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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
Case No: 2023-038205
In the matter between:
LIBERTY GROUP LIMITED First Plaintiff
2 DEGREES PROPERTIES (PTY) LTD Second Plaintiff
PARETO LIMITED Third Plaintiff
(all of whom are herein represented by JHI RETAIL (PTY) LTD)
and
TIKKA 'N KEBAB CC T/A GHAZAL EXPRESS First Defendant
BHUPINDER GILL Second Defendant/ Excipient
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
25 May 2026 SM MARITZ AJ
DATE SIGNATURE
MARITZ AJ
A. INTRODUCTION
[1] This is an exception brought by the Second Defendant, Bhupinder Gill
(hereinafter referred to as "the Excipient" or “the Second Defendant” ), to the
Plaintiffs' Amended Particulars of Claim dated 24 October 2024 and filed on
8 November 2024. The exception is advanced in terms of Rule 23(1) of the
Uniform Rules of Court on the ground that the Amended Particulars of Claim
lack the averments necessary to sustain a cause of action against the Second
Defendant. The Plaintiffs oppose the exception and seek its dismissal with
costs on the attorney-and-client scale, together with a direction that the
Second Defendant deliver his plea within ten court days of the order.
[2] The Second Defendant was represented by Adv NS Beket of Umhlanga
Chambers, instructed by MCH Attorneys Inc (c/o Friedland Hart Solomon &
Nicolson). The Plaintiffs were represented by Adv LA Pretorius of Parc
Nouveau Advocates' Chambers, instructed by Mark Efstratiou Inc. The matter
was heard on 13 May 2026 as matter number 10 on the opposed motion roll,
by agreement between the parties virtually via MS Teams. Both counsel filed
comprehensive heads of argument and argued the matter fully before me.
B. RELEVANT FACTUAL BACKGROUND
[3] The Plaintiffs are Liberty Group Limited, 2 Degrees Properties (Pty) Ltd and
Pareto Limited (collectively, "the Plaintiffs"), three juristic persons that
together own and let commercial retail property at Sandton City Shopping
Centre, Johannesburg, each represented in these proceedings by JHI Retail
(Pty) Ltd. The First Defendant, Tikka 'N Kebab CC (trading as Ghazal Express),
was a tenant at Shop No F[...], Food Court Level, Sandton City Shopping Centre,
Cnr R[...] Road and […] Street, Sandhurst Ext 3, Sandton, measuring
approximately 83.48 square metres (hereinafter "the premises"). The
premises were let to the First Defendant for use as an Indian fast food outlet.
[4] On or about 28 March 2019, the Plaintiffs and the First Defendant executed a
document described as an Offer to Lease, a copy of which is attached to the
Amended Particulars of Claim as Annexure "A". The Second Defendant,
Bhupinder Gill, signed a Deed of Suretyship on 1 February 2019, binding
himself as surety and co -principal debtor jointly and severally with the First
Defendant for all debts and obligations arising out of the First Defendant's
occupation, use, enjoyment and/or possession of the premises, including any
extension, renewal or tacit relocation thereof. He renounced the benefits of
excussion, division and cession of action. His spouse, Ajinder Kaur Gill,
consented to the suretyship in terms of section 15 of the Matrimonial Property
Act 88 of 1984.
[5] The First Defendant was placed in final liquidation in May 2023. The Plaintiffs
thereafter instituted the present action against both Defendants by combined
summons, claiming arrear rental and associated charges in the sum of
R3 956 476.57 for the period April 2020 to April 2023, together with interest at
10.75% per annum a tempore morae and costs on the attorney -and-client
scale. The action against the Second Defendant is pursued solely in his capacity
as surety.
[6] This is the second exception brought by the Second Defendant in these
proceedings. The first exception was upheld by Naude AJ on 22 November
2023 on three grounds — the basis of JHI Retail's representation of the
Plaintiffs was not adequately pleaded; the basis for rental claimed beyond the
initial lease period was absent; and the citation of the Second Defendant was
defective — with the Plaintiffs granted 20 days' leave to amend. A procedural
dispute regarding compliance with that order was resolved by Nyathi J on 16
October 2024, who declared an irregular step but granted the Plaintiffs a
further 10 days to file a fresh notice of intention to amend under Rule 28. The
further 10 days to file a fresh notice of intention to amend under Rule 28. The
Plaintiffs filed a fresh notice on 24 October 2024. The Second Defendant filed
no objection under Rule 28(2). The Amended Particulars of Claim were
delivered on 8 November 2024, and the present second exception was filed
on 1 December 2025.
C. ISSUES IN DISPUTE
[7] The exception raises two related grounds. The first is that the Amended
Particulars of Claim, read with the incorporated Offer to Lease (Annexure "A"),
fails to disclose the conclusion of a binding lease agreement and therefore
fails to disclose any cause of action for arrear rental against the First Defendant.
The second, which is derivative of the first, is that since no valid principal
obligation is disclosed, no accessory cause of action against the Second
Defendant as surety can be sustained. The resolution of both grounds
depends entirely upon the first: whether the Amended Particulars of Claim, read
as a whole with the incorporated documents, adequately pleads the conclusion of
a binding lease agreement.
