IN THE HIGH COURT OF SOUTH AFRICA
(MPUMALANGA DIVISION , MBOMBELA MAIN SEAT)
(1) REPORTABLE:NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
SIGNATURE
03/08/2026
DATE
In the matter between:
NEOFRESH(PTY)LTD
and
LEBOMBO AGRI PETROLEUM (PTY) LTD
CASE NUMBER: 36/2025
APPLICANT
RESPONDENT
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 email. This Order is further placed on the Court
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file of this matter by the Judge or her/his Secretary. The date of this order is deemed
to be 3 August 2026.
____________________________________________________________________
JUDGMENT
____________________________________________________________________
GUMEDE AJ
1. This is an exception taken by the defendant to the plaintiff's particulars of claim,
on the stated basis that the particulars “lack the necessary averments which
are necessary to sustain a cause of action.” Eight grounds of exception were
raised.
BACKGROUND
2. The plaintiff instituted action against the defendant for payment of R13 623
504.24, pleaded on three alternative bases: a claim in contract; failing that, a
claim in delict; and failing that, a claim founded on the Consumer Protection Act
68 of 2008 (“the CPA”).
3. The plaintiff's case is that, pursuant to a partly written, partly oral agreement
concluded on or about 4 February 2020, it purchased diesel from the defendant
from time to time between the period February 2020 and October 2023. It
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alleges that the defendant supplied diesel contaminated with a substance that
ought not to have been present therein. The plaintiff further alleges that the
contaminated diesel was used in its machinery, and that the engines of that
machinery were damaged as a result. The plaintiff claims direct damages of R4
383 287.24 and consequential damages in the amount of R9 240 217.00.
4. The defendant delivered a notice in terms of Rule 35(14), which it contends that
the plaintiff did not respond, and thereafter delivered its notice of exception on
5 March 2025.
THE LEGAL FRAMEWORK
5. The test on exception is whether on all reasonable readings of the facts
pleaded, no cause of action may be made out.
6. The onus rests upon the excipient who alleges that a summons discloses no
cause of action to persuade the court that the pleading is excipiable on every
interpretation that can reasonably be attached to it.
7. Rule 23(1) of the Uniform Rules provides for an exception where a pleading is
vague and embarrassing, or where it lacks averments necessary to sustain an
action or defence.
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8. These are two distinct grounds of exception with different procedural
requirements.
9. Where an excipient contends that a pleading is vague and embarrassing, Rule
23(1)(a) requires it first to afford the opposing party notice and an opportunity
to remove the cause of complaint.
10. It is common cause that no such notice was given; the Rule 35(14) notice on
which the defendant relies is not a substitute for it.
11. The parties agree that a benevolent, rather than an unduly strict or over -
technical, approach is adopted. In its argument, the defendant agrees that the
court should not look at the pleading with a magnifying glass of too high power.
As such, the pleading is read as a whole rather than paragraph by paragraph
in isolation.
12. Where the real complaint is a want of particularity, the appropriate remedy is a
request for further particulars, not an exception.
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THE GROUNDS OF EXCEPTION
First ground of exception
13. The defendant complains that the plaintiff has not pleaded the exact dates and
quantities of diesel purchased, nor identified which consignment(s) contained
the contaminating substance, with the result that the defendant cannot tell
which consignment is complained of and cannot assess whether the claim, or
part of it, has prescribed.
14. The plaintiff pleads that the agreement was concluded on 4 February 2020 by
the persons stated at paragraph 4 of the particulars of claim.
15. The plaintiff proceeds to plead performance under the agreement from
February 2020 to October 2023 . The breach is said to be the contaminated
diesel and the damages flowing from that breach are quantified as per
annexures “B” and “C”.
16. In my view, the elements of a breach of contract are properly pleaded, namely
conclusion of a contract, breach, causation and quantum.
17. The absence of the precise date of each purchase, or identification of the
specific consignment said to have been contaminated, goes to particularity
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rather than to the existence of a cause of action and could easily be remedied
by a request for further particulars.
18. In the premises, the first ground of exception is dismissed.
Second ground of exception
19. Under this ground, the defendant contends that the plaintiff failed to plead when
and in what manner the alleged agreement was accepted by the plaintiff and
conveyed to the defendant as well as when performance occurred.
20. This loses sight of the fact that on exception, the allegations in the particulars
are assumed to be true; the question is not whether the plaintiff has proved its
case, but whether, assuming the truth of what is pleaded, a cause of action is
disclosed. The particulars set out when, where and by whom the written portion
of the agreement was concluded, and the terms relied upon are set out in
paragraph 7. Nothing more is required at the level of pleading.
