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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE Number: 2025-062949
(1) REPORTABLE: NO
(2) OF INTEREST TO THE JUDGES: YES
(3) REVISED: YES
DATE: 2026/08/24
SIGNATURE:
In the matter between: -
MARTHINUS JACOBUS BEKKER N.O. First Applicant
GAIRONESA DAVIS N.O. Second Applicant
[In their capacity as the duly appointed liquidators
of the Third Plaintiff, Welatisha Investments (Pty) Ltd
(in liquidation) Master's Reference no: T[...]]
WELATISHA INVESTMENTS (PTY) LTD (IN LIQUIDATION) Third Applicant
(Registration Number: 1998/019518/07)
and
MAXI GROUP SCHEME (PTY) LTD Respondent
(Registration Number: 1991/001408/07)
In re:
MARTHINUS JACOBUS BEKKER N.O. First Plaintiff
GAIRONESA DAVIS N.O. Second Plaintiff
[In their capacity as the duly appointed liquidators
of the Third Plaintiff, Welatisha Investments (Pty) Ltd
(in liquidation) Master's Reference no: T[...]]
WELATISHA INVESTMENTS (PTY) LTD (IN LIQUIDATION) Third Plaintiff
(Registration Number: 1998/019518/07)
and
MAXI GROUP SCHEME (PTY) LTD Defendant
(Registration Number: 1991/001408/07)
JUDGMENT
This Judgment was handed down electronically by circulation to the parties'
and/or parties representatives by email and by being uploaded to Caselines. The
date and time for the hand down is deemed on 24 August 2026.
DE JAGER AJ
INTRODUCTION
[1] Before me is an opposed application for leave to amend the applicants' (plaintiffs
in the action) particulars of claim, in terms of the provisions of Rule 28(4) of the Uniform
Rules of Court.
[2] The respondent (defendant in the action) initially delivered an exception to the
particulars of claim as it stands on 18 August 2025, prompting the applicants to file a
notice of intention to amend their particulars of claim in terms of Rule 28(1), proposing
to replace the original particulars of claim with the particulars of claim attached to the
said notice.
[3] The respondent, however, objected to the proposed amendment on the grounds
set out in its notice of objection, attached as Annexure "FA6" to the founding affidavit. It
is in the face of the said objection, that the present application was launched.
[4] The respondent's objection to the proposed amended particulars of claim, is that
it would remain excipiable and that leave to introduce them should therefore be refused.
[5] In the notice of motion, the applicants pray for the following relief:
[5.1] That the applicants be granted condonation to bring the application outside
of the 10-day period provided for in Rule 28(4); and
[5.2] That the applicant be granted leave in terms of Rule 28(4) to amend their
particulars of claim in terms of the notice of amendment delivered in terms of
Rule 28(1) dated 8 September 2025; and
[5.3] Costs to be paid by an opposing party.
[6] It is not necessary for me to grant the condonation prayed for, as it is common
cause on the papers that the extension of time within which the applicants had to launch
the present application, was granted by agreement between the parties. The issue of
condonation was also not raised during argument.
THE APPLICABLE LEGAL PRINCIPLES
[7] Rule 28 confers a discretion upon a Court considering a contested amendment.
[8] An amendment that will render a pleading excipiable , should however, not be
allowed. The party opposing the amendment, bears the burden of persuading the Court
that the amended pleading is (not may be), excipiable. (See: City of Cape Town v
WBHO Construction (Pty) Ltd and Others (86873/2014) [2017] ZAGPPHC 271 at
paragraph 27; H v Fetal Assessment Centre 2015 (2) SA 193 (CC) at paragraph [10].)
[9] Where an objection is raised to a proposed amendment to a pleading on the
ground that the pleading as amended would be excipiable , the Court should not confine
itself to an enquiry as to whether or not the question of excipiability is arguable. The
Court should indeed decide on the question of excipiability, and if it finds that the
pleading as amended would be excipiable , the application for amendment should be
refused. The position is therefore that this Court is tasked to decide the grounds for
exception raised in the objection and opposing papers in considering the application for
amendment. In this regard it is the "excipient" that bears the onus of showing that the
pleading discloses no cause of action on every reasonable interpretation that can be
attached to it. ( See: H v Fetal Assessment Centre supra). The respondent therefor
attracts this burden in these proceedings.
