date of hearing: 14 May 2026
Date of judgment: 2 June 2026