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[2026] ZAGPJHC 964
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Ndamase and Another v K2015032194 (South Africa) (Pty) Ltd (2025/201701) [2026] ZAGPJHC 964 (27 August 2026)
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
JOHANNESBURG
CASE
NO:
2025-201701
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED: NO
DATE
27 August 2026
In the matter between:
NCUMISA
THEODORE
NDAMASE
First Plaintiff
MAKHENKODWA
MLONDOLOZI MAHLANGENI
Second Plaintiff
and
K2015032194
(SOUTH AFRICA) (PTY) LTD
Defendant/Excipient
JUDGMENT
VERVEEN
AJ:
This judgment is
handed down electronically by circulating it to the parties’
representatives by email and by uploading on
CaseLines.
Introduction
[1]
This judgment determines the defendant’s
exception under Uniform Rule 23(1) to the plaintiffs’ amended
particulars of
claim. The defendant advances two grounds. The first
concerns the replacement and installation costs claimed for specified
items:
the plaintiffs allegedly fail to plead that those items were
fixtures and fittings of a permanent nature under clause 7.1. The
second concerns the alleged failure to plead compliance with the
notice-to-remedy requirement in clause 9.2.
[2]
The plaintiffs seek contractual damages of
R842,900.00 arising from alleged breaches of the agreement of sale.
The argument upon
which they rely includes, among other things,
“Install new CCTV system”, “Assess removals &
supply cinema
equipment” and “Gas ovens - supply and
deliver”.
[3]
As to clause 9.2, the plaintiffs plead that
they were obliged to give the defendant seven days’ notice and
rely upon correspondence
dated 26 September 2025. The correspondence
is pleaded as a demand that the defendant “within a period of
14 (fourteen) days
effect payment” of R842,900.00.
[4]
The defendant submits that the particulars
contain neither the material averments which establish that the
listed items were permanent
fixtures, nor averments establishing a
compliant notice to remedy. The plaintiffs submit that the damages
claim is indivisible,
fixture status is for trial, and their 26
September letter allowed 14 days and substantially complied with
clause 9.2.
The applicable
principles
[5]
An
exception must be determined on the pleading as it stands, read as a
whole with the documents incorporated into it. It succeeds
only where
the excipient establishes that, on every reasonable interpretation,
the pleading does not disclose a legally recognised
cause of
action.
[1]
Exceptions must
nonetheless be dealt with sensibly and not over-technically.
[2]
[6]
The
material facts, rather than the evidence by which they will be
proved, must be pleaded. A cause of action comprises every fact
necessary to be proved, if traversed, to sustain the right to
judgment.
[3]
[7]
Where
a litigant relies on a contract subject to a condition, it must plead
and prove fulfilment of that condition.
[4]
Where the contract requires a demand and the expiration of a
stipulated cure period before enforcement, proof of the expiration
of
that period forms part of the cause of action.
[5]
The agreement
[8]
Clause 7.1 provides that “the
property includes all fixtures and fittings of a permanent nature in
or on or attached to the
property”, which the seller warrants
are in working order.
[9]
Clause 9.1 requires written notice “calling
upon [the defaulting party] to remedy such default” and affords
seven days
from receipt to comply. Clause 9.2 applies that mechanism,
mutatis mutandis
,
where the seller commits the breach: “I/we shall be obliged to
give the Seller notice, as set out in paragraph 9.1 above”.
[10]
Clause 9.3 provides that, where notice is
sent by email, “receipt shall be deemed on the day of
dispatch”, and that
a party giving notice “shall be
obliged to furnish a copy of said notice to HAMILTON’S PROPERTY
PORTFOLIO by way of
email transmission”.
First ground:
replacement and installation costs
[11]
The plaintiffs do not allege that the CCTV
system, alarm system, security/AVI cabling, cinema equipment or gas
ovens were fixtures
and fittings of a permanent nature, or plead
facts from which that conclusion follows. The particulars identify
the alleged removals
and quantify replacement cost. They do not plead
the material fact which makes removal a breach of clause 7.1.
