SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
compliance with the law and SAFLII Policy
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case No: 14705/2024
In the matter between:
WILLIAM TOBIAS JACOBUS OOSTHUIZEN Plaintiff
and
GEORGE MICHAEL CASSAR N.O. First Defendant
CAROLYN COLLEEN CODBURN N.O. Second
Defendant
BARRY SCOTT NAPIER N.O. Third
Defendant
GEORGE MICHAEL CASSAR Fourth Defendant
PRIZETRADE 31 CC Fifth Defendant
Neutral citation: Oosthuizen v Cassar NO & Others Case No 14705/2024
ZAWCHC (19-08-2026)
Coram : MAPOMA, AJ
Heard : 4 May 2026
Judgment : 19 August 2026
Summary : Exception taken by defendants against plaintiff’s particular
of claim – claim based on written agreement – exception based on alleged
failure to disclose cause of action - and pleadings allegedly vague a nd
embarrassing - contract based on suspensive conditions - failure to plead
fulfilment or waiver of suspensive conditions – render pleadings excipiable –
for having failed to make the necessary averment to sustain the cause of action
– summons not vague and embarrassing.
ORDER
1. The exception upheld.
2. The plaintiff is granted leave, if so advised, to amend the particulars of claim
within 30 days from the date of this order.
3. The plaintiff shall pay costs of the exception on a party and party scale,
including counsel’s costs on scale B of the High Court.
JUDGMENT
MAPOMA, AJ
[1] This matter concerns an exception taken by the first to the fourth defendants
(‘the excipients’) against the plaintiff’s amended particulars of claim , in which
the plaintiff claims from the defendants , payment of the amount of
R2 277 235.84 as damages occasioned by the alleged breach of a written
purchase and sale agreement (‘the agreement’).
[2] The defendants’ exception is based on t wo grounds, first, that the amended
particulars of claim ( ‘the particulars of claim ’) lack the averment necessary to
sustain the cause of action and second, that the particulars of claim are vague
and embarrassing. The plaintiff resists the exception , contending that neither of
the complaints is sustainable in law , for the reasons to be alluded to in more
detail in this judgment. The ensuing paragraphs pertaining to the parties and the
pleaded facts provides relevant background to the exception.
The Parties
[3] The plaintiff is a farmer and business man. The first , second and third
defendants are the trustees of the George Cassar Family Trust with IT No 6[....]
(“the Trust”), sued in their official capacities as such. The fourth defendant is a
businessman who has a loan account i n his favour in respect of the fifth
defendant. The fifth defendant, Pri zetrade 31 CC, is a duly incorporated close
corporation in which it appears, the Trust has members interests.
Relevant Background
[4] According to the pleaded facts in the particulars of claim, 1 on 28 September
2021, the plaintiff and the defendants concluded a written purchase and sale in
terms of which the plaintiff agreed to purchase from the Trust, the Trust’s 100%
membership interest in the fifth defendant for the purchase price of R1 0 070
847.00.2 It is also pleaded that t he plaintiff would purchase the fourth
1 Paragraph 10, particulars of claim.
2 Paragraph 10.1, particulars of claim, referring to clauses 1.2 and 8.1.2 of the sale agreement.
defendant’s loan account held in his favour in respect of the fifth defendant for
an amount of R539 152.09,3 and that plaintiff would also be liable for the
agent’s commission in the amount of R390 000 .00.4 A copy of the sale
agreement relied upon by the plaintiff is annexed in the particulars of claim
marked POC 1.5
[5] The plaintiff further pleaded that the plaintiff agreed to purchase the
membership interest and the business as a going concern , with effect from 1
September 2021 (“the effective date”), subject to the fulfilment or waiver of the
suspensive conditions, In the regard, the pleadings make reference to clauses 3.1
and 4.7 of the sale agreement.6
[6] The relevant clauses 3.1, 3.2 and 4.7 of the agreement states as follows:
“3.1 The Purchaser agrees to purchase the member ship interest and Business as a going
concern from the seller with effect from the effective date subject to the fulfilment
or waiver of the suspensive conditions.
3.2 After the fulfilment or waiver of the Suspensive Conditions ownership , risk and
benefits in the Business will be deemed to have passed to the Purchaser on the
Effective Date….
4.7 ‘Effective Date’ shall mean 1 September 2021 , as being the date on which the
business is run as a good concern for the risk and benefit of the Purchaser.”