D. THE AMENDED PARTICULARS OF CLAIM AND THE OFFER TO LEASE
[8] Paragraph 3.1 of the Amended Particulars of Claim pleads as follows: " On or
about the 28th of March 2019, and at Sandton, Gauteng, the Plaintiffs and the
First Defendant signed an Offer to Lease ." Paragraph 3.2 attaches the Offer
to Lease as Annexure "A". Paragraph 3.3 pleads that " the Plaintiffs plead that
the contents of the Offer to Lease be read as if specifically incorporated herein by
way of reference." Paragraph 4.1 pleads that in concluding the Offer to Lease
the First Defendant was represented by the Second Defendant as its duly
authorised representative, and paragraph 4.2 pleads that the Plaintiffs were
represented by Preston Charles Gaddy, duly authorised thereto.
[9] Paragraphs 5.1 to 5.14 plead the material terms of the Offer to Lease: the
premises (paragraph 5.1); the three -year lease period (paragraph 5.2); the
commencement date of 1 April 2019 (paragraph 5.3); the termination date of
31 March 2022 and thereafter a tacit relocation of the lease agreement on the
same terms and conditions until April 2023 when the First Defendant vacated
the premises (paragraph 5.4); the basic monthly rental (paragraph 5.5);
the premises (paragraph 5.4); the basic monthly rental (paragraph 5.5);
turnover rental (paragraph 5.6); property expense contributions (paragraph
5.7); rates and levies contributions (paragraph 5.8); City Improvement District
Levy (paragraph 5.9); sewerage and effluent charges (paragraph 5.10); refuse
charges (paragraph 5.11); electricity, gas and water contributions (paragraph
5.12); marketing fund contributions (paragraph 5.13); and the deposit
(paragraph 5.14). Paragraph 6 pleads the First Defendant's indebtedness.
Paragraph 7 pleads the Deed of Suretyship.
[10] What the Amended Particulars of Claim does not plead is significant: it does
not plead that the Plaintiffs' acceptance of the Offer to Lease was conveyed to
the First Defendant in writing, as required by Clause 2 of the Offer to Lease.
Nor does it plead that this requirement was waived, or that the lease was
tacitly accepted or tacitly concluded by conduct.
[11] Clause 2 of the Offer to Lease, which is incorporated into the Amended
Particulars of Claim by reason of paragraph 3.3, reads as follows:
“The tenant, by signing the endorsement below, hereby
irrevocably offers to lease the premises from the landlord, on the terms
and conditions of this offer (read with all annexures hereto) which offer
shall only be accepted on behalf of the landlord if signed by the
landlord's duly authorised representative and such acceptance
having been conveyed to the tenant in writing.”
[12] The opening NOTE to the Offer to Lease states that the document " shall
constitute a binding agreement once accepted and signed on behalf of the
landlord". Clause 3.1 provides that the terms and conditions of the lease shall
be those contained in the offer read together with the Landlord's Standard
Agreement of Lease attached as Annexure "D". Clause 3.2 provides: " The
lease must be signed by the parties concerned after acceptance of this offer
by the landlord. A failure by the tenant to sign and return the lease to the landlord
on demand shall constitute a material breach of the terms of this offer, but not
the right to terminate the agreement between the parties. Until the said lease
the right to terminate the agreement between the parties. Until the said lease
is signed, this offer once accepted by the landlord constitutes a binding Lease
Agreement between the parties. " Clause 4.4 provides that should the tenant
remain in occupation after the lease expiry date (with or without the landlord's
consent), the lease shall continue on a monthly basis with the basic monthly
rental escalating by 20%.
[13] The acceptance endorsement on page 8 of Annexure "A" reflects the
signature of Preston Gaddy as the Plaintiffs' representative, signed and
witnessed at Sandton City on 28 March 2019. The tenant's confirmation reflects the
signature of B. Gill on behalf of Tikka 'N Kebab CC, dated 15 February 2019.
Both parties' representatives accordingly signed the document. The Amended
Particulars of Claim pleads nothing further as to the conclusion of the
lease.
E. THE PLAINTIFFS' CASE
[14] The Plaintiffs advance their opposition to the exception on several grounds,
each of which is addressed in turn.
Clause 2 as a suspensive condition
[15] The Plaintiffs' primary submission is that Clause 2 of the Offer to Lease does
not prescribe a conjunctive method of acceptance but rather operates as a
suspensive condition. Their counsel contends that Clause 2 suspends the
rights and obligations of an already -concluded agreement until the condition
— written conveyance of acceptance — is fulfilled. On this characterisation, the
Plaintiffs say they have already pleaded that the lease agreement was
concluded, which must be accepted as true at exception stage, and that it is
accordingly unnecessary to plead the fulfilment of the suspensive condition:
the pleading of conclusion imports fulfilment.
