IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION. PRETORIA
CASE NO.: 2025-201089
DELETE WHICHE~ IS NOT APPLICABLE
(l}REPORTABLE:(SP'
(2)OF INTEREST TO OTHERS JUDGES:@
(3)REVISED: YES
In the matter between:
TIYANI VAVANUNA MBALATI N.O.
BANGISITA BERNARD MKHONDO N.O.
GLORIA GWEBU N.O.
and
MANDI OIL (PTY) LTD
First Plaintiff
Second Plaintiff
Third Plaintiff
Defendant
Delivered: This judgment was prepared and authored by the Judge whose name is reflected
herein and is handed down electronically by circulation to the parties' legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date and time for hand-down is deemed to be 10:00 on 26 August
2026.
JUDGMENT
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SUMMARY:
Exception - application for amendment - Rule 30
ERASMUS, AJ:
INTRODUCTION :
[1] Before me is an exception, as well as an application for leave to amend. The
Particulars of Claim involve a lease agreement for premises with a filling
station. Apparently a suspensive condition was not fulfilled, and the lease did
not come to fruition. Yet, the Defendant remained in occupation and had to
be evicted. Plaintiffs therefore claim damages under three separate heads.
[2] Defendant first filed a notice in terms of Rule 23(1) on or about 9 February
2026. Plaintiffs thereafter served a notice of amendment on or about 11
March 2026. Defendant filed an exception the next day. It also filed an
objection to the proposed amendment on 24 March 2026.
[3) It was argued by Defendant's counsel at the outset that the opposed
amendment application was not properly before me, because Defendant had
filed a Notice in terms of Rule 30, objecting to the manner in which the
amendment application had been pursued. The Rule 30-application is
opposed and first has to be dealt with before I can deal with the amendment -
according to Defendant. In light of my view on the exception, as well as the
proposed amendment, I regard this "point in limine" as academic - for
reasons set out below.
GROUNDS OF EXCEPTION:
FIRST GROUND:
[41 It pertains to paragraph 9 of the Particulars of Claim or "Claim A" as the
parties referred to it in argument. Paragraph 9 deals with a claim for
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"damages equal to the unpaid rent the defendant would have paid had the
suspensive condition been fulfilled in the (total) sum of R2, 169 782. 04 for the
period 2019 to 2025."
[5] The essence of Defendant's complaint is that the specific months for unpaid
rental, the amount per month, the due date for payment of the rental, date of
the alleged breach and whether the sums are inclusive of VAT are not stated.
It also complains that it is unable to formulate defences such as prescription.
[6] Plaintiffs counsel argued inter alia that any "embarrassment" can be cured by
a Request for Further Particulars or a Rule 35(3)-notice; that Defendant can
simply deny the allegations or can amend its Plea later once it is provided
with more detail. Adv Kruger SC also referred to Harms: Amler's Pleadings
(10th Edition) at p.310 where it is stated that: "The proper way of raising of
prescription in action proceedings is by way of a plea or special plea and not
by way of exception".1
[7] In my view, this ground of exception is well taken for the following reasons:
7.1 Rule 18(4) stipulates that "every pleading shall contain a clear and
concise statement of the material facts upon which the pleader
relies for his or her claim . . . with sufficient particularity to
enable the opposite party to reply thereto" (my emphasis). Rule
18(10) furthermore stipulates that "A plaintiff suing for damages
shall set them out in such manner as will enable the defendant
reasonably to assess the quantum thereof ... "
7.2 By simply pleading a total sum of unpaid rental for a specific year,
Defendant would not know for which specific months it allegedly
did not pay and in which amounts. I note in this regard that the
amounts for each year vary considerably. It is therefore
Jugwanth v Mobile Telephone Networks (Pty) Ltd (2021) 4 All SA 346 (SCA).
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conceivable that the "unpaid" months do not form an uninterrupted
period of non-payment from 2019 to September 2025.
