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[2026] ZAGPPHC 684
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Van Der Merwe v PQJ Projects (Pty) Ltd (144418/2024) [2026] ZAGPPHC 684 (5 June 2026)
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IN THE HIGH COURT
OF SOUTH AFRICA
(GAUTENG
DIVISION: PRETORIA)
Case number:
144418/2024
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED
DATE 5 June
2026
SIGNATURE
In
the matter between:
GABRIEL
STEPHANUS VAN DER MERWE
Excipient
and
PQJ
PROJECTS (PTY) LTD
Respondent
In
re:
PQJ
PROJECTS (PTY LTD
Plaintiff
and
GABRIEL
STEPHANUS VAN DER MERWE
Defendant
JUDGMENT
MINNAAR AJ,
Introduction:
[1]
On 17 November 2023, the plaintiff
purchased the property situated at Portion 693, Farm 369, Boschkop,
Registration Division J.R,
Gauteng, from the defendant. The purchase
was regulated by a written offer to purchase (“
the
agreement”
). In December 2023,
the property was registered in the plaintiff’s name.
[2]
In March 2025, the plaintiff instituted an
action against the defendant, in terms of which the plaintiff claims
payment from the
defendant in the amount of R998 708.15,
together with interest and costs.
[3]
The defendant delivered a notice to defend
the action and also delivered an exception to the plaintiff’s
particulars of claim.
The exception is premised thereon that the
plaintiff’s particulars of claim fail to disclose a cause of
action, alternatively,
lack averments necessary to sustain a cause of
action.
The respondent’s
pleaded case:
[4]
In essence, it is the plaintiff’s
pleaded case that, although the property was sold voetstoots, the
defendant, in the negotiations
leading up to the sale, explicitly
advised the plaintiff’s director that the property had
sufficient quantity and quality
of flowing water. Premised on the
defendant's explicit representation, the plaintiff was induced to
enter into the agreement. In
this regard, it is the plaintiff’s
pleaded case:
a.
The defendant, at the time of the sale of
the property, was aware that the property did not have sufficient
quality and quantity
of water available (“
the
latent defect”
).
b.
The defendant, deliberately,
dolo
malo,
failed to disclose the latent
defect to the plaintiff and explicitly warranted against the latent
defect.
c.
The aim of the defendant’s deliberate
non-disclosure or warranty against the latent defect was to induce
the plaintiff to
enter into the agreement; alternatively, it was
foreseeable that the representation could induce the plaintiff to
enter into the
agreement.
d.
At the time of the negotiations, and at the
time of contracting in terms of the agreement, the representations
and warranties made
by the defendant were, to the knowledge of the
defendant, false in that the true facts were that insufficient water
was available
on the property.
e.
During the negotiations, and at the time of
contracting, the latent defects were not visible or discoverable upon
inspection by
the plaintiff, and would not have been visible or
discoverable by inspection by the ordinary purchaser.
[5]
The plaintiff pleads that, as a result of
the defendant’s misrepresentation, the plaintiff suffered
damages in the amount
of R998 708.18.
[6]
The alleged damages are set out in annexure
“D” to the particulars of claim and provide, inter alia,
for the sinking
of a borehole and setting up water infrastructure.
The exception:
[7]
The exception is premised on five grounds,
which can be summarised as follows:
a.
Clause 8 of the agreement (“
the
voetstoot clause
”) prevents the
plaintiff from relying on the latent defect.
b.
Clause 9 of the agreement does not warrant
the condition of the property, but in fact stipulates that the
plaintiff was not induced
to enter the agreement by any
representations made by or on behalf of the defendant.
c.
The parties entered into the agreement,
considering the above two impediments, against the plaintiff’s
action, contained in
the agreement, subject to a Shifrin Clause,
which in itself impedes the parties’ right to enter into any
informal agreements
unless in writing and signed by the parties.
Notwithstanding this, the plaintiff relies on representations
allegedly made by the
defendant outside the written agreement.
d.
Clause 15.3 of the agreement provides that
the defendant is not liable to provide a borehole and a borehole
certificate, while the
plaintiff claims damages for precisely that.
e.
In the particulars of claim, the plaintiff
is relying on allegations against the agreement, which is against the
so-called parol
evidence, the
caveat
subscriptor
and the integration rule.
[8]
It is the defendant’s case that, on
these grounds, the plaintiff fails to disclose a cause of action in
its particulars of
claim, alternatively, does not make allegations to
sustain a cause of action.
[9]
The defendant seeks an order that the
plaintiff’s claim be dismissed, alternatively that the
exception be upheld and the particulars
of claim be struck as a
result.
Legal analysis and
discussion:
[10]
In essence, all the grounds of exception,
although differently framed, are essentially the same, as the root of
the complaints is
effectively that the plaintiff’s particulars
of claim offend against the contract entered into between the
parties.
[11]
In
Living
Hands (Pty) Ltd v Ditz
2013 (2) SA 368
(GSJ), Makgoka J conveniently summarised the applicable general
principles distilled from case law dealing with exceptions. In
paragraph 15 of the judgment, Makgoka J provided the overview:
“
(a)
In considering an exception that a pleading does not sustain a cause
of action, the court will
accept, as true, the allegations pleaded by
the plaintiff to assess whether they disclose a cause of action.
(b)
The object of an exception is not to embarrass one's opponent or to
take advantage of a
technical flaw, but to dispose of the case or a
portion thereof in an expeditious manner, or to protect oneself
against an embarrassment
which is so serious as to merit the costs
even of an exception.