[16] The Plaintiffs rely on the judgment of Kubushi J in Carla Oberholzer v Seventy
Two Telecommunications & Glocell (Pty) Ltd (GP Case No 20338/2015, 26
July 2017) ("Oberholzer"). In that case the plaintiff claimed commission under an
alleged employment agreement. The defendant excepted on the basis that
the Letter of Offer of Employment annexed bore no signature from the plaintiff
(the prescribed acceptance mechanism) and accordingly the particulars of claim
disclosed no concluded agreement. Kubushi J dismissed the first ground of
exception. At paragraphs 9 to 12, the court held that the plaintiff's claim was
based on a concluded employment agreement — not merely on an offer —
and that the court at exception stage must accept this as true. Critically, the court
identified the issue of non-signature as a matter of a suspensive condition: the
exception presupposed that the cause of action was based on an offer, not a
concluded agreement. The court further held at paragraph 12 that the failure
to annex a signed copy was a deficiency curable by evidence at trial.
[17] The Plaintiffs submit that the same analysis applies here: their claim is
founded on a concluded lease agreement; the court must accept this as true;
and any question about whether the Clause 2 acceptance formality was
completed is a matter of evidence for trial. They reinforce this submission by
reference to paragraph 5.6 of their heads of argument, where they characterise
Clause 2 as a suspensive condition, and to paragraphs 5.15 to 5.16, where they
submit that by pleading signature and breach they have pleaded all material facts
(facta probanda) necessary to sustain the cause of action.
Written notice as facta probantia
[18] The Plaintiffs submit that compliance with Clause 2 — specifically the written
conveyance of acceptance — is a matter of evidence ( facta probantia) to be
established at trial, not a material fact ( factum probandum ) to be pleaded.
They rely on Benson & Simpson v Robinson 1917 WLD 125, where Wessels J held
that a plaintiff must state clearly and concisely the facts on which the claim is
based, with sufficient exactness that the defendant knows what must be
proved against him, but is not required to set out the evidence. On this basis,
the Plaintiffs contend that the conclusion of the agreement is the material fact,
whilst the mechanical steps by which conclusion was achieved are evidentiary
details.
whilst the mechanical steps by which conclusion was achieved are evidentiary
details.
The pleading discloses a concluded agreement
[19] The Plaintiffs further submit that, on reading paragraphs 5.4, 6.1 and 7 of the
Amended Particulars of Claim holistically, the pleading discloses the
conclusion of a binding agreement and a tacit relocation thereof. They point to the
pleaded four-year occupation of the premises from 1 April 2019 to 1 April 2023,
the levying of rental from the inception of the lease in accordance with the lease
terms, and the specific invocation of Clause 4.4 of the Offer to Lease as the
basis for the continued tenancy. They argue that this conduct, accepted as
true, necessarily discloses a binding lease agreement — and that the Second
Defendant's exception, in targeting only paragraph 3.1 and ignoring these
averments, does not read the pleading as a whole.
The exception is a merits defence
[20] Finally, the Plaintiffs submit that the exception amounts to no more than a
defence on the merits dressed in the language of a pleading objection. They
rely on Doyle v Fleet Motors (Pty) Ltd 1971 (3) SA 760 (A) for the proposition
that an exception is not a substitute for a plea, and on Masakhane Mining
Supply and Construction CC t/a Masakhane Megawatt Services v FPM
Business Solutions (Pty) Ltd t/a FPM Security Services [2025] ZANWHC 190
for the proposition that even a weak pleaded case survives an exception if the
essential elements of a cause of action are present. The Second Defendant,
they say, should deliver a plea denying conclusion of the lease and place the
Plaintiffs to proof at trial.
F. THE SECOND DEFENDANT'S CASE
[21] The Second Defendant's case, as advanced by Adv Beket, proceeds on
several distinct submissions.
Only an offer to lease was signed — not a concluded agreement
[22] The Second Defendant's first and most fundamental submission is that the
Amended Particulars of Claim does not plead the conclusion of a lease
agreement at all. What paragraph 3.1 pleads is that the parties " signed an
Offer to Lease" — which is precisely what the document is. Clause 2 of the Offer to
Lease makes this characterisation explicit: the tenant's signature constitutes
an irrevocable offer to lease; it is not a concluded agreement. The landlord's
signature constitutes acceptance of that offer only when combined with written
conveyance of that acceptance to the tenant. Neither the conclusion of a
lease agreement nor the conveyance of written notice of acceptance is pleaded.
The Amended Particulars of Claim pleads the signing of an offer; it says
nothing about that offer having been accepted in the manner prescribed by its
own terms. The cause of action for arrear rental requires, as a factum
probandum, the conclusion of a lease agreement — which is absent from the
pleading.
Clause 2 prescribes a method of acceptance, not a suspensive condition
[23] The Second Defendant submits that the Plaintiffs' characterisation of Clause 2
as a suspensive condition is legally incorrect. A suspensive condition (conditio
suspensiva) presupposes a concluded agreement and suspends the
operation of rights and obligations under that agreement until the condition is
fulfilled. Clause 2 does not presuppose a concluded agreement — it defines the
mechanism by which the tenant's offer becomes a concluded agreement. The
tenant's signature is expressly described as an offer; the clause then
prescribes how that offer is accepted. This is the language of contract formation,
not of a condition subsequent to an existing agreement. The authority of Laws v
Rutherford 1927 AD 261 at 263 per Ennis CJ governs: where an offeror
prescribes a specific method of acceptance, only compliance with that
method concludes the contract.
