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IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO.: 51/2019

In the matter between:

SHAFIKUNNISA MOHAMED RAGEE                               Applicant

and

QC4 PROPERTIES (PTY) LTD previously known           Respondent

As PROTEC PROPERTIES (PTY) LTD

(REGISTRATION NO.: 2015/152966/07)

OPPOSED MOTION

GURA J                      

DATE OF HEARING            :        13 SEPTEMBER 2019

DATE OF JUDGMENT                  :        30 APRIL 2020

FOR THE APPLICANT         :       ADV M.G HITGE

FOR THE RESPONDENT   :        ADV I.L POSTHUMUS

JUDGMENT

GURA J.

Introduction.

[1]     The plaintiff who is also the respondent in this exception issued summons against the defendant, the excipient in this exception, claiming transfer of immovable property (portion 3 of portion 1 of Erf 901, Lichtenburg) alternatively, damages. For a proper understanding of the ambit of the issues, it is imperative to set out in full, the particulars of claim.

          “3.    On or about 30 November 2010 and at Lichtenburg the plaintiff,     acting personally, entered into  a written agreement of sale with         Aletta Susara Hartzer, who acted in both her personal capacity   and as executrix of the estate of the late Johannes Gerhardus   Hartzer (hereinafter collectively referred to as “seller”) in terms        whereof the seller sold to the plaintiff certain immovable property         for a purchase price of R30 000.00

          4.       A copy of the deed of sale is attached hereto, marked “POC 2”,       and is hereinafter referred to as “the deed of sale”.

          5.       The material express alternatively implied alternatively tacit     terms of the agreement were the following:

5.1     The seller sold and the plaintiff purchased a portion of portion 1 of Erf 901, situated in the town of Lichtenburg, registration division I.P, North-West           Province. A sketch. Marked “A” was annexed to the     deed of sale. This property is hereinafter referred to as “the property’. (Clause 1).

5.2     The purchase price of R30 000.00 would be payable as  follows:

5.2.1 R15 000.00 on signature of the agreement; and

5.2.2 The balance on date of registration of transfer.    (Clause 2)

5.3     Occupation of the property would be given to the plaintiff on the date of registration of the property into    her name. (Clause 3)

5.4     The plaintiff would procure the subdivision of the    property and pay the fees and disbursements of a land surveyor who would be instructed to attend thereto. (Clause 4.2)

5.5     Registration of the property into the name of the    plaintiff would be carried out by the firm CJP Oelofse    Attorneys of Lichtenburg. (Clause 7)

6.       The plaintiff paid the R15 000.00 deposit on signature of the deed of sale, and thereafter paid a further R5 000.00 towards the   purchase price.

7.       The plaintiff duly procured the subdivision of the property, as a        result whereof the property became known as portion 3 of portion        1 of Erf 901, situated in the town of Lichtenburg, registration     division I.P; North-West Province.

8.       During or about November 2016 and at Lichtenburg, the       plaintiff,      acting personally, and the seller, duly represented by John Hertzer    entered into a written agreement in terms whereof the deed of sale          was amended so as to provide for:

8.1     A reduction in the purchase price from R30 000.00 to R25 000.00;

8.2     Payment of the new full outstanding balance of R5 000.00 on signature of the agreement;

8.3     Payment of the amount of R5 000.00 would be in full   and final payment of the purchase price stipulated in the deed of sale.

A copy of the deed of amendment is attached hereto, marked   “POC 3”, and is hereinafter referred to as “the deed of         amendment”.

9.       The plaintiff paid the amount of R5 000.00 on signature of the         deed of amendment, as a result whereof she became entitled to   transfer of the property into her name.

10.     In the event of it being found that the deed of sale was not       amended by the deed of amendment, the plaintiff avers that she    would have been entitled, but for the conduct of the defendant set         out hereinafter, to transfer of the property into her name against payment of the outstanding balance of the purchase price in the        amount of R10 000.00, which sum the plaintiff was at all times      material hereto willing and able to pay.

11.     At all times material hereto, the defendant was aware of the    facts that:

11.1   The seller had sold the property to the plaintiff;

11.2   A valid and binding contract subsisted between the       plaintiff and the seller in respect of the sale of the   property;

11.3   The plaintiff was able and willing to pay the outstanding   balance of the purchase price against registration of the property         into her name.

