IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION, MIDDELBURG
( 1) Reportable: ¥es/No
(2) Of interest lo other Judges: ¥85/No
(3) Revised: ¥es/No
In the matter between:
'J_~ \<>-o \~~\,
DATE
SHOPRITE CHECKERS (PTY) LTD
and
TERRANOVA LIQUOR (PTY) LTD
RUAN SERFONTEIN
MATTHYS DU TOIT LOUBSER
CASE NO: 1997/23
PLAINTIFF
FIRST DEFENDANT
SECOND DEFENDANT
THIRD DEFENDANT
Delivered: This judgment was handed down electronically by circulation lo the
patties' legal representatives by email. The date and time for hand-down is deemed
lo be 26 August 2026 at 10h00.
JUDGMENT
Schutte AJ
Introduction
[1] The parties are in the liquor trade, but their business relationship went sour
when the defendants ordered more liquor than they could afford. In this matter, the
plaintiff seeks payment of more than R3 million from the defendants. But the first
hurdle in the matter is an exception filed by the defendants against the plaintiff's
particulars of claim.
The particulars of claim
[2] The plaintiff alleges that it had concluded a franchise agreement with the first
defendant on 14 November 2017. In terms of the agreement, the plaintiff granted the
first defendant the right to operate an OK Liquor business and provided the first
defendant with a monthly credit facility, payable within 30 days of the date of the
statement.
(3] The plaintiff also alleges that it concluded a credit facility agreement on
5 February 2018 with the first defendant, in terms of which the plaintiff granted the
first defendant a credit facility, payable within 30 days from statement.
[4] The plaintiff claims that, in August 2022, it and the first defendant concluded a
verbal loan agreement in terms of which the plaintiff would advance R508 012 to the
first defendant. This loan was repayable within a reasonable time, or upon
cancellation of the franchise agreement, or upon perfection of the notarial bonds
which the plaintiff held over the first defendant's assets, or upon demand.
(5] The first defendant fell into arrears, and by January 2023, it owed the plaintiff
R3 008 630.57 and R508 012.00, respectively, in terms of the credit facility and the
verbal loan agreement.
[6] The second and third defendants' liability arises from a written surety they
signed in favour of the plaintiff for the debt of the first defendant.
2
The exception
[7] The defendants say the plaintiff's particulars of claim lack the necessary
averrnents to sustain a cause of action. They say that the credit facility agreement
incorporated the plaintiff's standard terms and conditions, which included a clause
stating that the credit facility agreement was the sole agreement between the plaintiff
and the first defendant regarding the subject matter, and that no variation,
amendment or cancellation of the credit facility agreement would be of any force and
effect unless in writing,
[8] The defendants objected to the fact that the repayment terms of the verbal
loan agreement were at variance with the express repayment terms of the credit
facility agreement, and furiher that the verbal agreement constituted a novation of the
credit facility agreement.
[9] The defendants request that their exception be upheld and the plaintiff's claim
be struck out or that the plaintiff be instructed to amend its particulars of claim.
The exception test
[i O] Rule 23 of tt1e Uniform Rules of CouIi, which regulates exceptions, stipulates
as follows:
"(1) Where any pleading is vague and embarrassing, or lacks averments which are
necessary to sustain an action or defence, as the case may be, the opposing party
may, within the period allowed for filing any subsequent pleading, deliver an
exception thereto and may apply to the registrar to set it down for hearing within 15
days after the delivery of such exception: Provided that -
(a) where a party intends to take an exception that a pleading is vague and
embarrassing such party shall, by notice, within 10 days of receipt of the pleading,
afford the party delivering the pleading, an opportunity to remove the cause of
complaint within 15 days of such notice; and
3
(b) the party excepting shall, within 1 O days from the date on which a reply to the
notice referred to in paragraph (a) is received, or within 15 days from which such
reply is due, deliver the exception.
(2) Where any pleading contains averments which are scandalous, vexatious, or
irrelevant, the opposite party may, within the period allowed for filing any subsequent
pleading, apply for the striking out of the aforesaid matter, and may set such
application clown for hearing within five clays of expiry of the time limit for the delivery
of an answering affidavit or, if an answering affidavit is delivered, within five days after
the delivery of a replying affidavit or expiry of the time limit for delivery of a replying
affidavit, referred to in rule 6(5)(f): Provided that -
(a) the party intending to make an application to strike out shall, by notice delivered
within 10 days of receipt of the pleading, afford the party delivering the pleading an
opportunity to remove the cause of complaint within 15 days of delivery of the notice
of intention to strike out; and
(b) the court shall not grant the application unless it is satisfied that the applicant will
be prejudiced in the conduct of any claim or defence if the application is not granted.