[10] Before dealing with the grounds for exception as bases for the objection to the
amendment, it would be appropriate to refer to the principles governing exceptions.
[11] 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. ( See: Living Hands (Pty) Ltd and Others v Ditz and
Others 2013 (2) SA 368 (GSJ)).
[12] 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
expeditious manner, or to protect oneself against an embarrassment which is so serious
as to merit the costs even of an exception. ( See: Barkleys Bank International Ltd v
African Diamond Exporters (Pty) Ltd 1976 (1) SA 100 (W)).
[13] 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. ( See: Van der Westhuizen v Le Roux and Le Roux 1947 (3) SA
385 (C) at 390).
[14] 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. ( See: Fairoaks Investment Holdings (Pty) Ltd and Another v Oliver
and Others 2008 (4) SA 302 (SCA)at par [12]).
[15] In Pretorius and Another v Transport Pension Fund and Others 2019 (2) SA
37 (CC) at paragraph 15, the Constitutional Court held as follows:
"In deciding an exception a court must accept all allegations of fact made in the
particulars of claim as true; may not have regard to any other extraneous facts or
documents; and may uphold the exception to the pleading only when the
excipient has satisfied the court that the cause of action or conclusion of law in
the pleading cannot be supported on every interpretation that can be put on the
facts. The purpose of an exception is to protect litigants against claims that are
bad in law or against an embarrassment which is so serious as to merit the costs
even of an exception. It is a useful procedural tool to weed out bad claims at an
early stage, but an overly technical approach must be avoided."
[16] 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. (See: Jowell v Bramwell -
Jones and Others 1998 (1) SA 836 (W) at 902J).
[17] Minor blemishes and unradical embarrassments caused by a pleading can and
should be cured by further particulars. ( See: Jowell v Bramwell -Jones and Others
supra at 900J).
THE OBJECTION
[18] I now proceed to deal with the merits of the objection (exception).
[19] The proposed particulars of claim is considerably more detailed than the original.
Broadly stated, it alleges that the third applicant and the respondent entered into a
partnership agreement relating to the marketing and sale of insurance products,
principally to members of the National Teachers Union ("NATU'). This partnership
agreement is alleged in alternative formulations, to have been express and oral, or tacit,
or partly expressly oral and partly tacit.
[20] The proposed particulars of claim describe the parties' respective roles in the
alleged partnership. They explain how the business was conducted and how the
resulting commissions were to be divided. They also plead the parties' performance, the
eventual breakdown of the partnership, and the basis on which the amounts claimed is
calculated.
[21] The respondent raises five objections. The first concerns the identity and citation
of the second and third applicants. The remaining objections concern the alleged tacit
agreement, whether the pleaded facts satisfy the requirements of a partnership, the
basis of the monetary claim, and the alternative formulations of the agreement.
THE FIRST OBJECTION: IDENTITY AND CITATION OF THE SECOND AND THIRD
APPLICANTS
[22] The first objection concerns two discrepancies in the proposed particulars of
claim. Paragraph 2 of the proposed particulars of claim describes the second applicant,
as an adult male liquidator. Paragraph 3 identifies the third applicant as Welathisha
Financial Services (Pty) Ltd, notwithstanding that the caption and the proceedings
themselves identify the third applicant as Welathisha Investments (Pty) Ltd.
[23] In response to this objection, it was submitted by Mr Nel on behalf of the
applicants during argument, that these were clearly typographical errors, and that the
original particulars of claim contain the correct citation. He proposed a solution in that
the amendment not be granted in respect of the citation of the second and third
respondents, with the result that the original particulars of claim will remain in that
regard.
[24] This suggestion was not contested by Mr Sterk appearing on behalf of the
respondent.
[25] In any event, the first discrepancy presents no real difficulty. The founding
affidavit identifies Ms Davis as an adult female liquidator and records that the reference
to a male person in the proposed particulars of claim, is a typographical error. The
respondent itself accepts, in its Heads of Argument that this amounts , at worst, to a
misdescription requiring formal correction and does not in itself render the proposed
pleading vague and embarrassing.
[26] The position concerning the third applicant requires further attention. The
respondent is correct that the pleading should not leave a defendant uncertain as to the
identity of the entity asserting the cause of action against it. The applicants' response in
the founding affidavit, namely that the company is known by its registration number,
does not satisfactorily answer the inherent inconsistency in the proposed pleading.
[27] That does not, however, mean that the amendment as a whole must be refused.