[12]
The
plaintiffs’ contention that fixture status may be established
at trial confuses a
facta
probandum
with evidence. The nature of the item, its annexation and the
intention with which it was annexed may ultimately be proved by
evidence, but the plaintiffs must first plead that the item formed
part of the property and plead the factual basis for that conclusion.
An exception is not defeated by the possibility that evidence might
establish a material fact not pleaded.
[6]
[13]
Nor does the global formulation of the
damages prayer answer the complaint. The plaintiffs’ own
quotation differentiates distinct
losses. The alleged removal of
fixtures is a discrete alleged breach requiring its own material
averments, distinct from alleged
damage to the garden, pool,
electrical installation, or certificates of compliance. The first
ground accordingly succeeds as to
the replacement and installation
heads of damages.
Second ground: was the
pleaded notice compliant?
[14]
POC10 must be read as a whole, not merely
by reference to its ultimate demand. It identifies the agreement and
property, describes
in detail the alleged deterioration, removals,
non-compliances and safety hazards, and alleges that the defendant is
liable for
“all costs associated with getting the property into
its condition as at 29 October 2024 when the agreement was
concluded”.
It then demands R842,900.00—the quotation
cost of that restoration—within 14 days, failing which the
plaintiffs would
enforce their rights.
[15]
The letter does not employ the precise
phrase “remedy the default”. That is a consideration
which the defendant may
advance at trial. But clause 9.2 prescribes
no formulaic wording. The letter is reasonably capable of being
construed as identifying
the alleged defaults, requiring the
defendant within a defined period to place the plaintiffs in funds to
rectify them, and warning
that “Should you fail to act as
demanded herein above and within the stipulated period, Our Clients
will not hesitate to
enforce their rights”. It afforded 14 days
- twice the contractual cure period.
[16]
The
parties dispute whether that demand constituted compliance with
clause 9.2 and whether the required mode of delivery and copying
to
the agent can be established. Those issues turn on the proper
construction of the letter in its contractual and factual context,
and, potentially, proof of transmission and receipt. The excipient
has not established that the plaintiffs’ construction
is
untenable on every reasonable interpretation.
[7]
The second ground of exception must be dismissed. This finding does
not preclude the defendant from raising non-compliance with
clause
9.2 in its plea.
Order
[17]
The following order is made:
1.
The defendant’s exception is upheld
only in respect of the first ground, concerning the replacement and
installation heads
of damages based on clause 7.1.
2.
The defendant’s exception on the
second ground, concerning clause 9.2, is dismissed.
3.
The plaintiffs are granted 10 days from
service of this order to deliver further amended particulars of claim
in respect of the
first ground.
4.
The costs of the exception are reserved for
determination at the trial.
P VERVEEN
Acting Judge of the High
Court
Johannesburg
APPEARANCES
:
Applicant
: Advocate M Booysen
Instructed by
: Bregman Moodley Attorneys Inc
Respondent
: Advocate D Ndlovu
Instructed by
: Smith Bekwa Incorporated
Hearing
: 24 August 2026
Judgment
: 27 August 2026
[1]
Tembani
and Others v President of the Republic of South Africa and Another
2023
(1) SA 432 (SCA) para 14
.
[2]
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
2006
(1) SA 461 (SCA) para 3
.
[3]
McKenzie
v Farmers’ Co-Operative Meat Industries Ltd
1922
AD 16 at 23
.
[4]
Kate’s
Hope Game Farm (Pty) Ltd v Terblanchehoek Game Farm (Pty) Ltd
1998
(1) SA 235 (SCA) at 241B–D
.
[5]
Henriques
and Another v Lopes
1978
(3) SA 356 (W) at 359C–D
.
[6]
McKenzie
v Farmers’ Co-Operative Meat Industries Ltd
supra
.
[7]
Tembani
and Others v President of the Republic of South Africa and Another
supra
.