(3) Wherever an exception is taken to any pleading, the grounds upon which the
exception is founded shall be clearly and concisely stated.
(4) Wherever any exception is taken to any pleading or an application to strike out is
made, no plea, replication or other pleading over shall be necessary."
[11] In Living Hands (Ply) Lie/ and Another v Ditz and O/hers,1 the court stated that:
"(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
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 whicl1 is so
serious as to merit the costs even of an exception.
1 Living Hands (Ply) Ltd and Another v Ditz ancl Others 2013 (2) SA 368 (GSJ) at para 15.
4
(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.
(cl) 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 pariiculars."
[12] In Jowell v Bramwell-Jones and O/hers,2 the court stated that:
" ... it had to ask first whether the exception went to the heart of the claim, and, if so,
whether it was vague and embarrassing to the extent that defendant did not know the
claim it had to meet; and, if the exception failed on any ground, to ascertain in the
second place whether the particulars identified by defendant were strictly necessary
in order to plead and, if so, whether the material facts were unequivocally set out."
[13] In simple terms, the test to be followed is that I accept the facts as set out in
the particulars of claim to be true. Then, I consider whether the accepted facts
constitute a cause of action. Thirdly, if I am satisfied that the facts do constitute a
cause of action, I then consider whether the defendants can plead thereto.
Application of the law to the facts
[14) The plaintiffs case is that the credit facility agreement and the verbal loan
agreements are two separate, stand-alone agreements, concluded on different dates
2 Jowell v Bramwell-Jones and Others 1998 (1) SA 836 (W) at page 845G-I.
5
with, amongst others, different repayment terms. There is simply no room to read into
the plaintiff's allegations, as the defendants would want me to, that these agreements
are but one and the same agreement. The defendant's construction of the particulars
of claim is not one that the objective reader would establish. The objective reader
would not hesitate, I believe, to conclude that the plaintiff has alleged two distinct
agreements.
(15] If I accept, as the authorities instruct me to, that every allegation made by the
plaintiff is correct, then I must accept that I would be able to grant judgment against
the defendants for their breach of two agreements, one termed a credit facility
agreement and the other, a verbal loan agreement.
[16] In my view, the defendants have failed to prove that the particulars of claim do
not disclose a cause of action. The exception stands to be dismissed.
Costs
[17] I see no reason to deviate from the principle that costs follow the result. The
appropriate cost order is party and party costs. Both counsel argue that the
appropriate scale would be scale B. I disagree. In my view, scale A - the lowest
scale - applies because the issues before me did not raise any novel law nor were
they complex.
Judicial case management
[18) Three years after the plaintiff issued summons, this matter still finds itself
stuck in the pre-plea phase. The matter calls for judicial intervention.
Conclusion
(19] For the reasons set out, I dismiss the exception with costs, and case-manage
the matter.
6
Order
[20] I therefore make the following order:
1 The defendants' exception is dismissed with costs on a party and party scale
(scale A).
2 The costs are to be paid by the defendants jointly and severally, the one to
pay the other to be absolved.
3 The defendants are to file their respective pleas and counter-claims, if any, on
or before 7 September 2026.
4 The plaintiff must file its replication - if it so wishes - and its plea to the
counter-clairn(s) (if any) on or before 28 September 2026.
5 The defendants must file - if they so wish - their replication to the plaintiffs
plea to the counter-claim, if any, on or before 12 October 2026.
6 The parties must file their respective discovery affidavits by no later than
26 October 2026.
7 If not settled, the parties must exchange their respective pre-trial agendas by
no later than 9 November 2026 and hold a pre-trial conference and file the signed
pre-trial minutes by no later than 30 November 2026.
8 The parties must, by no later than 7 December 2026, enrol the matter for the
first available judicial case management hearing date.
9 If any clauses of this case management order are not complied with, the non
compliant party must file an affidavit before the judicial case management hearing,
setting out in detail the extent of and reasons for non-compliance.
7
SCHUTTE AJ
ACTING JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
8
Appearances
On behalf of the plaintiff:
On behalf of the defendants:
Date heard:
Judgment delivered:
Advocate van Schalkwyk
Advocate Steyn
13 August 2026
26 August 2026
9