The caption to the proposed particulars identifies Welathisha Investments (Pty) Ltd as
the third plaintiff (applicant). The founding affidavit does the same. The first and second
applicants are cited as joint liquidators of that company. The same registration number,
1998/019518/07, is used in the proposed paragraph 3. On a consideration of the papers
as a whole, there can be no real doubt that the intended third plaintiff (applicant) is
Welathisha Investments (Pty) Ltd (in liquidation).
[28] The proposed pleading should nevertheless not be permitted to remain
inconsistent with the remainder of the contents of the pleadings. Rule 28(10) provides
the appropriate solution. Leave to amend may be granted on such other terms on other
matters as the Court deems fit. Should the application for amendment succeed, I intend
imposing a condition correcting the relevant paragraphs to cite the second applicant as
a female and the third applicant as Welathisha Investments (Pty) Ltd (in liquidation).
[29] The first objection therefore does not justify refusal of the amendment.
THE SECOND OBJECTION: THE TACIT AGREEMENT
[30] The respondent's second objection is that, insofar as the applicants rely upon a
tacit agreement, they have failed to plead the unequivocal conduct from which such an
agreement could be inferred. The respondent argues that the proposed particulars
merely repeat the alleged terms of the agreement without pleading the conduct
necessary to establish tacit consensus.
[31] Mr Sterk on behalf of the respondent, argued passionately in support of this
objection or ground for exception. He also referred me to a recent judgment of the full
bench of the Western Cape Division, Padayachee and Others v Sunwest
International (Pty) Ltd (Case No: A260/2025, delivered on 10 June 2026). In its
judgment, the Court again confirmed as follows:
"[17] On any of these formulations, the conduct of the parties lies at the heart of
the enquiry, for it is from that conduct that agreement is inferred. A party relying
on a tacit contract must therefore plead facts that, if proved, could support the
inference."
[32] It was therefore submitted on behalf of the respondent that the applicants'
proposed particulars of claim fall short of the aforesaid requirement.
[33] That submission does not, in my view, take sufficient account of the proposed
pleading as a whole. It should also be mentioned that the contents of the pleadings as a
whole in that case, do not appear from the Padayachee judgment I was referred to. It is
therefore impossible to ascertain or judge to which extent and on what grounds the
pleadings in that matter were interpreted to be lacking averments which would sustain a
cause of action, when read as a whole, and in the absence of allegations of conduct in
support of a tacit contract.
[34] In the present matter, paragraphs 8.3 and onwards, describe the alleged object
of the business and the parties' respective roles. On the applicants' case, the
respondent made its insurance infrastructure and Assupol relationship available as its
contribution to the partnership. It administered the business, received the commissions,
and shared the relevant proceeds. The third applicant, in turn, marketed and sold the
products and generated the business from which those commissions arose.
[35] Paragraphs 9.1 to 9.6 go further and plead performance of the agreement relied
upon. The applicants allege that the arrangement was implemented until June 2016.
During that period the third applicant marketed and sold the policies, while the
respondent administered the business and received commission. The respondent is
also alleged to have paid the third applicant's agreed share into its bank account each
month until the alleged termination of the agreement.
[36] A partnership may arise from a tacit agreement. In the matter of Butters v
Mncora 2012 (4) SA 1 (SCA), the Supreme Court of Appeal confirmed the established
requirements of partnership and recognised the agreement giving rise to partnership
may be tacit.
[37] Whether the conduct pleaded by the applicants will ultimately prove consensus,
is not a question which ought to be determined on the present application. The relevant
question is whether facts capable of supporting that inference, have been pleaded. I find
that they have.
[38] I am not at all convinced that upon any construction of the proposed particulars
of claim, no cause of action is disclosed. Reading the applicants' proposed particulars of
claim as a whole, I have no doubt that the respondent would know exactly what case it
has to meet in defending the action, and would be, of own knowledge, able to plead
what the nature and extent of the parties' relationship was.
[39] Even though there might be some criticism to be levelled against the construction
of the proposed particulars of claim in this regard, it does not render it excipiable.
[40] In as far as the respondent might require more detail on the conclusion of the
alleged tacit agreement, same should be cured by further particulars.
[41] In this regard I again refer to the matter of Jowell v Bramwell -Jones and
Others supra, at 900J where the court found as follows:
"I am in full accord with the view expressed by Davis J in Kahn v Stuart and
Others 1942 CPD 386 at 391, that 'the Court should not look at a pleading with a
magnifying glass of too high power'.