The exception to the rule that pleaded facts are accepted as true —
Fresh Produce
[24] The Second Defendant draws the court's attention to an important
qualification to the general principle that a court accepts all facts pleaded as true for
qualification to the general principle that a court accepts all facts pleaded as true for
the purposes of an exception. In Fresh Produce Holdings (Pty) Ltd v Transpaco
Ltd 1990 (4) SA 749 (N) at 753H, Howard J held that the rule that all facts
pleaded by the plaintiff must be accepted as true is limited to facts properly so
called — it does not extend to inferences. A conclusion drawn by a pleader from
primary facts is not itself a fact to be accepted as true; the court examines the
primary facts from which the inference is drawn to determine whether the
conclusion is sustainable. The proposition that " a lease was concluded " is, in
the present context, not a primary fact but an inference drawn from the pleaded
primary fact — namely, that the parties signed the Offer to Lease. The court must
therefore examine the incorporated document (Clause 2) to determine whether
that inference is open on the pleaded facts. It is not: Clause 2 shows that
signature alone, without written conveyance of acceptance, does not conclude
the lease.
The Oberholzer judgment does not assist the Plaintiffs
[25] The Second Defendant specifically argues that Oberholzer does not assist the
Plaintiffs. The Court attention was drawn to paragraphs 7, 8, 10 and 11 of that
judgment. At paragraph 7, Kubushi J noted the plaintiff's submission that it
was unnecessary to plead a suspensive condition because the plaintiff had already
pleaded that the employment agreement was concluded. At paragraph 8 the
court confirmed the principle that a suspensive condition must be pleaded
where the claim rests on its fulfilment. At paragraphs 10 and 11, the court
dismissed the first ground of exception on the basis that the claim was
founded on a concluded agreement — finding that the pleading had already
asserted the agreement's conclusion. The court further noted, at paragraph 10,
that the exception "presumes that the cause of action is premised on an offer
which should have been accepted" and held that this was not the plaintiff's case.
[26] The Second Defendant argues that the very reasoning which made
Oberholzer a good case for the plaintiff there operates against the Plaintiffs here.
Oberholzer a good case for the plaintiff there operates against the Plaintiffs here.
In Oberholzer, the court was satisfied that a concluded agreement was pleaded.
In the present case, paragraph 3.1 of the Amended Particulars of Claim uses
the very language of an offer — "the Plaintiffs and the First Defendant signed
an Offer to Lease " — and incorporates a document which itself defines the
signing as an irrevocable offer. In Oberholzer, the court expressly
distinguished a claim based on a concluded agreement from one based on
an offer. The Amended Particulars of Claim, on its own language, pleads the
latter. Furthermore, the court in Oberholzer addressed the written notice as a
suspensive condition and found that where the claim is based on a concluded
agreement, the plaintiff need not plead fulfilment of the suspensive condition.
In the present case, however, Clause 2 does not operate as a condition of an
already-concluded agreement — it defines the method by which the offer
becomes an agreement. Accordingly, the conclusion that Oberholzer supports
the Plaintiffs is mistaken.
Waiver and tacit acceptance must be specifically pleaded
[27] The Second Defendant submits that if the Plaintiffs wished to rely on waiver of
the Clause 2 written notice requirement, or on tacit acceptance of the Offer to
Lease by conduct, they were obliged to specifically plead those facts. The
Second Defendant relies on Timoney and King v King 1920 AD 133 at 141 for
the proposition that where a party relies on tacit acceptance, the conduct
from which such acceptance is to be inferred must be specifically pleaded. A
bare assertion that the lease was concluded, without pleading the conduct
constituting waiver or tacit acceptance, is insufficient. Similarly, waiver is a
question of fact — requiring the voluntary and intentional abandonment of a
known right — which must be specifically pleaded, not inferred from silence or
from the mere fact of occupation. The Second Defendant points out that
paragraph 5.4 pleads a " tacit relocation" but does not plead any conduct from
which a tacit conclusion of the original lease could be inferred, which are
distinct legal concepts.
To claim arrear rental the conclusion of the lease must be pleaded
[28] The Second Defendant submits that the conclusion of the lease agreement is
a fundamental factum probandum without which no cause of action for arrear
a fundamental factum probandum without which no cause of action for arrear
rental can be sustained. The Second Defendant relies on Ramnath v Bunsee
1961 (1) SA 394 (N) and Tel Peda Investigation Bureau (Pty) Ltd v Van Zyl
1965 (4) SA 475 (E) at 478G for the proposition that the conclusion of a lease
is an essential element of a claim for arrear rental that must be pleaded and
proved. The Amended Particulars of Claim does not plead the conclusion of
the lease — it pleads only that the parties signed an Offer to Lease, which is the
very document that, on its face, expressly distinguishes between the signing
of the offer (paragraph 3.1 of the PoC) and the conclusion of the agreement
(which requires the additional step of written acceptance prescribed by Clause
2). In the absence of that averment, the essential element of the cause of action is
missing.
The suretyship claim
[29] The second ground of exception is that the suretyship claim against the
Second Defendant cannot be sustained in the absence of a validly pleaded
principal obligation. Suretyship is accessory in nature: the surety's liability
depends upon the existence of a valid and enforceable principal debt. In the
absence of a pleaded principal obligation, no accessory claim can stand:
Dobson and Dobson Industrial Ltd v Van Der Werf 1981 (4) SA 417 (C) at 431;
Evins v Shield Insurance Company Ltd 1980 (2) SA 814 (A) at 825F.