7.3 I take note of the authority on prescription. In my view, the
authority does not assist Plaintiff in casu. In the decision of
Jugwanth, the defendant raised the exception that the plaintifrs
claims were not enforceable because they had become prescribed
ex facie the Particulars of Claim. The exception in casu is not
expressed in those terms. It simply states that "The Defendant is
unable to determine whether the claims may be prescribed". Such
objection is tied to the complaint of insufficient detail pertaining to
months, amounts, etc. The latter forms the gravamen of the
objection and not the issue of prescription by itself.
7.4 It also does not assist Plaintiff to argue that a request for further
particulars can cure the alleged embarrassment. The simple
reason for this is that further particulars can only be sought for
purposes of trial after the close of pleadings. It therefore cannot
assist a defendant when faced with insufficient detail at the
pleading stage. By the same token, it is not an argument that a
defendant can simply baldly deny the allegation. Had that been an
answer, it would open the door to plaintiffs to fail to plead their
cases with insufficient particularity to enable a defendant to plead
meaningfully thereto. I am well aware that many defendants abuse
the exception procedure simply to gain time. However, that cannot
excuse a plaintiff from pleading with sufficient particularity.
[8] In the premises, I find that paragraph 9 of the particulars is vague and
embarrassing.
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SECOND GROUND (PARAGRAPH 10 TO 12 OF THE PARTICULARS OF CLAIM):
[9] The claim pertains to income earned by Defendant from banks which installed
automatic teller machines at the premises.
[1 OJ Defendant's complaint is that Plaintiff fails to plead facts pertaining to the
terms of the alleged agreements it had concluded with the banks; why such
agreements are unlawful; and why the Plaintiff had to consent and
Defendant's conduct amounted to a breach.
[11] In my view this ground of exception is not well taken for the following reasons:
11.1 The ground of exception was not raised in a clear manner. It
states that "the Plaintiffs fail to plead material facts ... " and that the
relevant paragraphs amount to "mere conclusions without
supporting material facts". It then concludes that the Defendant ''is
prejudiced and unable to plead thereto". Although it is not explicitly
averred, I can only assume that the true complaint is that
paragraphs 10 to 12 (Claim B) miss allegations to sustain a cause
of action and not that it is vague and embarrassing. I have to
make an assumption because Defendant failed to state whether it
relies on "lacking averrnents to sustain a cause of action" or ''vague
and embarrassing". An excipient cannot simply rely on prejudice in
a vague manner. It must identify the category of Rule 23 upon
which it relies.
11.2 In my view the legal basis for averring that the alleged agreements
with the banks were unlawful, is sufficiently covered by paragraph
4(ii) of the particulars - which is derived from clause 4.1 of the
lease agreement - an annexure to the particulars.
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11.3 Defendant might have been successful had it raised similar
complaints as to Claim A, in that paragraph 12 of the particulars
simply states globular amounts in respect of each bank without
laying a basis for computing those amounts. I appreciate that
Plaintiff states in paragraph 10 that the dates of conclusion of the
relevant agreements between Defendant and the banks are
unknown. But, Plaintiff must have had some basis for computing
the amounts in paragraph 12 - as the claim pertaining to Standard
Bank appears to confirm "(Up to July 2025)".
11.4 However, such was not Defendant's complaint. Paragraph 8 of the
Exception is insufficient to found such ground. "How" the damages
were suffered is sufficiently evident from paragraphs 10 and 11 of
the Particulars of Claim: Defendant derived income from third
parties to the detriment of the trust. The unlawfulness clearly
stems from the provisions of the lease.
[12] In the premises, I find that the second ground of the exception must fail.
THIRD GROUND:
[13] Ground 3 pertains to paragraph 13 of the Particulars of Claim. The complaint
is that no breakdown is provided for the sum of R664 057.98 which Plaintiff
allegedly failed to pay to the City of Tshwane. In my view, this ground should
be sustained. Defendant is entitled to more particularity, such as the relevant
constituent amounts, the period during which those amounts were billed and
on which basis those levies were raised.
FOURTH GROUND:
[14] The complaint is that prayer 1 of the particulars simply states a total sum and
does not separate the amounts claimed under Claims A, Band C. The prayer
is alleged to be vague and embarrassing.