12.     On a date and at a place unknown to the plaintiff, the seller    and the defendant entered into an agreement in terms whereof the     seller sold the property to the defendant. This agreement is hereinafter referred to as “the second deed of sale”.

13.     The plaintiff bears no knowledge of whether the second deed of        sale was oral or in writing. If the second deed of sale was in          writing:

13.1 The plaintiff is not in possession of a copy thereof; and

13.2   The defendant is in possession of a copy thereof and is   invited to produce such copy.

14.     On or about 15 March 2016, and at Lichtenburg the defendant,       duly represented by Bosman & Bosman Attorneys,       furnished the         plaintiff, duly represented by CJP Oelofse Attorneys, with a written      undertaking that the property be transferred to the plaintiff. A copy      of this letter is attached hereto marked “POC 4”.

15.     The material express alternatively implied alternatively tacit     terms of the underrating were the following:

15. 1 The defendant would, upon transfer of portion 1 of Erf           901, Lichtenburg into its name, transfer to the plaintiff portion 3 of portion 1 of Erf 901, situated in the town of Lichtenburg, registration division I.P, North-West   Province, being the property as defined above; and

15.2   The defendant undertook, upon demand, to give its full co-operation to effect transfer of the property to the plaintiff.

This undertaking is herein after referred to as “the undertaking”.

16.     Pursuant to, and as a result of, the second deed of sale, the     property was transferred to the defendant on or about 15^th        March 2016, upon which date the plaintiff became entitled in       terms of the undertaking to have the property transferred into her       name.

17.     Notwithstanding demand, and in breach of the undertaking, the       defendant has failed or refused to transfer the property to the      plaintiff alternatively to give its co-operation to effect transfer of   the property to the plaintiff.

18.     In the result, the plaintiff is entitled to an order that the defendant     does all things necessary and signs all documents to procure       transfer of the property into the name of the plaintiff, failing which        the sheriff is authorised to do all things necessary and to sign all        documents to transfer the property to the defendant.

19      Alternatively to paragraph 18, and in the event of the above    Honourable Court declining to enforce the undertaking the      plaintiff avers the following:

19.1   As a result of the defendant’s breach of the undertaking the               plaintiff has suffered damages in the sum of:

19.1.1         R425 000.00 being the difference between the    purchase price of R25 000.00 as contemplated in the deed of sale read with the deed of amendment, and the reasonable market value of the property on the date that the plaintiff   became entitled to have the property     transferred into her name.

Alternatively

19.1.2         R420 000.00 being the difference between the   purchase price of R30 000.00 as contemplated   in the deed of sale and the reasonable market   value of the property on the date that the    plaintiff became entitled to have the property transferred into her name.

  19.2   The defendant is accordingly indebted to the plaintiff in the said sum of R425 000.00 alternatively R420 000

19.3   Notwithstanding the demand, the defendant has failed or refused to pay the defendant the said sum of R425 000.00                 alternatively R420 000.00, or any part thereof.

20.     Alternatively to paragraphs 14 to 19;

20.1   The defendant induced the seller to enter into a   second deed of sale.

20.2   By entering into the second deed of sale, and/or by   complying with its obligations to give transfer of the   property to the defendant in terms of the second deed of sale, the seller breached the deed of sale

20.3   The defendant accordingly, intentionally alternatively   negligently interfered with the contractual relationship  between the plaintiff and the seller.

20.4   The defendant’s said inducement was wrongful in that:

20.4.1         It interfered with the sanctity of the contract   between the plaintiff and the seller;

20.4.2         It resulted in the seller not being able to   transfer the property to the plaintiff in terms of the deed of sale;

20.4.3         It caused pecuniary loss to the plaintiff, such loss being the difference between the purchase price payable in the deed of sale read with the   deed of amendment alternatively the deed of     sale, and the reasonable market value of the    property at the date that the property would have been transferred to the plaintiff, but for the defendant’s said inducement;

20.4.4         The defendant saw that its conduct would cause    the seller to breach the deed o f sale.

20.5   As a result of the defendant’s conduct in inducing the seller  to breach the deed of sale, the plaintiff has suffered damages in the sum of;    

20.5.1         R425 000.00 being the difference between the   purchase price of R25 000.00 as contemplated in the deed of sale read with the deed of   amendment, and the reasonable market value of    the property on the date that the plaintiff  became entitled to have the property    transferred into her name.