[7] The material conditions of sale described under suspensive conditions were
referred to as contained in Appendix 4 of the agreement and included, inter alia,
the zoning of Portion 51 of the farm , identified as Port Beaufort, number 484
held under the title deed T[....], (“the property”) as Business; fixed assets being
confirmed; 6 months financial statements reflecting the loan account being
3 Paragraph 10.3, particulars of claim, referring to clauses 1.2 and 8.1.1 of the sale agreement.
4 Paragraph 10.3, particulars of claim, referring to clauses 23.2 read with 23.4 of the sale agreement.
5 PoC1 is titled “Agreement of the sale of a member’s interest and claim on loan account (including Sale of
Business as a Going Concern)”.
6 Paragraph 10.3, particulars of claim, referring to clauses 3.1 read with 4.7 of the sale agreement.
provided; and clearance certificates in respect of plumbing, gas, electric and
beetle being provided by the fifth defendant before the transfer date.
[8] The plaintiff also alleged in the particulars of claim that he complied with
his obligations in terms of the agreement , which include payment of the
purchase price in the amount of R1 800 000 to the Trust; taking possession of
the Trust’s immovable property to be zoned as business , and taking possession
of the supermarket, the bottle store and the business as identified in the
agreement payment of an amount of R87 235.84 for purchasing fuel for the
benefit of the Trust ; and payment of the agent’s commission in the amount of
R390 000.00 on 18 October 2021.
[9] The plaintiff further alleged that the Trust materially breached the terms of
the agreement and set out his averments in backing up the claim of breach. He
also pleaded that the defendants were duly notified of the breach by his
attorneys on or about 24 December 2021, alternatively 13 January 2022,
alternatively 24 January 2022 . The plaintiff has also pleaded that the numerous
breaches by the Trust amounted to repudiation and that o n 24 January 2022, his
attorneys d elivered a let ter, a copy of which is annexed in the particulars of
claim, notifying the Trust of his acceptance of the repudiation, hence his claim.
Exception
[10] The defendants’ first cause of complaint is that the particulars of claim
do not disclose a cause of action, in that the plaintiff failed to plead the
fulfilment or waiver of the suspensive condition, which is a condition precedent
to pursuing the claim, and that by so doing, the plaintiff impermissibly treats the
suspensive conditions as contractual terms capable of breach.
[11] The second ground of exception is that the particulars of claim are vague
and embarrassing in that the plaintiff has failed to ple ad with sufficient
precision or clarity whether the written agreement relied upon concerns the
purchase of the members hip interest and loan account o nly, or the business
itself that is conducted by the fifth defendant.
Issues
[12] In light of the above facts, t he issue for determination is whether the
particulars of claim are excipiable on the grounds raised by the defendants. In
particular, the pertinent issues are two-fold. The first leg is whether the alleged
failure by the plaintiff to expressly aver the fulfilment o r waiver to the
suspensive conditions render the pleadings bad in law or failing to disclose the
cause of action and therefore excipiable.
[13] The second is whether the plaintiff’s alleged failure to plead with sufficient
clarity – whether the written agreement relied upon concerns the purchase of the
membership interest and loan account only, or the business itself – renders the
pleading vague and embarrassing to the extent that the defendant is prejudiced
from pleading.
Legal Principles on Exception
[14] Rule 18 (4) of the Uniform Rules of Court provide s that every pleading
shall contain a clear and concise statement of the material facts upon which the
pleader relies for the claim, defence, or answer to any pleadings with sufficient
particularity to enable the opposing party to reply thereto.
[15] Exception provides a useful tool to we ed out unfounded claims at an early
stage to save the litigants from costs of pursuing a hopeless case. However, it is
imperative that exception must be addressed with careful consideration. When
ceased with exception, t he court looks at the plead ing benevolently instead of
over-technically. An excessively technical approach undermines its utility and
must be avoided.7
[16] When exception is taken on the basis that it fails to make the averment s
necessary to sustain a cause of action , the excipient must satisfy the court that
upon every interpretation which the pleading can reasonably bear, no cause of
action is disclosed.8
[17] Pleadings must be r ead and considered wholistically and not by isolating
individual allegations from their context .9 Further, if there is any uncertainty
regarding the intention of the pleader , an excipient cannot avail himself thereof
unless he shows that upon any construction of the ple adings, the claim is
excipiable.10
[18] In deciding an exception, the court’s approach is to accept that the factual
allegations in the pleading for the purposes of assessing the exception.11
[19] It is tri te that when pleading for the cause of action , the pleading m ust
contain all the facts which would be necessary for the plaintiff to prove , if
traversed, in order to support his right to judgment (facta probanda) . In this
regard, care must be taken to distinguish facta probanda, that is necessary for a