Costs
[30] The Second Defendant seeks that the exception be upheld with costs on the
party-and-party scale, including the costs of counsel on Scale B. The Second
Defendant submits that whilst attorney -and-client costs might be appropriate
where a party has acted in bad faith or vexatiously, the present exception
raises a genuine and substantive legal question that has not been previously
adjudicated in a manner that would have clearly forewarned the Plaintiffs of
the deficiency.
G. ANALYSIS
Legal Principles
[31] The applicable principles are not in dispute and may be briefly stated. An
exception on the ground that a pleading lacks the averments necessary to
sustain a cause of action is governed by Rule 23(1) of the Uniform Rules. The
court accepts all facts as pleaded by the plaintiff as true and reads the
pleading as a whole, holistically and benevolently: Merb (Pty) Ltd & 2 Others v
Matthews, Michael Brian & Others (GJ, Case No 2020/15069, 16 November 2021,
Maier- Frawley J) at para 8; Living Hands (Pty) Limited and Another v Fitz and
Others 2013 (2) SA 368 (GSJ) per Makgoka J. An exception may be upheld
only where it is impossible to recognise the claim, irrespective of the facts as they
might emerge at trial: Gallagher Group Ltd and Another v IO Tech Manufacturing
(Pty) Ltd and Others 2014 (2) SA 157 (GNP) at para [20]; Tembani v President of
the Republic of South Africa 2023 (1) SA 432 (SCA) at para [1]. The defect relied
upon must appear ex facie the pleadings: YB v SB and Others NNO 2016 (1)
SA 47 (WCC) at para 12. The excipient must establish that upon every
reasonable interpretation of the pleading, and of the document upon which it
is based, no cause of action is disclosed: Gallagher (supra) at para [20].
[32] A cause of action consists of every fact (factum probandum) which the plaintiff
would need to prove, if traversed, in order to support the right to judgment:
McKenzie v Farmers' Co-operative Meat Industries Ltd 1922 AD 16 at 23. The
distinction between facta probanda and facta probantia is fundamental: a
plaintiff must plead the former but is not required to plead the latter. Whether
a particular matter falls on one side of this line or the other is a question that
turns on the specific facts of each case.
The characterisation of Clause 2
[33] The Plaintiffs' submission that Clause 2 operates as a suspensive condition
must be rejected. A suspensive condition ( conditio suspensiva) presupposes
must be rejected. A suspensive condition ( conditio suspensiva) presupposes
a concluded agreement and operates to suspend the coming into force of rights
and obligations under that agreement pending the occurrence of a stipulated
event. Clause 2 does not presuppose a concluded agreement: it defines the
mechanism by which the tenant's irrevocable offer becomes a binding
contract. The clause opens with the words " the tenant, by signing the
endorsement below, hereby irrevocably offers to lease the premises from the
landlord" — language that is unambiguous in describing the tenant's act of signing
as an offer, not a concluded agreement. The clause then prescribes how and when
that offer will be accepted: “only if signed by the landlord's duly authorised
representative and such acceptance is conveyed in writing to the tenant .” This
is the language of contract formation — of offer and acceptance — not of a
condition subsequent to an existing contract. The NOTE at the opening of the
Offer to Lease confirms the analysis: the document " shall constitute a binding
agreement once accepted and signed on behalf of the landlord ". Until
acceptance in the prescribed manner occurs, there is no agreement to be
suspended.
[34] Clause 3.2 reinforces this analysis. It provides that " until the said lease is
signed, this offer once accepted by the landlord constitutes a binding Lease
Agreement between the parties ." Acceptance by the landlord is thus the
pivotal event that transforms the offer into a binding agreement. Acceptance,
in terms of Clause 2, requires both signature by the landlord's authorised
representative and written conveyance of that acceptance to the tenant.
Clause 3.1, which describes the terms of the lease as being those in the offer
together with the Landlord's Standard Agreement, further confirms that the
document is an offer that becomes a lease upon acceptance — not a
concluded agreement subject to a condition. The Plaintiffs' characterisation
of Clause 2 as a suspensive condition is accordingly inconsistent with the
plain language of the document they have incorporated into their own pleading.
The critical question — what is pleaded
[35] The point of departure in any exception is what the pleading actually says.
Paragraph 3.1 of the Amended Particulars of Claim pleads in terms that " the
Plaintiffs and the First Defendant signed an Offer to Lease ". This is precisely
Plaintiffs and the First Defendant signed an Offer to Lease ". This is precisely
and only what is pleaded: the signing of an offer. Paragraph 3.3 incorporates
the contents of the Offer to Lease by reference in full. The incorporated
document, on its face and in terms of Clause 2, expressly provides that the
tenant's signing is an offer, and that th e offer is only accepted if two
conjunctive requirements are met — signature by the landlord's authorised
representative and written conveyance of that acceptance to the tenant. The
Amended Particulars of Claim pleads that both parties signed the document, but
says nothing about written conveyance of acceptance having occurred. Critically, it
also does not plead that the parties concluded a lease agreement — it pleads
only that they signed an Offer to Lease.