Alternatively

  20.5.2         R420 000.00 being the difference between the purchase price of R30 000.00 as contemplated in the deed of sale and the reasonable market value of the property on the date that the plaintiff became entitled to have the property transferred into her name.

20.6   In the result, the defendant is accordingly indebted to the plaintiff in the said sum of R425 000.00 alternatively    R420 000 as and for damages.

20.7   Notwithstanding demand, the defendant has failed to pay   the defendant the said sum of R425 000.00 alternatively   R420 000.00, or any part thereof.

WHEREFORE the plaintiff claims:

1.       An order that the defendant does all things necessary and signs all documents required to procure transfer to the plaintiff of the property became known as portion 3 of portion 1 of Erf 901, situated in the town of Lichtenburg. Registration Division I.P., North-West Province, failing which the sheriff is authorised to do all things necessary and to sign all documents required to procure transfer of the said property to the plaintiff.

2.       Alternative to prayer 1 above: An order that the defendant pays the plaintiff:

2.1     The sum of R425 000.00 alternatively R420 000.00 as and for   damages.

2.2     Interest at the rate of 15.5% per annum on such amount as the    above Honourable Court may award, calculated a tempore morae.

3.       Costs of suit.

4.       Further and alternative relief.”

Exception.

[2]     The defendant filed a notice of exception in terms of which he took exception to the particulars of claim on the basis that they do not disclose the necessary facts to sustain a cause of action on the following grounds:

“1.    FIRST GROUND

1.1     The plaintiff relies in paragraph 14 of the particulars of claim on a purported written undertaking that the property would be transferred to the plaintiff. Herein the plaintiff in paragraph 15 also relies on certain express, alternatively implied, further alternatively tacit terms of the undertaking.

1.2     Upon perusal of annexure “POC4” it is evident that the document constitutes nothing more than “an agreement to   agree” insofar as it specifically provides in paragraph 3 thereof that a draft sale agreement will be prepared by the   plaintiff to deal with the transaction.

1.3     The plaintiff, in his totality, fails to plead out if ever such   an agreement was concluded.

1.4     In terms of section 2(1) of the Alienation of Land Act, 68 of 1981, any sale of land is to follow only if a written   deed of sale containing the transaction was concluded and signed by  the parties thereto.

1.5     Absent the aforesaid deed of sale, the plaintiff has failed to   establish that a valid sale agreement was ever concluded in   respect of the property and/or that it is entitled to the relief   sought.

1.6     The plaintiff accordingly failed to plead facts to sustain a cause of action.

2.       SECOND GROUND

2.1     In prayer 2.2 of the relief, the plaintiff seeks interest at a rate of 15.5% per annum on the amounts sought in prayer 2.1.

2.2     The plaintiff fails to make any allegation to support the notion that a higher interest rate than the morae rate, as   determined in respect of the Prescribed Rate of Interest Act   55 of 1975 may be claimed.  

2.3     Absent an agreement for an increased rate and/or allegations to that effect, the plaintiff has failed to plead out   the basis to sustain a claim for the interest sought.

3.       THIRD GROUND

3.1     In paragraph 20.1 of the particular of claim, the plaintiff   pleads that the defendant induced the seller to enter into the second deed of sale. The conclusion reached in 20.1 is not     supported by any facts to sustain the allegations.

3.2     It is accordingly submitted that no  facts were pleaded to   suggest that the defendant induced and/or interfered with the            transaction. In contrast thereto it is alleged that an agreement was concluded between the seller and the defendant as alleged.

3.3     The plaintiff furthermore fails to plead out, as a material  allegation, when such interference occurred and more particularly how such interference occurred. The plaintiff baldly alleges in paragraph 12 of the particulars of claim   that:-

“On a date and a place unknown to the plaintiff the    seller and the defendant entered into an agreement in terms of whereof the seller sold the property to the defendant.”

3.4     Furthermore, the plaintiff bears no knowledge of whether    the second deed of sale was oral or in writing.

3.5     The allegation to suggest therefore that the defendant   interfered with the transaction is not supported by any facts to sustain the allegation.

