Banda and Another v Xenforce Proprietary Limited (008220/2022) [2023] ZAGPJHC 1195 (23 October 2023)

Banda and Another v Xenforce Proprietary Limited (008220/2022) [2023] ZAGPJHC 1195 (23 October 2023)

The court found that the plaintiffs' particulars of claim are neither vague nor embarrassing and sufficiently disclose a cause of action. The oral agreements relied upon by the plaintiffs are independent contracts concluded after the breach of the initial written agreement and do not purport to amend the original contract, thus the non-variation clause does not apply. The amounts claimed arise from these oral agreements and are not damages. The doctrine of privity of contract does not preclude the plaintiffs' claims, as they are directed against the defendant, not its contractors. The exception raised by the defendant lacks merit and is dismissed.

Citation
[2023] ZAGPJHC 1195
Parties
Plaintiff: Siphamandla Bongani Banda; Plaintiff: Noxolo Linda Banda; Defendant: Xenforce Proprietary Limited
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
23 October 2023
Case Number
008220/2022
Procedural Posture
Civil Procedure / Exception to Amended Particulars of Claim
Outcome
Exception dismissed with costs.
Judges
Twala M L
Legal Topics
Exception Procedure, Oral Agreements, Housing Consumers Protection Measures Act, Privity of Contract, Specific Performance, Penalty Clauses
Civil Procedure Commercial and Corporate Land and Property Exception Procedure Oral Agreements Housing Consumers Protection Measures Act Privity of Contract Specific Performance +1 more

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Parties

Siphamandla Bongani Banda

Plaintiff

Noxolo Linda Banda

Plaintiff

Xenforce Proprietary Limited

Defendant

Procedural Posture

Civil Procedure / Exception to Amended Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs' amended particulars of claim disclose a cause of action.
  2. 2 Whether the particulars of claim are vague, embarrassing, or bad in law.
  3. 3 Whether the oral agreements are enforceable despite the non-variation clause in the written agreement.

Ratio Decidendi

The court found that the plaintiffs' particulars of claim are neither vague nor embarrassing and sufficiently disclose a cause of action. The oral agreements relied upon by the plaintiffs are independent contracts concluded after the breach of the initial written agreement and do not purport to amend the original contract, thus the non-variation clause does not apply. The amounts claimed arise from these oral agreements and are not damages. The doctrine of privity of contract does not preclude the plaintiffs' claims, as they are directed against the defendant, not its contractors. The exception raised by the defendant lacks merit and is dismissed.

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs.