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IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No: 2025-065277
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHERS JUDGES: YES/NO
(3) REVISED
DATE....26 May 2026
SIGNATURE
In the matter between:
S[...] B[...] First Plaintiff
P[...] B[...] Second Plaintiff
and
MATRIX CAR TRACKER First Defendant
PAUL FITCHET Second Defendant / Excipient
This order is made an Order of Court by the Judge whose name is reflected
herein, duly stamped by the Registrar of the Court and is submitted
electronically to the Parties/their legal representatives by e -mail. This Order
is further uploaded to the electronic file of this matter on Case Lines by the
Judge or his/her secretary. The date o f this Order is deemed to be 26 May
2026.
JUDGMENT
DU PLESSIS, AJ
INTRODUCTION
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1.
1.1. This is an exception brought by the second defendant, Mr Paul
Fitchet, against the particulars of claim of the first and second
plaintiffs, Mr S[...] B[...] and Mrs P[...] B[...]. The exception is taken
on three grounds, all directed at the contention that the particulars
of claim disclose no cause of action.
1.2. The matter was heard virtually. The second plaintiff, Mrs Baloyi,
appeared in person. I was informed that the attorney and counsel
previously on record for the plaintiffs no longer practise and are no
longer on record, and that Mrs Baloyi would represent herself at
the hearing of the exception but intends to obtain the services of a
new attorney as and when the matter proceeds. The excipient was
represented by Adv Carolissen.
1.3. The plaintiffs filed neither a practice note nor heads of argument. In
the absence of any such filing, and the matter having been argued
before me, the exception was disposed of on the papers and the
submissions of the excipient's counsel, together with such
submissions as Mrs Baloyi was able to advance in person.
1.4. For the reasons that follow, I am of the view that the exception
must be upheld, but that the plaintiffs ought to be afforded an
opportunity to amend their particulars of claim.
BACKGROUND
2.
2.1. The plaintiffs are a married couple residing in Soshanguve,
Pretoria. They are the registered owners of a Haval GWM H6 1.5T
Luxury SUV. On 10 December 2024, an entity which the plaintiffs
describe as "Matrix Car Tracker" installed a vehicle tracking device
in their motor vehicle.
2.2. On 22 December 2024, while the plaintiffs were travelling at night,
the vehicle is alleged to have suddenly locked all four wheels,
rendering it immobile. The plaintiffs say they were stranded in a
remote and unsafe location near Hammanskraal. While the first
plaintiff went in search of assistance, the second plaintiff was, on
the pleadings, sexually assaulted by three armed males who came
the pleadings, sexually assaulted by three armed males who came
upon her where she had concealed herself. The vehicle was
eventually towed away and the plaintiffs spent two nights at
Madileng Lodge before being transported to a GWM workshop in
Gezina.
2.3. The plaintiffs were subsequently informed by the workshop
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manager that the cause of the vehicle's immobilisation was, in their
words, the " irregular connections of the tracking device done by
Matrix". They allege ongoing psychological trauma, marital strain,
and out-of-pocket expenses arising from the incident.
2.4. A letter of demand was addressed to the first and second
defendants on 3 March 2025. The response, dated 27 March 2025,
came from one Hylton Petersen, described as " Head of Legal
Africa", and bears the letterhead of " Powerfleet". Liability was
rejected, save for an offer to pay (on proof) the cost of the two
nights' accommodation.
2.5. On 19 May 2025 combined summons was issued and served. The
first defendant is cited as " Matrix Car Tracker, a private company
registered in terms of the Companies Act ". The second defendant
is cited as Mr Paul Fitchet, said to be the managing director of the
first defendant. The plaintiffs seek payment of R5 001 832.00,
made up principally of two amounts of R2 500 000.00 each,
claimed in respect of the trauma allegedly suffered by each
plaintiff, together with the cost of accommodation and Uber
transport.
2.6. The second defendant filed notice of intention to defend on 30 May
2025 and, on 27 June 2025, served the present exception.
THE GROUNDS OF EXCEPTION
3.
Three grounds of exception are advanced:
3.1. First, that the first defendant — "Matrix Car Tracker " — is a non -
existent entity, not registered as a juristic person under the
Companies Act, 71 of 2008, and that the particulars of claim,
properly read with their annexures, themselves disclose that the
entity which responded to the letter of demand was Mix Telematics
Africa (Pty) Limited t/a Powerfleet, and not the entity cited.
3.2. Secondly, that no cause of action is disclosed against the second
defendant in his personal capacity. There is no allegation of a
contract concluded between the plaintiffs and the second
defendant; no allegation that the second defendant performed the
defendant; no allegation that the second defendant performed the
installation; no allegation that he was employed by the first
defendant or acted within the scope of any such employment; and
no factual basis pleaded for any vicarious or personal delictual
liability on his part.
3.3. Thirdly, that the plaintiffs have failed to plead the grounds of
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negligence and have failed to establish a legal duty of care owed
by the second defendant to the plaintiffs.
THE APPLICABLE LEGAL PRINCIPLES
4.
4.1. The principles governing an exception that a pleading discloses no
cause of action are well-settled and need no extensive elaboration.
4.2. As the excipient’s counsel reminded me, a cause of action is the
factual basis, the set of material facts, that begets the plaintiff’s
legal right of action (see Evins v Shield Insurance Co Ltd 1980 (2)
SA 814 (A)). The enquiry on exception is directed not at the merits
but at whether, on every reasonable interpretation of the facts
pleaded, a cause of action is made out.
4.3. In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising
Standards Authority SA 2006 (1) SA 461 (SCA) at para 3, Harms
JA reminded that exceptions provide a useful mechanism to weed
out cases without legal merit, but that an over -technical approach
is to be avoided. The court must take the facts pleaded as correct
and ask whether, on those facts, the claim is bad in law.
4.4. More recently, the principles were collected and restated in
Hlumisa Investment Holdings RF Ltd v Kirkinis 2020 (5) SA 419
(SCA) at para 22, and in Nat Industries (Pty) Ltd (in Liquidation) v
Grindrod Ltd 2024 (2) SA 506 (KZD). The pleading is to be read as
a whole, including the annexures attached to it. Where the
conclusions of law set out in the particulars of claim cannot be
supported on any reasonable interpretation of the pleaded facts,
the exception must succeed.
4.5. I have those principles in mind throughout what follows.
FIRST GROUND: NON-EXISTENT FIRST DEFENDANT
5.
5.1. The first ground is, on its face, narrow but, on closer examination,
of considerable consequence. The plaintiffs allege that " Matrix Car
Tracker" is a private company registered under the Companies
Act, 2008. They allege further that the second defendant is its
managing director.
5.2. The difficulty is twofold. First, no registration particulars are
managing director.
5.2. The difficulty is twofold. First, no registration particulars are
pleaded. Secondly, and decisively for present purposes, Annexure
F to the particulars of claim — the response to the letter of demand
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on which the plaintiffs themselves rely — is on the letterhead of
"Powerfleet" and is signed by a legal advisor who refers to " our
client". The chronology and practice note before me identify that
client as Mix Telematics Africa (Pty) Limited t/a Powerfleet. "Matrix
Car Tracker " is not, on the documents annexed by the plaintiffs
themselves, the legal entity which transacted with them.
5.3. A pleading must be read with its annexures. Where the annexures
contradict the body of the pleading, the contradiction enures to the
excipient's benefit at exception stage. The plaintiffs have, by their
own annexures, exposed the difficulty: the entity cited as first
defendant is not the entity which appears to have rendered the
services and which responded to the demand.
5.4. It does not avail the plaintiffs to say that the citation can be
inferred. A defendant must be identified with sufficient precision to
enable the court to enter judgment against it, and to enable that
defendant to know the case it must meet. A citation that does not
correspond to any juristic person in existence is, at best,
ambiguous and, at worst, fatal.
5.5. It must, however, be observed that this difficulty is in principle
capable of being cured by amendment. The misnomer or mis -
citation of a defendant is not, of itself, the death of a claim where
the true intended defendant is readily identifiable, has been
afforded notice, and has not suffered prejudice. That is a matter for
any application to amend that the plaintiffs may bring, and not for
the present exception.
5.6. On the pleading as it stands, however, the first ground of exception
must be upheld.
SECOND GROUND: NO CAUSE OF ACTION AGAINST THE SECOND
DEFENDANT
6.
6.1. The second ground attacks the joinder of Mr Fitchet in his personal
capacity. The plaintiffs' case against him is contained in
paragraphs 4, 7, 14 and 18 of the particulars of claim. He is said to
be the managing director of the first defendant, to have (together
be the managing director of the first defendant, to have (together
with the first defendant) installed the tracking device, and is
claimed against jointly for R5 001 832.00.
6.2. It is a fundamental rule of South African company law that a
company is a legal person distinct from its directors and
shareholders. A director is not, without more, liable for the
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contractual or delictual obligations of the company. To found a
personal claim against a director, a plaintiff must plead facts
establishing one of the recognised bases of personal liability: a
contract concluded with the director personally; a delict committed
personally by the director (with all elements pleaded); statutory
liability (for example, under section 218(2) of the Companies Act);
or a basis for piercing the corporate veil.
6.3. The particulars of claim contain none of these averments. There is
no allegation that Mr Fitchet was a party to any contract with the
plaintiffs. There is no allegation that he physically installed the
tracking device or supervised the installation. There is no
allegation that he owed the plaintiffs a personal legal duty distinct
from that of the company he is said to direct. There is no allegation
that he acted unlawfully or that he committed a wrongful act in his
personal capacity.
6.4. Counsel for the excipient correctly invoked the dictum in Moosa
NO v Hassam 2010:
"In the present case, the respondents base their cause of action
against the applicants, upon the written agreement. The written
agreement is a vital link in the chain of the respondents' cause
of action against the applicants. In order for the respondents'
cause of action to be properly pleaded, it is necessary for the
written agreement relied upon to be annexed to the particulars
of claim."
6.5. (See Moosa NO v Hassam 2010 (2) SA 410 (KZP) at para 10.)
The point is that the " vital link " between the plaintiffs and the
second defendant is simply absent. The plaintiffs do not plead a
contract with him, a delict by him, or any vicarious basis on which
he can be held liable.
6.6. Nor have the plaintiffs invoked any of the doctrines under which a
director may be held personally liable — section 218(2) of the
Companies Act, the principles in respect of personal delictual
liability of directors, or the requirements for piercing the corporate
liability of directors, or the requirements for piercing the corporate
veil. None of these is hinted at in the pleading.
6.7. It follows that, even on the most generous reading of the
particulars of claim, no cause of action is disclosed against the
second defendant. The second ground of exception must be
upheld.
THIRD GROUND: NEGLIGENCE AND DUTY OF CARE
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7.
7.1. The third ground overlaps to some extent with the second but is
properly treated as a discrete complaint. The plaintiffs' claim
sounds, ultimately, in delict. To succeed, the plaintiffs must
establish conduct, wrongfulness, fault, causation and damage.
7.2. The classic formulation of negligence remains that of Holmes JA in
Kruger v Coetzee 1966 (2) SA 428 (A) at 430E –F. Wrongfulness,
where the alleged conduct consists of an omission or causes pure
economic loss, must be specifically pleaded by reference to a legal
duty not to act negligently, and to facts which engage public and
legal policy considerations of the kind described in Country Cloud
Trading CC v MEC, Department of Infrastructure Development
2015 (1) SA 1 (CC) at para 22.
7.3. The particulars of claim allege, in paragraph 14, that " Matrix" was
"negligent when installing the tracking device ". That is the high -
water mark of the negligence pleading. There is no identification of:
7.3.1. the legal duty alleged to have rested on the second
defendant (as opposed to the first defendant);
7.3.2. the conduct said to constitute a breach of that duty by
the second defendant personally;
7.3.3. the respects in which the second defendant is alleged to
have fallen short of the standard of the reasonable
person;
7.3.4. the foreseeability of the kind of harm that is alleged to
have eventuated, having regard to the particular and
tragic chain of events; or
7.3.5. the basis on which wrongfulness is alleged in the
constitutional sense — that is, why it would be
reasonable to impose delictual liability on the second
defendant for the conduct of criminal third parties.