  4.       FOURTH GROUND

4.1     The plaintiff is in paragraph 14 of the particulars of claim is    reliant on a written undertaking by the attorneys purportedly    acting for the defendant on 15 March 2016.

4.2     Such undertaking was subject to further conditions, which    conditions were not pleaded out in the particulars of claim,   and the plaintiff failed to plead whether such conditions    were in fact met.

4.3     The allegation and reliance on the written undertaking is                            therefore not supported by facts to sustain a claim thereon.

5.       FIFTH GROUND

5.1     The plaintiff claims against the defendant an amount of R425 000.00 in respect of the “breach of the undertaking.”

5.2     The plaintiff has failed to lay out a basis for such a claim and to contend on what basis the defendant breached the    undertaking.

5.3     As a result the plaintiff has failed to plead out a completed   cause of action.

6.       SIXTH GROUND

6.1     The plaintiff pleads that the initial purchase price of the    property, as set out in paragraph 5.2 of the particulars of claim, was R30 000.00 which was payable as follows: -

6.1.1 R15 000.00 upon signature of the agreement; and

6.1.2 The balance on the date of the registration of transfer.

6.2     The plaintiff pleads out that payment of R15 000.00 deposit upon signature of the deed of sale and thereafter paid a     further R5 000.00 towards the purchase price, as alleged in    paragraph 6 of the particulars of claim.

6.3     In paragraph 8 of the particulars of claim, is it alleged that   an addendum was concluded to the sale agreement wherein the purchase price was reduced from R30 000.00 to that of    R25 000.00. It was also alleged that the payment of the new    full outstanding balance (being R25 000.00) will be on payment of R5 000.00 on the signature of the agreement.

6.4     In paragraph 9 of the particulars of claim the plaintiff      alleges that the plaintiff paid the amount of R5 000.00 on   signature of the deed of amendment and became entitled to transfer of the property into her name.

6.5     However, in paragraph 10 it is alleged that the plaintiff has in fact not paid the outstanding balance, being R10 000.00,     which sum the plaintiff was at all material times hereto willing and able to pay.

6.6     Upon the computation of the amounts actually paid at all material times a balance was due. However, upon perusal of paragraph 10 and reading it into context, it is evident that   only the price of R20 000.00 in total was paid insofar as the   alleged balance of R10 000.00 is payable if the addendum is    found not to be applicable.

6.7     It is accordingly submitted that as a result of the afore said,  the particulars of claim does not contain the necessary facts    to sustain a cause of action insofar as it not shown out that       the plaintiff has in fact paid the full purchase price, alternatively it is not clear whether in fact the plaintiff has   performed in terms of her obligations towards the original sale transaction.

          WHEREFORE the defendant prays for the following:-

          1.       That the exception be upheld with costs; 

          2.       That the particulars of claim be struck out;

          3.       That the plaintiff’s claim be dismissed with costs;

          4.       In the alternative to prayer 3, that the plaintiff be afforded an opportunity to amend the particulars of claim and deliver a notice          to amend within 10 (ten) of the date of the order;

          5.       Further and/or alternative relief.”

Plaintiff’s submissions.

First and fourth exceptions.

[3]     The forth ground of exception is simply a regurgitation of the purported first ground. What follows therefore is a response to both the first and the second grounds of exception. These complaints by the defendant are without merit due to the following:-

3.1    The plaintiff relies on Annexure “POC4” as constituting an       unequivocal and unconditional undertaking (warranty) that         defendant would transfer the property in question. This much    is set out in paragraph 2 of Annexure “POC4”;

3.2    Paragraph 3 of Annexure “POC4” simply provides the    proposed mechanism for performance of the defendant’s      obligation, referred to in paragraph 2 of Annexure “POC4”;

3.3    At the very least, paragraph 3 is susceptible to an interpretation that it does not constitute a condition in the    sense of a i.e. sine qua non for the defendant’s performance of its undertaking to transfer the property;

3.4    The validity of the defendant’s complaint can in any event       only be assessed by interpreting Annexure “POC4” in its full       context, an exercise which involves an examination of the    circumstances surrounding the defendant’s written      undertaking and a consideration of the whole factual matrix           in relation thereto.

3.5    For this reason, the exception procedure is inappropriate to    deal with the defendant’s complaint and Courts are therefore     reluctant to entertain exceptions which involve the        interpretation of contracts. See Firs Rand Bank Limited v   Luke Jooste 2015 JDR 0270 (GJ).

3.6    As pointed out above, at worst for the plaintiff, the contents     of paragraph 3 of Annexure “POC4”, even in the absence of       contextual oral evidence, does indeed leave room for an     interpretation that the conclusion of a deed of sale was   merely a vehicle proposed by the defendant’s erstwhile attorney, Mr Phillip Badenhorst of Bosman and Bosman    Attorneys for the performance of the defendant’s obligation          to transfer the property to the plaintiff.

3.7    In the present matter, evidence can and will be led (inter alia   that of Mr Badenhorst) regarding the factual matrix of the       circumstances surrounding the written warranty given by the         defendant, and specifically dealing with the unlawful “double sale” of the property to the defendant, where the plaintiff had   earlier concluded a deed of sale with the same seller in respect of a portion of the very same property.

3.8    Since the contemplated transfer of the property by the    defendant to the plaintiff is not an ‘alienation’ as defined in      the Alienation Land Act 68 of 1981, the provisions thereof do     not apply.

3.9    Accordingly, these purported grounds of exception are   without merit and ought to be dismissed.

Second ground of exception.

[4]     The defendant complains that the plaintiff has not set out why “a higher interest rate than the prescribed mora rate” is claimed. Presumably, the defendant suggests that the current interest rate of 10.25% per annum should be claimed.

          4.1    The rate prescribed in terms of Section 1(2) of the    Prescribed Rate of Interest Act 55 of 1975 at the time when    interest begins to run, governs the calculation of interest, is         fixed at that time, and remains constant throughout (Davehill           (Pty) Ltd and Others v Community Development Board 1988          (1) SA 290 (A)).

          4.2    The time when interest begins to run, is to be determined by   means of the evidence to be led at trial, which would likewise      be determinative of the applicable interest rate in respect of      the plaintiff’s alternative claim for damages.

          4.3    The prayer for mora interest does neither constitute, nor          require a separate cause of action to be pleaded.

          4.4    The defendant’s complaint on the basis that the particulars of          claim in respect of interest lacks the necessary averments to       sustain a cause of action, is therefore misplaced.

          4.5    At best for defendant, it may have alleged vagueness in the   particulars of claim regarding the specific interest rate         claimed, but defendant is precluded from relying on alleged         vagueness of the particular of claim due to its failure to serve     a pre-exception notice in terms of Rule 23(1) and due to re      fact that no prejudice whatsoever will be suffered by the      defendant, who is entitled to simply deny the applicability of     the alleged interest rate of 15.5% per annum, in its plea.

          4.6    This purported ground of exception is ill founded, contrived     and ought likewise to be dismissed.

Third ground of exception.

[5]     This complaint of the defendant is to the effect that the   plaintiff failed to set out sufficient facts to support its   allegation that the defendant induced the seller to enter into   the second deed of sale. This complaint is likewise without   merit, due to the following:

5.1    The complaint relates to the plaintiff’s alternative claim,    based on the aquilian (delictual) action available to a plaintiff for the intentional interference with contractual   relationships by a third party, which has the effect that   a contracting party (plaintiff) is deprived of obtaining     the performance to which he is entitled as a matter of               contract.

5.2    The facta probanda for a successful claim based on   unlawful interference in a contractual relationship by   means of inducement are simply the following:

(i)      that there was wrongful act (inducement);

(ii)      which constituted an interference in the    contractual relationship; and

(iii)     which had been committed with some form of intent.

5.3    The plaintiff alleged all the required facta probanda for             the aforestated aquilian action.

5.4    The defendant’s complaint under this purported   ground, conflates the concept of the facta probanda   with that of the facta probantia.

5.5    Allegations such as when, where and how the   inducement / interference with the contractual   relationship would have occurred, actually relate to the facta probantia, i.e. the evidence to be led at trial to prove the facta probanda, and need not be pleaded by the plaintiff to sustain its cause of action in delict.

Fifth ground of exception.   

6.      The defendant’s complaint is to the effect that the plaintiff “has failed to lay out (sic) a basis” for its allegation that the defendant breached its undertaking to transfer the property to the plaintiff. This complaint is likewise without merit, due to the following:

          6. 1   The plaintiff had clearly pleaded in paragraphs 14 to 15 of      the particulars of claim what the nature and content of the    defendant’s undertaking had been.

          6.2    The plaintiff had clearly pleaded in paragraph 17 of the particulars of claim that:

“Notwithstanding demand, and in breach of the undertaking, the     Defendant has failed or refused to transfer the property to the      plaintiff alternatively to give it co-operation to effect transfer of the       property to the Plaintiff.”

          6.3    The defendant does once again commit the fundamental        error of conflating the facta probanda (which must be         pleaded and had indeed been pleaded) with the facta         probantia (which constitutes the evidence and are not           required to be pleaded);

          6.4    In any event, the particulars of claim clearly particularizes        that the breach of its undertaking was committed by the      defendant failing or refusing to transfer the property to the   plaintiff.

Sixth ground of exception.

7.      The defendant’s contention in this regard entails that the   plaintiff had not clearly pleaded payment of the purchase  price to the seller in accordance with the terms of the first    sale agreement. Therefore, so the argument runs, the      plaintiff has not pleaded the necessary facts to sustain a    cause of action against the defendant.

7.1    A is clearly evident from the particulars of claim, the   plaintiff’s main claim is for transfer of the property      based on the defendant’s undertaking set out in     Annexure “POC4”.

7.2    The plaintiff’s claim for the transfer is not against the   seller pursuant to the first sale agreement (as amended) entered into between the plaintiff and the seller – as a matter of fact, the seller is not even a   party to the action.

7.3    This complaint, perhaps intentionally so, completely    misconstrues the nature of the plaintiff’s cause of    action – the question whether or not the plaintiff had    paid the full purchase price to the seller does not constitute part of the facta probanda for purposes of any of its present claims against the defendant as the     claim for transfer is not against the seller pursuant tothe first sale agreement.

7.4    From a reading of paragraph 6 and 9 of the particulars     of claim, it’s clear that the plaintiff did in any event pay   a total of R25 000.00 to the seller in full settlement of the amended (reduced) purchase price.

7.5    It is reiterated that the allegations contained in the    particulars of claim pertaining to the amounts paid to       the seller towards the purchase price are mere surplage and do not form part of the facta probanda   which the plaintiff was required to plead. Accordingly, the defendant’s complaint that it is not clear whether in fact the plaintiff has performed fully in terms of the first    sale agreement (read with addendum) cannot found   the basis of an exception. 

7.6    Should the defendant, despite the fact that the claim for   transfer is not pursuant to the first sale agreement and its addendum, have viewed the particulars of claim in    respect of payment of the purchase price to be     contradictory, vague and/or embarrassing, the defendant was required to have served a pre-exception    Notice in terms of Rule 23(1), which it failed to do, and   is accordingly precluded from complaining that the    particulars of claim are vague or embarrassing. Also,   no prejudice is alleged by the defendant.

Legal principles.

[8]     In McKenzie v Farmer’s Cooperative Meat Industries Limited[1],   the court adopted the following definition for “cause of action”:     

  “… Every fact it would be necessary for the plaintiff to prove, if        traversed, in order to support his right to judgment of the Court. It        does not comprise every piece of evidence to prove each fact, but        every fact which is necessary to be proved”

[9]     A plaintiff is therefore merely required to set out the facta probanda          in his particulars of claim, i.e. the material facts only which must be proven to entitle such part to the relief sought by it[2]. In order to         succeed, an excipient bears the onus to persuade the court that        upon every interpretation which the pleading in question, and in         particular the document on which it is based, can reasonably bear, no cause of action or defence is disclosed – failing this, the          exception ought not to be upheld[3].

[10]   An excipient bears the onus to persuade the court that upon every interpretation which the particulars of claim could reasonable bear,      no cause of action had been disclosed[4]. The pleading must be   considered as a whole; no paragraph should be read in isolation[5]. If      there is mere uncertainty in regard to the pleader’s intention, an           excipient cannot avail himself thereof unless he shows that upon    any construction of the pleadings the claim is excipiable[6].

[11]   An excipient should make out a clear, strong case before he or she          would be allowed to succeed. Courts are reluctant to decide upon     exception questions concerning the interpretation of a contract[7]. If         evidence can be led which can supplement a cause of action alleged   in a pleading, that particular pleading is not excipiable. A pleading is      excipiable only on the basis that no possible evidence led on the        pleadings can disclose a cause of action[8].

Evaluation by the Court.

The first exception.

[12]   The plaintiff alleges in paragraph 14 of the particulars of claim that:

“On or about 15 March 2016, and at Lichtenburg the defendant, duly    represented by Bosman & Bosman Attorneys, furnished the plaintiff,      duly represented by CJP Oelofse Attorneys, with a written   undertaking that       the property would be transferred to the plaintiff. A copy of this letter is attached         hereto, marked “POC4”

The plaintiff further relies on the undertaking (POC4) in paragraph   17 of the particulars of claim wherein it is claimed that:

“Notwithstanding demand, and in breach of the undertaking, the defendant has failed or refused to transfer the property to the plaintiff, alternatively to give it   co-operation to effect transfer of the property to the plaintiff.”

[13]   The alleged undertaking (POC4) is contained in paragraph 3 of a    letter written by  Bosman & Bosman attorneys to Messers CJP Oelofse attorneys, on 15 March 2016. Paragraph 3 of the letter     reads:

          “Ons bevestig dat u sal voortgaan on ‘n konsep koopooreenkoms op te stel           en aan ons te besorg in terme waarvan die gemelde gedeelte deur Protec   verkoop word aan SM Ragee, vir die bedrag van R25 000.00, die koopprys wat            dan inderdaad reeds betaal is.”

My translation.

We confirm that you will proceed to prepare a draft sales agreement, which you will then forward to us, in terms of which     the said portion is being sold by Protec to SM Ragee, for an         amount of R25 000.00 which purchase price has already been     paid.

[14]   The nature of the exception is that the plaintiff failed to plead out if the written sale agreement referred to in paragraph 3 (already         quoted in para 14 of this judgment) was ever concluded. Section 2(1) of the Alienation of Land Act[9] (“the Act) reads:

“No alienation of land _ _ _ shall, subject to the provisions of Section 28, be of any force or effect unless it is contained in a deed of alienation signed     by the parties thereto or by their agents acting on their written authority.”    

Alienation is defined as “sale exchange or donation, irrespective of  whether it is subject to a suspensive or resolutive condition[10].

[15]   In the action which the plaintiff has instituted against the defendant,          the former will have to prove at the trial that the agreement between      the parties           for the disposal of this land was in writing. This is a facta      probanda. Therefore, the plaintiff has to plead, in the particulars of        claim, whether or not the agreement was in writing. Failure, on the      part of the plaintiff to plead that the sale agreement of this piece of     land was in writing, renders the pleadings excipiable.  

[16]   The current situation is that the plaintiff has failed to plead out that   the written sale agreement referred to in paragraph 3 was entered into.

[17]   I need to make one point clear. Counsel for the plaintiff submitted    that paragraph 3 of the letter containing an undertaking was a condition for the sale of this land. On the other hand, Counsel for    the plaintiff submitted that this was not a condition but a firm      undertaking to transfer land to the plaintiff. Simply stated, in my    view, paragraph 3 as aforesaid, contains an undertaking and a free          legal advice. When the defendant stated that the plaintiff would have       to produce a draft sales agreement, this was an implied reference     to section 2(1) of the Act. So, it is not a condition of the transfer of this property but the plaintiff, nonetheless, has a duty to plead that        the sale agreement was in writing (if it was). I need to emphasise           one aspect: an undertaking referred to in paragraph 3 is not a deed          of alienation in terms of section 2(1) of the Act.

[18]   The first exception should be upheld therefore because the    pleadings lack a material averment, which is necessary to sustain a          valid cause of action.

The second exception.

[19]   It is trite law that if evidence can be led at the trial which can    supplement a cause of action alleged in the pleading, that particular     pleading is not excipiable. A pleading is excipiable only on the basis          that no possible evidence led can disclose the cause of action. My        view is that the basis upon which the plaintiff claims the rate of        interest which is in the pleadings, is something which will be ironed out by evidence during trial. At any rate, the defendant is not in any   way handicapped in tendering a plea on the particulars of claim just       as they are. There is no potential prejudice if that is done. This        ground of exception falls to be dismissed.

The third exception.