I also agree that minor blemishes in and unradical embarrassments caused by a
pleading can and should be cured by further particulars."
[42] I therefore find that the second objection does not establish that the proposed
pleading is excipiable.
THE THIRD OBJECTION: THE ESSENTIALIA OF A PARTNERSHIP
[43] The respondent also contends that the facts and terms pleaded do not constitute
a partnership.
[44] The essential requirements of a partnership are settled law. In this regard the
Appellate Division held in Pezzutto v Dreyer and Others 1992 (3) SA 379 (A) that each
partner must contribute, or undertake to contribute, something to the partnership. The
business must be carried on for the joint benefit of the parties and with the object of
making a profit.
[45] The proposed particulars expressly allege in paragraph 8.3 that the common
object was to conduct the business for the joint benefit of the third applicant and the
respondent and for the making of profit. Thereafter the third applicant's and the
respondent's alleged contributions are pleaded in some detail.
[46] The respondent nevertheless submits that the pleaded relationship is closer to an
agency or commission arrangement. It relies on the fixed percentage allocations and
the percentage -based remuneration. It also criticises the applicants' description of
commission as partnership profit.
[47] Those considerations may prove important at trial. They may ultimately support a
conclusion that the legal relationship was something other than a partnership. They do
not, however, demonstrate that the pleaded facts are incapable in law of sustaining the
alleged partnership.
[48] The third ground of objection therefore also fails.
THE FOURTH OBJECTION: THE MONETARY CLAIM
[49] The applicants claim R2 493 101.19. The respondent contends that the proposed
pleading does not establish the factual basis upon which the applicants may attribute
the commission figures relied upon, to business actually generated by the third
applicant.
[50] The proposed particulars identify the commission figures relied upon for the 2016
and 2017 financial years. They also state the percentages allegedly payable to the third
applicant. Paragraph 11.7 alleges that the relevant commissions arose from the third
applicant's marketing and sales activities. Paragraphs 11.8 to 11.12 then explain how
the amount claimed is calculated.
[51] The Assupol letter and summary of commission paid by Assupol to the
respondent, alleged in paragraph 11.4 and onwards of the proposed particulars of claim,
are of importance in this regard. It states that the schedule provides a breakdown of
commission paid to the respondent with specific reference to products sold by the third
applicant. The schedule separately records commission for the NATU Funeral
Protection Plan and the lnkomo Provider Funeral Solution. It also includes a category
described as Other Business, but expressly states that this category relates to products
falling outside the contractual relationship with the third applicant.
[52] The figures reflected in paragraph 11.6 of the proposed particulars of claim are
drawn from the NATU and lnkomo categories, and not the Other Business category.
[53] The respondent may dispute the correctness of the applicants' allegation that all
of the claimed commission was generated through the third applicant's activities and
eventually may lead evidence to that effect. That dispute does not mean that the
necessary factual allegations are absent from the pleading.
[54] The respondent raised a further argument for the first time in its heads of
argument. It is there contended that, on partnership principles, one partner cannot
ordinarily claim payment of an alleged balance from another before the partnership
accounts have been settled under circumstances where the partnership is for instance
dissolved.
[55] I do not intend to express any view on whether this proposition, or any
qualification to it, ultimately applies to the applicants' pleaded claim. The respondent's
difficulty in this regard is procedural, in that the argument is not formulated as one of the
grounds stated in the notice of objection (Annexure "FA6" to the founding affidavit).
[56] The argument is also not raised in the respondent's answering affidavit to the
application for amendment. To the contrary, the deponent to the answering affidavit
expressly testifies as follows:
"9.
The grounds contained in the notice of objection are detailed and thorough.
These allegations already provide the foundation upon which the objection is
based.
10.
Consequently, my client relies, in opposition to this application, on all of the
grounds of objection so advanced in the notice. For the sake of clarity I repeat
here under oath such grounds of objection as if I have repeated word for word, all
the allegations contained in the objection."
[57] Rule 28(3) requires the grounds of objection to be stated in the notice of
objection. The applicants were therefore entitled to frame this application by reference
to the grounds set forth in Annexure "FA6" to the founding affidavit.
[58] An excipient, (the respondent in casu) is obliged to confine its complaint to the
stated grounds of its exception.