7.4. In M.B.M obo M.M v Elevator Maintenance Company (26267/21)
[2022] ZAGPPHC 256, the court upheld an exception on materially
similar grounds, observing that a plaintiff cannot simply aver
negligence; the basis for the alleged negligence and the legal duty
must be pleaded. The same difficulty arises here.
must be pleaded. The same difficulty arises here.
7.5. I make one further observation. The chain of causation pleaded by
the plaintiffs is, on any reading, an extended one. The alleged
negligent installation is said to have caused the vehicle to lock; the
locked vehicle is said to have caused the plaintiffs to be stranded;
the stranding is said to have caused them to be exposed to
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criminal attack. The question of legal causation in such a case —
whether the harm is too remote, and whether public and legal
policy permits its imputation to a tracking device installer — is a
question of substantial difficulty. It cannot be decided on the
present pleadings because the necessary factual averments have
not been made. That, too, is a matter the plaintiffs would do well to
address in any amended pleading.
7.6. I do not, at this stage, express any view on whether such a claim is
sustainable in principle. I hold only that, as pleaded, the third
ground of exception must succeed.
APPROPRIATE RELIEF
8.
8.1. The excipient seeks, as primary relief, that the exception be upheld
and that the particulars of claim be struck out or dismissed. In the
alternative, leave is sought for the plaintiffs to amend, failing which
the claim is to be dismissed.
8.2. The general approach of our courts is, where a pleading is
excipiable but the defects appear curable, to grant leave to amend
rather than to dismiss the claim outright. That accords with the
principle that a litigant should not be shut out of court on a
technicality where a properly pleaded case may yet be put up. This
consideration carries particular weight in the present matter, where
the second plaintiff appears in person and intends to instruct an
attorney as the matter proceeds.
8.3. The defects identified above are, in my view, capable of being
cured. The plaintiffs may be able to identify the correct juristic
person and substitute it as first defendant; they may be able to
plead a proper basis for joining Mr Fitchet (if there is one); and
they may be able to plead the grounds of negligence, the legal
duty, wrongfulness and causation with the necessary particularity.
Whether they will succeed in doing so is not for me to predict.
8.4. I shall accordingly afford the plaintiffs an opportunity to amend,
failing which the claim against the second defendant shall stand to
be dismissed.
COSTS
9.
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9.1. The excipient sought costs on the attorney and client scale, with
counsel's fees on scale C.
9.2. The successful party in an opposed exception is ordinarily entitled
to its costs, and I see no reason to deprive the excipient of them. I
bear in mind that the second plaintiff appeared in person and that
the underlying grievance is a serious one. I am not, however,
persuaded that any consideration warrants depriving the
successful excipient of the costs occasioned by an exception
which has succeeded on all three grounds. The costs will follow
the result, with counsel's fees on scale C as sought.
ORDER
10.
In the result, I make the following order:
10.1. The exception is upheld.
10.2. The plaintiffs are afforded leave, within thirty (30) days of the date
of this order, to deliver amended particulars of claim that address
the deficiencies identified in this judgment.
10.3. Failing such delivery within the period prescribed in paragraph 42.2
above, the plaintiffs' claim against the second defendant shall
stand dismissed without further order.
10.4. The plaintiffs are ordered to pay the second defendant's costs of
the exception, such costs to include the fees of counsel on scale
C.
____________________________
DU PLESSIS, AJ
Acting Judge of the High Court of South Africa
Gauteng Division, Pretoria
APPEARANCES
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Date heard: 26 May 2026 (virtual hearing)
Date of order: 26 May 2026
For the Plaintiffs: The Second Plaintiff, Mrs P Baloyi, in person
(Counsel and attorney previously on record no longer on record)
For the Second Defendant: Adv C Carolissen
Instructed by: Norton Rose Fulbright South Africa Inc, Johannesburg