[20]   A plaintiff is prohibited from pleading the law without pleading the    facts           leading up to the conclusion of law. In other words, a plaintiff should set out facts, in its particulars of claim from which anyone           can deduce the conclusion of law which the plaintiff avers. See in       this regard the remarks per Grosskopf JA[11]:

  “It is trite that a party has to plead – with sufficient clarity and         particularity – the material facts upon which he relied for the conclusion    of law he wishes the court to draw from those facts _ _ _. It is not         sufficient, therefore to plead a conclusion of law without pleading the     material facts giving rise to it.”

[21]   In paragraph 20.1 of the particulars of claim, the plaintiff pleads out          that:” the defendant induced the seller to enter into the second deed     of sale”. What is lacking in this plea are the facts from which the   conclusion in drawn that the defendant is guilty of inducement. This    plea also lacks material averments which are necessary to sustain       a cause of action.

The fifth exception. 

[22]   In paragraph 20.5 of the particulars of claim, the plaintiff states:

  “As a result of the defendant’s conduct in inducing the seller to breach the deed of sale, the plaintiff has suffered damages in the sum of:

20.5.1 R425 000.00 being the difference between the purchase price of R25 000.00 as contemplated in the deed of sale read with the deed of amendment, and the reasonable market value of   the property on the date that the plaintiff became entitled to    have the property transferred into her name.

Alternatively

20.5.2    R420 000.00 being the difference between the purchase price of R30 000.00 as contemplated in the deed of sale and the reasonable market value of the property on the date of   transfer into the name of the defendant.”

[23]   The defendant’s exception is that: 

5.2     The plaintiff has failed to lay out a basis for such a claim and to contend on what basis the defendant breached the   undertaking.

5.3     As a result the plaintiff has failed to plead out a completed   cause of action.”

[24]   The plaintiff is only obliged to plead facta probanda and not facta    probantia. Here, the defendant wants the plaintiff to plead evidence         which is not permissible. The plaintiff’s claim in paragraph 20.5 of        the particulars of claim is damages. Only by means of evidence at      the trial will the plaintiff have the opportunity to prove her damages   not at pleading stage. The fifth exception therefore holds no water, and has to be dismissed. 

The sixth exception.

[25]   In paragraph 6.7 of the sixth exception, (page 31 of the paginated   papers), the defendant wraps up its exception as follows:

“It is accordingly submitted that as a result of the aforesaid, the   particulars of claim does not contain the necessary facts to sustain a cause   of action insofar as it not shown out that the Plaintiff has in fact paid the   full purchase price, alternatively it is not clear whether in fact the Plaintiff    has performed in terms of her obligations towards the original sale   transaction.”

[26]   All this background to the particulars of claim, which is complained of, has nothing to do with the current defendant. All this information    has been reflected here just as a background to the current claim       against the defendant. So whether or not the plaintiff paid the full        purchase price in terms of the deed of amendment is irrelevant as regards to the plaintiff’s claim against the defendant. In other words,   whether or not the purchase price to the property was fully paid by the plaintiff does not assist the defendant in its case.

[27]   The case against the defendant is that it made a written undertaking   to transfer this property and it admitted that the price of the property    was fully paid. The defendant, in my view, has nothing to complain      about. The sixth ground of exception has no substance because the    defendant is not likely to suffer prejudice if he tenders a plea.  

Order.

[28]   In conclusion, the following order is made:

          1.      The first, third and fourth exceptions are upheld with costs.

          2.      The relevant paragraphs of the particulars of claim are struck   out.

          3.      The plaintiff is afforded an opportunity to amend the particulars of claim and deliver a notice to amend within thirty (30) days from the date of this order.  

                            

SAMKELO GURA

JUDGE OF THE HIGH COURT

ATTORNEYS

For the Applicant                  : ASIF KAKA ATTORNEYS

                                                C/o Smit Stanton Inc.

                                                29 Warren Street

                                                MAHIKENG

                                                Tel: 018 381 0180/1/2/3

                                                Ref: LF SMIT     

For the Respondent    :         PAGEL SCHULENBURG INC.

                                                C/o Labuschagne Attorneys

                                                19 Constantia Drive

                                                MAHIKENG

                                                Tel: 018 381 6828 / 074 245 5408

                                                Ref: GGL/cc/GW1065

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