21. In the premises, the second ground of exception is also dismissed.
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Third ground of exception
22. The defendant contends that the plaintiff has not pleaded the day, place and
manner in which the oral portion of the agreement was concluded, nor which of
the pleaded terms are express, tacit or implied.
23. Paragraph 4 pleads that the agreement was partly written and partly oral,
concluded on or about 4 February 2020 by the identified persons; paragraph 6
pleads the place of conclusion. Paragraph 7 pleads the relevant terms as
express, alternatively tacit, further alternatively implied. Rule 18(6) requires a
party relying on a contract to plead whether it is written or oral and when, where
and by whom it was concluded — the plaintiff has done so, albeit that the terms
are pleaded in the alternative.
24. The third ground of exception is likewise dismissed.
Fourth ground of exception
25. This ground again concerns the absence of precise dates, paragraph 8 pleads
a period February 2020 to October 2023 during which the parties dealt with
each other, which suffices for the purpose of pleading the cause of action.
26. The fourth ground of exception is also dismissed.
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Fifth ground of exception
27. The defendant contends that the plaintiff has failed to aver that the plaintiff is
the owner of the goods which sustained damage. Paragraph 10 of the
particulars refers to the plaintiff's machines into which the contaminated diesel
was poured and which suffered the pleaded damage.
28. On a reasonable and benevolent reading, this constitutes an averment
sufficient at the pleading stage to found a claim for damage to those machines.
Proof of ownership is a matter for trial.
29. The fifth ground of exception is dismissed.
Sixth ground of exception
30. The defendant complains that the particulars and/or Annexure “C” do not
identify the counterparty to whom services would be rendered.
31. These are complaints in respect of the detail underlying the quantification of
consequential damages which can be properly addressed by further particulars
and by evidence at trial.
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32. Paragraph 12 states that consequential damages were suffered as a result of
the breach and is quantified in Annexure “C”. The identity of any third party to
whom the plaintiff might have rendered services is not an averment necessary
to sustain a claim for damages arising from the defendant's own breach of its
contract with the plaintiff.
33. This ground of exception is likewise dismissed.
Seventh ground of exception
34. The defendant contends that the plaintiff has failed to plead when, how and by
whom demand was made.
35. A claim for damages for breach of contract does not require a prior demand as
a jurisdictional fact; the summons itself operates as a demand. The averment
in paragraph 13 to the effect that notwithstanding lawful demand, payment was
not made is, at worst, unnecessary.
36. The seventh ground of exception is also dismissed.
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Eighth ground of exception
37. This ground is a repetition of the complaint that the particulars the lack the
precise dates of purchase and adds that the plaintiff has failed to plead that the
defendant was its sole supplier of diesel or to plead how the diesel was
unsuitable.
38. The plaintiff is not required to plead that the defendant was its exclusive
supplier; that is not an element of either the delictual or the statutory claim under
the Consumer Protection Act.
39. The manner in which the diesel was unsuitable and the manner in which the
defendant's holding-out to the public are matters for trial and not of pleading.
40. I am of the view that r ead benevolently, the particulars set out the elements of
a delictual claim
41. The eighth ground of exception is dismissed.
CONCLUSION
42. I am not persuaded that any of the eight grounds relied upon by the defendant
establishes that the particulars of claim, on any of the three causes of action
pleaded, lack an averment necessary to sustain that cause of action.
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43. As already stated, w here the defendant's real complaint is a want of
particularity, a request for further particulars should suffice and should the
defendant wish to contend that the particulars are vague and embarrassing, its
remedy would have been a delivery of a notice in terms of Rule 23(1)(a).
COSTS
44. The plaintiff has asked for costs on the attorney and client scale, on the basis
that the exception was frivolous and raised only to delay the matter. While the
exception fails on every ground, I am not persuaded that a punitive costs order
is warranted.
45. The grounds raised, although unsuccessful and conflat es vagueness with an
absence of a cause of action, cannot fairly be characterised as vexatious or
advanced in bad faith.
In the premises, the following order is made:
1. The exception is dismissed.
2. The defendant is to pay the plaintiff's costs of the exception
For the Plaintiff:
Instructed by:
Adv MP van der Merwe SC
Du Toit-Smuts Attorneys
For the Defendant: Adv DD Swart
Zodwa Gumede
Acting Judge of the High Court
Instructed by: Cronje de Waal - Skhosana Incorporated
Date of Hearing: 10 February 2026
Date of Judgment: 3 August 2026
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