complete and properly plea ded cause of a ction, from evidence which is
7 Telematrix (Pty) Ltd v Advertising Standards Authority SA 2006 (1) SA 461 (SCA) at 465H.
8 Trope v South African Reserve Bank and Another 1992 (3) SA 208 (T).
9 Nel and Others NNO v McArthur and Others 2003 (4) SA 142 (T) at 149F.
10 Klerck NO v Van Zyl and Maritz NNO and Another and Related Cases 1989 (4) SA 263 (SE) at 288E-F.
11 Trustees for the time being of the Burmilla Trust and Another v President of the RSA and Another (64/2021)
[2022] ZASCA 22; [2022] 2 All SA 412 (SCA); 2022 (5) SA 78 (SCA).
necessary to prove each fact (facta probantia). What must be pleaded is every
fact which is necessary to be proved, not evidence.12
[20] An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not his legal validity . Thus, such an
exception can succeed only if it is vague and its vagueness causes
embarrassment of such a nature that the excipient is prejudiced from pleading.
[21] In the backdrop of the factual matrix and the applicable legal principles
alluded to above, the Court will analyse the defendants ’ exceptions and make
the required determination.
Whether the particulars of claim fail to disclose cause the cause of action
[22] The thrust of the defendants’ contention is that for a contract that is subject
to suspensive conditions as plead ed, the suspensive condition must have been
fulfilled or waived for the contract to be enforceable. The defendants’ complaint
is that the plaintiff alleges that the Trust had breached the contract, alternatively
repudiated the terms thereof, without pleading the fulfilment or waiver of the
suspensive condition , which is an integral averment for the contract to be
enforceable. The consequence of that , so goes the contention, is that the
particulars of claim fail to disclose the cause of action.
[23] Put differently , the defendants contend that the plaintiff cannot jump to
allege breach of a contract that is subject to suspensive condition , without
pleading that it was enforceable, by alleging that the suspensive conditions were
fulfilled or waived , because no cause of action can arise unless the sus pensive
conditions had been fulfilled or waived.
12 McKenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16 at 23.
[24] The question is whether the alleged defect claimed by the defendant
amounts to failure to make the averment necessary to sustain the claim. The
plaintiff contends the contrary.
[25] According to the plaintiff, the defendants ’ exception is based on a
fragmented reading of the particulars of claim . He contends that read
benevolently its enti rety as a whole , the particulars of claim show that the
plaintiff had pleaded the essential averments relating to the contract relied upon
which was implemented by the parties ; had alleged the material facts necessary
to sustain the claim; had pleaded his (plaintiff) performance on his obligations,
and that the defendants failed to comply with their obligations , resulting in the
termination of the agreement . He disputes that by not expressly pleading that
the conditions were fulfilled or waived would amount to failing to disclose the
cause action.
[26] It is so that the agreement has been pleaded and attached to the particulars
of claim, and averments have been made referring to the relevant terms of the
agreement. The plaintiff’s alleged performance in terms of the contract, the
alleged non-compliance by the defendants and alleged breach by the Trust, as
well as the alleged resultant repudiation have been pleaded. However, that is off
the point. The question is whether the fulfilment of the suspensive conditions
have been pleaded, and if not, whether that failure to so plead does render the
pleading excipiable as disclosing no cause of action.
[27] In Red Dunes of Africa v Masingit a Property Investment Holdings,13 the
SCA held that a party relying on an agreement that is subject to a suspensive
condition cannot rely on it to found any right where there is no averment that
13 [2015] ZASCA 99 para 11.
the suspensive conditions were fulfilled or waived. In asserting this legal
position, t he SCA cited the decision in Resisto Dairy (Pty) Ltd v Auto
Protection Insurance Co Ltd ,14 where it was stated that in our law the
suspensive condition must be pleaded and proved by the person relying on the
contract that is subject to it .15 This is so because, as the court said in Naidu v
Naidoo,16 if there was a suspensive condition to the agreement which had not
been fulfilled , there exist s no valid binding agreement of sale between the
parties.
[28] In this case, the contract is subject to suspensive conditions . There is no
averment in the particulars of claim that the suspensive conditions were fulfilled
or waived. This is an essential averment because it determines the enforceability
of the agreement, for the agreement will only be enforceable if suspensive
conditions have been fulfilled. Absent the fulfilment or waiver of the suspensive
conditions, there is no enforceable agreement, and consequently no breach may
arise from an unenforceable contract.