[59] In the Supreme Court of Appeal judgment of Feldman N.O. v EM I Music
Publishing SA (Pty) Ltd 2010 (1) SA 1 at paragraph [7] the following was stated:
''Apart from noting that Tindall JA in Collin stated that a point of non -joinder may
be taken on exception, but only if it is expressly referred to in the exception, it is
not necessary to consider whether the decision by Jajbhay J of the first exception
on the basis of joinder was correct in law. An excipient is obliged to confine his
complaint to the stated grounds of his exception. As in Collin the exceptions here
contain no mention of non -joinder. They accordingly fell to be decided on the
grounds taken, namely that the particulars did not contain averments which
founded the claim for relief. Nor did counsel in arguing the appeals for either
party present argument based on the ground of non-joinder."
[60] In the premises I do not regard this argument to constitute an objection or ground
for exception to be considered in this application.
[61] There is also no merit in the fourth objection.
THE FIFTH OBJECTION: ALTERNATIVE FORMULATIONS
[62] The final objection concerns the alternative formulations of the agreement relied
upon. The applicants plead an oral partnership as their primary case. In the alternative,
they rely on a tacit or quasi -partnership, and further alternatively on an agreement said
to be partly oral and partly tacit. The respondent says these formulations are mutually
destructive and render the pleading vague and embarrassing.
[63] Once again I find that the drafting is cumbersome. The repeated use of the
expression quasi-partnership adds little clarity and may have been better avoided.
[64] That, however, is not the same as excipiability . The proposed particulars make
clear that these are alternative formulations. The factual basis of the claim remains
identifiable. The applicants' primary case is that the parties reached express oral
consensus. In the alternative, they allege that consensus is to be inferred wholly or
partly from the parties' conduct and established business practice, as executed between
the parties.
[65] The fact that two claims, or two factual bases for the same claim, cannot
ultimately co-exist, does not prevent them from being pleaded in the alternative. That is
the purpose of alternative pleading. The Court considers the alternative, only if the
primary case is not established.
[66] An express oral agreement and a tacit agreement cannot both explain how the
same consensus was reached. They may nevertheless be pleaded as alternatives.
What matters is whether each alternative is pleaded with sufficient clarity to disclose the
case the respondent must meet. In the present matter, the applicants identify the terms
relied upon and plead the factual basis on which consensus is said to arise. The
respondent is therefore able to identify and answer each alternative case.
[67] The fifth objection accordingly fails.
[68] In the result the respondent has not satisfied the burden to indicate that the
proposed particulars of claim would be excipiable, if allowed. In the premises I intend to
grant leave to amend the particulars of claim.
COSTS
[69] The applicants have substantially succeeded in obtaining leave to amend. The
question of costs nevertheless requires further consideration, for me to be able to
exercise my discretion in this regard, judicially.
[70] Rule 28(9) provides that a party giving notice of amendment is, unless the court
otherwise directs, liable for the costs thereby occasioned to any other party. The
applicants tendered those costs in their Rule 28(1) notice. Their tender did not extend to
the costs of opposition to the amendment. The respondent was however justified in
raising the objections relied on, in opposition to the application for amendment. On the
other hand, the respondent has ultimately not succeeded in its objections.
[71] I therefore consider the appropriate order to be that the costs of this application
should follow the outcome of the main action.
ORDER
[72] I accordingly make the following order:
(i) The applicants are granted leave to amend their particulars of claim in
accordance with the amended particulars of claim attached as Annexure "A" to
their Rule 28(1) notice, dated 8 September 2025, subject to the following
corrections:
(a) Paragraph 2 of the amended particulars of claim shall describe the
second plaintiff, Gaironesa Davis N.O. as an adult female liquidator.
(b) Paragraph 3 of the amended particulars of claim shall identify the
third plaintiff as Welathisha Investments (Pty) Ltd (in liquidation) with
registration number 1998/019518/07.
(ii) The applicants shall effect the amendment within 10 (ten) court days of
this order.
(iii) The costs of the application for leave to amend, are costs in the cause.
DE JAGER AJ
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 12 August 2026
Date of judgment: 24 August 2026
Appearance
Counsel on behalf of the Applicants: Adv FJ Nel
Instructed by Schabert Potgieter Attorneys Inc
Counsel on behalf of the Respondent: Adv C Sterk
Instructed by Couzyn Hertzog & Horak Inc