(c)
The purpose of an exception is to raise a substantive question of law
which may have
the effect of settling the dispute between the
parties.If the exception is not taken for that purpose, an excipient
should make
out a very clear case before it would be allowed to
succeed.
(d)
An excipient who alleges that a summons does not disclose a cause of
action must establish
that, upon any construction of the particulars
of claim, no cause of action is disclosed.
(e)
An over-technical approach should be avoided because it destroys the
usefulness of the exception
procedure, which is to weed out cases
without legal merit.
(f)
Pleadings must be read as a whole and an exception cannot be taken to
a paragraph
or a part of a pleading that is not self-contained.
(g)
Minor blemishes and unradical embarrassments caused by a pleading can
and should be cured
by further particulars.”
[12]
In amplification to Makgoka J in
Living
Hands
, Maier-Fawley J, in
Merb
(Pty) Ltd and Others v Matthews
and
Others
(2020/15069) [2021] ZAGPJHC 693
(16 November 2021), also provided a summary of the legal principles
applicable in deciding an exception
where it is alleged that no cause
of action is disclosed:
“
9.
Exceptions are also not to be dealt with in an over-technical manner,
and as such,
a court looks benevolently instead of over-critically at
a pleading.
10. An
excipient must satisfy the court that it would be seriously
prejudiced if the offending
pleading were allowed to stand, and
an excipient is required to make out a very clear, strong case before
the exception can succeed.
11. Courts
have been reluctant to decide exceptions in respect of fact bound
issues.
12. Where
an exception is raised on the ground that a pleading lacks averments
necessary to sustain a cause
of action, the excipient is required to
show that upon every interpretation that the pleading in question can
reasonably bear,
no cause of action is disclosed. It is trite that
when pleading a cause of action, the pleading must contain every fact
which would
be necessary for the plaintiff to prove, if traversed, in
order to support his right to judgment (facta probanda). The facta
probanda
necessary for a complete and properly pleaded cause of
action importantly does not comprise every piece of evidence which is
necessary
to prove each fact (being the facta probantia) but every
fact which is necessary to be proved.”
[13]
For
an exception, complaining of a defect in the pleadings, to be
successful, the trite position is that it must be adjudicated
upon
the basis that all the allegations contained in the particulars of
claim are true.
[1]
[14]
Pleadings
must be looked at as it stands,
[2]
together with the facts agreed by the parties, if any, and no facts
outside those stated in the pleadings can be brought into issue,
except in the case of inconsistency, and no reference may be made to
any other documents.
[3]
[15]
Courts
are reluctant to decide upon an exception concerning the
interpretation of a contract.
[4]
And this is precisely what is before me: the interpretation of the
agreement and whether there was indeed a latent defect as pleaded
by
the plaintiff, or whether the defendant is protected by the
voetstoots clause.
[16]
I am bound to accept, as true, the
allegations pleaded by the plaintiff. In my view, the plaintiff
pleaded all the required
facta probanda
to sustain its cause of action. On every interpretation thereof, I am
satisfied that a cause of action is indeed disclosed.
[17]
Where there are, as in this case, fact
bound issues pleaded, a court should be reluctant to interfere.
[18]
The defendant is not seriously prejudiced
by the plaintiff’s pleaded case. There is a case to which the
defendant can reply.
[19]
Premised on the particulars of claim, and
the positive factual allegations contained therein, it would be
premature, at this stage,
to close the door on the plaintiff’s
pleaded case. The plaintiff is entitled to prove its case on the
latent defect, and
it can do so only at trial.
[20]
In my view, the defendant is placing the
cart before the horse, with the exception. It follows that the
exception must fail.
Costs:
[21]
The plaintiff is seeking a dismissal of the
exception with punitive costs on the basis that the exception is
meritless and that
it constitutes vexatious litigation.
[22]
In my view, it cannot be said that the
exception was brought for any ulterior or prior motives. The
defendant exercised a right
available to him in the course of
litigation and, as such, will not be punished by an adverse costs
order.
[23]
I am, however, mindful of the technical
nature of exceptions and, under those circumstances, costs will be
granted on Scale B.
Order:
Consequently, I make the
following order:
1. The
exception is dismissed, with the defendant to pay the costs of the
exception, such costs to be taxed on Scale
B.
Minnaar AJ
Acting Judge of the High
Court
Gauteng Division,
Pretoria
For
the plaintiff:
Adv M
Jacobs
Instructed
by Coombe Commercial Attorneys Inc.
For
the respondents:
Adv H
C van Zyl
Instructed
by Annelise Venter Inc.
Heard
on:
6
March 2026
Date
of judgment:
5
June 2026
[1]
Champion
v JD Celliers & Co. Ltd
1904
TS 788
at 790-1;
Amalgamated
Footwear & Leather Industries v Jordan & Co. Ltd
1948 (2) SA 891
(C);
Makgae
v Sentra Boer (Kooperatief) Bpk
1981 (4) SA 239
(T) at 244H – 245A
[2]
Pretorius
v Transport Pension Fund
2019
(2) SA 37
(CC) at 44F – G;
Brocsand
(Pty) Ltd v Tip Trans Resources
2021 (5) SA 457
(SCA) at par 14
[3]
Wellington
Court Share Block v Johannesburg City Council
1995 (3) SA 827
(A) at 833F;
Dilworth
v Reichard
[2002] 4 All SA 677
(W) at 681j – 682a;
Naidoo
and Another v Dube Transport Corp and Others
2022
(3) SA 390 (SCA)
[4]
Sun
Packaging (Pty) Ltd v Freulink
[1996] ZASCA 73
;
1996
(4) SA 176
(A) at 187J