[36] This distinction is not a matter of label or form. The Amended Particulars of
Claim adopts precisely the language of offer, not of concluded contract. The
Second Defendant's submission that the pleading does not aver the
conclusion of a lease agreement is therefore correct. Paragraphs 5.1 to 5.14 plead
the material terms of the Offer to Lease — not of a concluded lease — in
fulfilment of the obligation to disclose the terms of the agreement relied upon.
Paragraph 5.4 pleads a "tacit relocation" after March 2022, but a tacit relocation is
a concept that arises upon the expiry of an existing lease where the tenant
holds over — it presupposes that a lease was in operation and then expired. The
pleading of a tacit relocation does not assist in establishing the conclusion of
the original lease and is, in fact, conceptually distinct from it.
The Fresh Produce qualification and the limits of acceptance
[37] The Second Defendant correctly invokes the qualification articulated in Fresh
Produce Holdings (Pty) Ltd v Transpaco Ltd 1990 (4) SA 749 (N) at 753H,
where Howard J held that while the court accepts facts pleaded as true, this
acceptance extends only to facts properly so called and not to inferences. The
proposition that a lease was concluded is not a primary fact averred in the
Amended Particulars of Claim — it is an inference that would need to be
drawn from the primary facts pleaded. The prima ry facts pleaded are: (a) the
parties signed the Offer to Lease; and (b) the contents of the Offer to Lease
parties signed the Offer to Lease; and (b) the contents of the Offer to Lease
are incorporated by reference. The Offer to Lease itself, as incorporated,
discloses the mechanism required for conclusion of the lease. The question
whether the lease was concluded is therefore an inference from those primary facts
— and the incorporated document reveals that the inference is not sustainable
on the pleaded primary facts alone, because a further step (written
conveyance) is required and not averred. The court is entitled to examine the
documents incorporated into the pleading to determine whether the conclusion
drawn is open: Gallagher (supra) at para [20].
The Benson & Simpson submission and the facta probanda/probantia
distinction
[38] The Plaintiffs' reliance on Benson & Simpson v Robinson 1917 WLD 125 and
the facta probanda/facta probantia distinction does not advance their case.
Wessels J in Benson & Simpson held that a plaintiff must state facts clearly
and concisely so that the defendant knows what is to be proved against him, but
is not required to plead the evidence by which those facts are to be proved.
The Plaintiffs invoke this to argue that how the lease was accepted — the
mechanics of written conveyance — is a matter of evidence for trial. This
argument misconceives the nature of the required averment. The issue is not
how the acceptance was communicated, but whether a binding lease was
concluded at all. The conclusion of the lease — not merely the signing of the
offer — is a factum probandum: it is a fact the Plaintiffs would be required to
prove, if traversed, to support the right to judgment. The McKenzie test
confirms this: if the Second Defendant were to deny in a plea that the lease was
ever concluded, the Plaintiffs would be required to prove at trial not only that
both parties signed the document, but that the Plaintiffs' acceptance was
conveyed to the First Defendant in writing as prescribed by Clause 2. That
fact is a factum probandum, not a factum probantis. The Plaintiffs' own reliance on
McKenzie for the definition of facta probanda simultaneously confirms that
written conveyance falls within that definition.
The Oberholzer case — analysis and distinction
[39] The Oberholzer case requires careful examination, because whilst it is the
most directly relevant authority cited by the Plaintiffs, a close reading of the
most directly relevant authority cited by the Plaintiffs, a close reading of the
judgment reveals that it does not support the Plaintiffs' case and may, on proper
analysis, be distinguished on facts that are material to the present dispute.
[40] In Oberholzer, the plaintiff claimed commission arising from an employment
agreement between herself and the second defendant. The Letter of Offer of
Employment was annexed as Annexure "A". The document bore signatures of
two representatives of the employer but no signature from the plaintiff. Clause
32.1 of the letter required the plaintiff to acknowledge acceptance of the offer
"by signing and dating the attached copy of the letter and returning it to the
second defendant not later than 19 June 2014, failing which, the offer will
lapse." The exception was that the document constituted only an offer — not
a concluded agreement — because the plaintiff had not signed it.
[41] Kubushi J dismissed the first ground of exception on the basis, at paragraph
11, that " the plaintiff's claim is based on an agreement of employment. The
allegations in the plaintiff's particulars of claim presupposes that the
employment agreement was already concluded at the time the claim was
launched." At paragraph 12, the court found that the failure to annex a signed
copy of the letter was curable by evidence at trial.