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l 15] Although it might have been more elegant to formulate separate prayers for
each claim, this ground of exception has no merit. It is evident that the sum in
the prayer is the grand total of Claims A to C. No embarrassment whatsoever
is caused to Defendant. This ground borders on the frivolous.
THE PROPOSED AMENDMENT :
[16) The Notice of Amendment in essence seeks to:
16.1 amend paragraph 9 of the particulars by amending the total
damages in lieu of unpaid rental and by altering its constituent
amounts. It therefore does not address the complaint raised in
Ground 1 of the Exception;
16.2 amend paragraph 13 of the particulars by adding the phrase
"despite the contractual obligation to do so". It also does not
address the complaint that no breakdown is provided for the total
sum claimed in respect of levies paid to the local authority;
16.3 it alters prayer 1 to a slightly lower amount.
OBJECTION TO THE AMENDMENT:
[17) I am not going to set out every detail of the objection. In essence, it repeats
the grounds of the Exception and in some instances expands on them.
[18) Apart from the objection to the amendment of prayer 1, I am of the view that
the objection to the amendment of paragraphs 9 and 13 of the particulars is
well taken. This is because the amendment does not remove the vagueness
of those paragraphs.
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[19] Save for the amendment to prayer 1, the amendment should therefore be
refused.
THE RULE 30- APPLICATION:
[20] Because Defendant raised it as an issue in limine - allegedly preventing me
from hearing the amendment application, I deal with the Rule 30(2)(b)-notice.
In essence the complaint is that Plaintiffs' application for the amendment
should have been brought by means of a "substantive interlocutory
application on notice of motion supported by affidavit". Furthermore, that the
amendment seeks to expand upon the Plaintiffs' damages claim; Plaintiffs
allegedly had to explain why these allegations had not been made originally;
and Defendant was not granted an opportunity to respond to the proposed
amendment. In summary, that the Defendant is prejudiced.
[21] In my view the Rule 30-notice is baseless primarily in view of the following:
21 .1 An application for an amendment is generally not supported by an
affidavit except in cases where an admission is to be withdrawn
(which is not the case here).
21 .2 Defendant had every opportunity to object to the amendment in a
Notice of Objection as it duly did.2
[22] Defendant would be well advised to have regard to the primary consideration
arising in a Rule 30-application, namely prejudice. It is evident that here
Defendant suffered no prejudice: it knew exactly what the amendment entails
and had already objected to it. There was nothing wrong with the procedure
followed by Plaintiff in setting down the opposed amendment.
2 See the Notice of Objection at CaseLines 034.6 to 034. 12.
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[23] In the premises, the service of the Rule 30-notice was an abuse of the
process. It would have been an utter waste of the court's valuable time to
adjudicate an opposed application purely on the Rule 30-objection.
[24) In view of the fact that the bulk of the proposed amendment is refused, the
Rule 30-notice / application has become academic. It is thus immaterial that
answering and replying papers have not been exchanged therein.
COSTS:
[25) In my view, this is an appropriate case to exercise the court's discretion that
each party pays its own costs, in view of the following factors:
25.1 Two of the four grounds of exception were successful and two
were not.
25.2 The application for the amendment was procedurally in order. The
fact that the amendment is largely refused flows from the grounds
of exception and did not take up additional court time.
25.3 Defendant's ''point in limine" was not bona fide. The Rule 30-
application was clearly a ploy to delay the action.
[26] In the result, I make the following order:
(1) The first and third grounds of the Exception (dated 12 March 2026)
pertaining to paragraphs 9 and 13 of the Particulars of Claim
respectively, are sustained.
(2) Plaintiffs are granted leave to amend their Particulars of Claim
within 15 days of date of this order.
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(3) Plaintiffs' amendment as contained in its Notice of Amendment
dated 11 March 2026 is refused, save for the amendment of prayer
1 of the Particulars of Claim.
(4) Each party is to pay its own costs incurred in the Exception and the
Application for Amendment.
APPEARANCES:
For Plaintiff: Adv T Kruger SC
Instructed by: Jordaan & Smit Inc
For Defendant: Adv T C Kwinda
Instructed by: Magolego Attorneys
F J ERASMUS
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Electronically delivered and signed.