[29] In light of the legal position laid down in the above paragraph, it follows
that the plaintiff cannot rely on the agreement without pleading the fulfilment or
waiver of the suspensive conditio n. Accordingly, the particulars of claim lack
the averment necessary to sustain the claim . Thus, this ground of the exception
succeeds.
Whether the particulars of claim are vague and embarrassing
[30] Case law has it that t he summons is vague and embarrassing if there is
inconsistency amounting to contradiction between the summons and the
14 1963 (1) SA 632 (A) at 644G-H.
15 See also Kate’s Hope Game Farm (Pty) Ltd v Terblanchehoek Game Farm (Pty) Ltd 1998 (1) SA 235 (SCA).
16 1967 (2) SA 223 (N).
documents relied upon as the basis of the claim. 17 The defendants’ contention is
that the plaintiff has failed to plead with sufficient clarity the nature of the
agreement, that is whether it is the sale of the membership interest or of the
business, as these are two distinct assets.
[31] The defendants contend that the plaintiff’s claim is premised on the written
agreement marked annexure POC1, yet according to the defendants, annexure
POC is unclear as to whether the plaintiff purchased the membership inter est
and claims on loan account or th e business as described paragraph 10.5 of the
particulars of claim.
[32] An exception that is grounded on the averment that summons is vague and
embarrassing requires a two-fold consideration. The first enquiry is whether the
pleadings are vague, and the second is whether the vagueness leads to
embarrassment that causes prejudice to the other party. 18 Prejudice arises where
the excipient cannot plead or properly prepare for trial.19
[33] Paragraph 3 of annexure POC1 is titled ‘Agreement for Sale of Member’s
Interest and Claims on Loan Account in a Close Corporation (Including Sale of
Business as a Going Concern ’. The above title is followed by c lause 3.1
referred to above which also expressly states that the plaintiff agreed to
purchase the membership interest and business as a going concern from the
defendants. Further, in paragraph 10.4 of the particulars of claim, the plaintiff
pleaded that the plaintiff agreed to purchase the membership interest and the
business as a going concern.
17 Computer Users Council of South Africa Property Holdings CC v City of Johannesburg and Others [2023]
ZAGPJHC 805.
18 Shoprite Checkers (Pty) Ltd v Premier of the Western Cape Province and Another (2023) JDR 4533 (WCC)
para 8 - 9.
19 Levitan v Newhaven Holiday Enterprise CC 1991 (2) SA 297 (C) at 298I-J.
[34] In my view, based on the reading of the express terms of annexure POC1
and the pleading, it is clear that the parties contemplated that the plaintiff agreed
to purchase both the member’s interest and claims loan account , a nd the
business as a going concern. Further, whilst it is so that summons are vague and
embarrassing if there is inconsistency amounting to contradiction between the
summons and the documents relied upon as the basis of the claim , I am not
persuaded that there is any such contradiction between the particulars of claim
and annexure POC1 in this case.
[35] Even if it were to be assumed that the summon s were vague or
ambiguous as alleged, that would not be the matter, for the next question would
be whether the defendants are embarrassed thereby, in the sense that they would
be unable to plead without exposing themselves to prejudice. I do not find any
prejudice on the part of the defendants from pleading to the particulars of claim
on the basis set out. Thus, this ground must fail.
[36] In conclusion, having considered the exception and the grounds thereof, I
am satisfied that by failing to plead the fulfilment or waiver of the suspensive
conditions in the agreement, the plaintiff has failed to make the necessary
averment to sustain the cause of action. On this basis, the exception succeeds.
Costs
[37] The established principle that costs follow the results . I find no reason to
deviate from this principle in this case . The defendants have succeeded in the
exception and are thus entitled to an award of costs on a party and party scale ,
which include counsel fees at scale B.
Order
[38] In the result, the following order is made:
1. The exception upheld.
2. The plaintiff is granted leave, if so advised, to amend the particulars
of claim within 30 days from the date of this order.
3. The plaintiff shall pay costs of the exception on a party and party
scale, including counsel’s costs on scale B of the High Court.
_______________________
ZL MAPOMA
ACTING JUDGE OF THE HIGH COURT
Appearances
Counsel for the Plaintiff : Adv DJ Rabie
Instructed by : Johan Cronje Attorneys, Cape Town
Counsel for the Respondents : Mr Kulenkampff
Instructed by : Kulenkampff & Associates, Somerset West