[42] There are four material differences between Oberholzer and the present case
that distinguish it and render it inapplicable. First, in Oberholzer the court was
satisfied that the particulars of claim positively asserted the conclusion of an
employment agreement. In the present case, paragraph 3.1 does not assert
the conclusion of a lease agreement — it asserts only that the parties " signed
an Offer to Lease", which is the language of an offer, not of a concluded
contract. Second, in Oberholzer the deficiency relied upon was the absence of
the plaintiff's signature on a copy of the document annexed — a procedural
matter of not annexing the correct version of the document. The court held
this was curable by evidence. In the present case, the deficiency is not the failure
to annex a document evidencing acceptance: it is the failure to plead that a
to annex a document evidencing acceptance: it is the failure to plead that a
distinct and separate act (the written conveyance of acceptance) occurred at
all. That act is not visible on the face of any document in the pleading and
cannot be " cured" merely by producing a document at trial. Third, in
Oberholzer the prescribed method of acceptance (signing and returning the letter)
was a single act that simultaneously constituted acceptance and communicated it to
the offeror. Clause 2 of the present Offer to Lease prescribes two distinct
steps: the landlord's signature (acceptance) and the separate written conveyance of
that acceptance to the tenant (communication). The present case involves a
missing averment about a subsequent, independent act — not merely an
evidentiary gap in the documentation. Fourth, and perhaps most importantly,
the court in Oberholzer at paragraphs 7 and 8 engaged with the concept of a
suspensive condition: it confirmed the principle that where a claim is
premised on a suspensive condition, fulfilment of that condition must be
pleaded. The court then found, at paragraphs 10 and 11, that the claim was
not premised on an offer but on a concluded agreement. In the present case, the
Amended Particulars of Claim, by its own language and by the terms of the
incorporated Clause 2, is premised precisely on an offer — the language of
paragraph 3.1 is the language of an offer, and Clause 2 expressly confirms
this. The plaintiff in Oberholzer successfully argued that her claim was based on a
concluded agreement; the Plaintiffs in the present case cannot make the
same argument without contradicting their own pleading.
[43] The Second Defendant's submission that Oberholzer does not assist the
Plaintiffs is well -founded. The very reasoning that permitted the exception to
be dismissed in Oberholzer — that a concluded agreement was pleaded — is
absent in the present case. Oberholzer accordingly offers no support for the
Plaintiffs.
Waiver, tacit acceptance, and the pleading obligations
[44] The Plaintiffs do not in terms plead waiver of the Clause 2 written notice
requirement or tacit conclusion of the lease by conduct. They argue, however,
that the pleaded facts of four -year occupation and the invocation of Clause
4.4 are sufficient to establish the existence of a concluded lease. This argument
cannot be sustained at the exception stage, for the reasons that follow.
[45] Waiver is a question of fact: the voluntary and intentional abandonment of a
[45] Waiver is a question of fact: the voluntary and intentional abandonment of a
known right with full knowledge of its existence. As a question of fact, it must
be specifically pleaded, together with the material facts from which it is to be
inferred. Similarly, tacit acceptance must be established by pleading the
conduct from which acceptance can be inferred: Timoney and King v King
1920 AD 133 at 141. The Amended Particulars of Claim pleads neither. The
four-year occupation is pleaded, but occupation of premises may be
consistent with many legal bases — a lease, a tacit relocation, a lease by
conduct, or even a precarious /unlawful occupation. The pleading does not
identify any of these as the basis for the claim in terms that go beyond the
Offer to Lease and its signed -but-not-accepted status. Nor does the invocation of
Clause 4.4 cure the deficiency: Clause 4.4 is a term of the Offer to Lease; if
the Offer to Lease never became a binding agreement for want of written
conveyance of acceptance, Clause 4.4 equally never became operative. An
exception court reads the pleading as a whole, and reading paragraphs 5.4
and 6.1 together with Clause 2 of the incorporated Offer to Lease, the pleading is
internally inconsistent: it invokes the Offer to Lease as the source of financial
obligations (including the holdover clause) whilst simultaneously failing to aver
that the Offer to Lease ever became a binding contract.
[46] The argument that waiver belongs in a replication (in response to a defence of
non-conclusion pleaded by the Second Defendant in a plea) misapprehends
the position at exception stage. Waiver of the Clause 2 formality is not merely
an answer to a potential future defence — it is an essential element of the
Plaintiffs' cause of action, because without it there is no concluded lease. In a
case where the foundation of the entire claim is a contract whose formation is
expressly made conditional on an act that is neither pleaded as having
occurred nor pleaded as having been waived, the deficiency is in the cause of
action itself, not merely in the anticipation of a possible defence. The Plaintiffs
cannot defer to a replication that which is a factum probandum required to
establish the cause of action in the first place.
establish the cause of action in the first place.
The holistic reading and the internal inconsistency argument
[47] The Plaintiffs invite this court to read the Amended Particulars of Claim
holistically, including paragraphs 5.4 and 6.1, and to conclude from the
pleaded occupation and the levying of rental from inception that a binding lease
must have existed. This submission, whilst superficially attractive, does not
withstand scrutiny. The obligation to read a pleading holistically does not permit
the court to draw inferences from pleaded facts that contradict the terms of the
documents incorporated by the plaintiff into the pleading itself. Clause 2,
incorporated by paragraph 3.3, states unequivocally that the signing of the
offer by both parties does not conclude the contract — only signature combined
with written conveyance of acceptance does so. The court cannot, on a holistic
reading, draw the inference that the contract was concluded when the
document at the heart of the pleading expressly negates that inference on the
facts as pleaded. The benevolent reading principle does not require the court
to accept a legal conclusion — the conclusion of the lease — that is
unsupported by and inconsistent with the primary facts and documents that
the Plaintiffs themselves have placed before the court.
[48] The submission that the Second Defendant has selectively read the pleading
by focusing on paragraph 3.1 to the exclusion of paragraphs 5.4, 6.1 and 7 is
not well -founded. The Second Defendant's case is not that there was no
occupation or no levying of rental — he does not dispute those averments. It
is the case of the Second Defendant that the Amended Particulars of Claim, on
its own terms, fails to aver that the Offer to Lease was ever accepted in the
manner prescribed, and accordingly fails to aver the foundation of any cause
of action under that document. Reading paragraphs 5.4, 6.1 and 7 does not cure
this deficiency: those paragraphs plead what happened after the document
was signed, not that the document became binding by compliance with its own
terms of acceptance.
The Doyle and Masakhane Mining submissions
[49] The Plaintiffs' reliance on Doyle v Fleet Motors (Pty) Ltd 1971 (3) SA 760 (A)
and Masakhane Mining [2025] ZANWHC 190 does not assist them. Doyle
confirms that an exception is not a substitute for a plea and that questions of
confirms that an exception is not a substitute for a plea and that questions of
fact should not be decided on exception. This principle is well -established and
applies where the alleged deficiency is a disputed factual matter that ought to
be resolved at trial. But it has no application where, as here, the deficiency
appears ex facie the pleading and the incorporated documents themselves —
without the need to go to any external facts or to resolve any factual dispute.
The question here is not whether written notice of acceptance was in fact
given — it is whether the averment that it was given is present in the pleading. It is
not. In any event, the proposition that " even a weak case survives exception
if the essential elements are present" contains the determinative qualification:
the essential elements must be present. The essential element of a concluded
lease is not present.
H. CONCLUSION
[50] The Amended Particulars of Claim, read as a whole and together with the
incorporated Offer to Lease, does not disclose a concluded lease agreement.
The pleading avers the signing of an Offer to Lease — a document that on its
own terms and in express terms distinguishes between the signing of the offer
(which constitutes an irrevocable offer by the tenant) and the conclusion of the
agreement (which requires both signature by the landlord's authorised
representative and written conveyance of that acceptance to the tenant). The
Amended Particulars of Claim pleads the former and is silent as to the latter. It
does not aver the conclusion of a lease agreement; it does not plead
compliance with the Clause 2 method of acceptance; it does not plead waiver
of that requirement; and it does not plead the conduct from which tacit
conclusion of the lease could be inferred. Without an averment of a validly
concluded lease agreement, the claim for arrear rental cannot be sustained,
and without a validly pleaded principal obligation, the accessory suretyship
claim against the Second Defendant equally cannot be sustained.
[51] The first ground of exception accordingly succeeds, and the second ground
succeeds consequentially. The Plaintiffs have already amended their
Particulars of Claim once, following the first exception, and the deficiency
identified in the present exception was apparent on the face of the amended
identified in the present exception was apparent on the face of the amended
pleading. Notwithstanding this, the Court not persuaded that a further
amendment is incapable of curing the deficiency. The Plaintiffs may be in a
position to aver, in good faith, that written notice of ac ceptance was given, or
to plead the facts from which waiver or tacit conclusion of the lease may be
inferred. Leave to amend is accordingly granted on the conditions set out in
the order below.
I. COSTS
[52] The Second Defendant has been substantially successful on both grounds of
exception. The ordinary principle that costs follow the event applies. The
Second Defendant seeks costs on the party -and-party scale, including costs
of counsel on Scale B. I agree that the party -and-party scale is appropriate.
Whilst Clause 14 of the Deed of Suretyship provides for attorney -and-client
costs in respect of any action instituted in terms of the deed, this is an
interlocutory step in the proceedings and the contractual costs clause was not
relied upon by the Second Defendant in support of an enhanced costs order; to
the contrary, the Second Defendant sought only party -and-party costs. The
Plaintiffs, for their part, sought attorney -and-client costs only in the event that the
exception was dismissed (which it has not been). Costs are accordingly
awarded on the party- and-party scale, including the costs of counsel on Scale
B.
J. ORDER
[53] In the result, the following order is made:
1. The Second Defendant's exception dated 1 December 2025 to the
Plaintiffs' Amended Particulars of Claim filed on 8 November 2024 is
upheld.
2. The Plaintiffs are granted leave to deliver a further Notice of Intention
to Amend and its amended Particulars of Claim within twenty (20)
days from date of this order.
3. The Plaintiffs are ordered to pay the Second Defendant's costs of the
exception, jointly and severally, the one paying the other to be
absolved, on the party -and-party scale, including the costs of
Counsel on Scale B.
BY ORDER
SM MARITZ AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
APPEARANCES
Counsel for the Plaintiffs: Adv LA Pretorius
Instructed by: Mark Efstratiou Inc, Pretoria (Ref: MR
Efstratiou/E15926)
Counsel for the Second Defendant: Adv NS Beket (Umhlanga Chambers)
Instructed by: MCH Attorneys Inc (c/o Friedland Hart
Solomon & Nicolson, Pretoria) (Ref: MD
Maharaj/G0370.25)
Date of hearing: 13 May 2026
Date of judgment: 25 May 2026