Bester v Ronmarto Ontwikkeling CC and Another (156/2018) [2018] ZAFSHC 220 (29 November 2018)

Bester v Ronmarto Ontwikkeling CC and Another (156/2018) [2018] ZAFSHC 220 (29 November 2018)

The court found that the plaintiff's particulars of claim were vague and embarrassing and did not disclose a sustainable cause of action. The written contract between the parties contained a non-variation clause, which barred any oral agreements from having legal effect. The plaintiff was not entitled to introduce evidence of an oral agreement contrary to the clear and unambiguous terms of the written contract. The exception was upheld as the plaintiff failed to cure the defects despite being given notice. The plaintiff was afforded an opportunity to amend the particulars of claim, and costs were awarded against him.

Citation
[2018] ZAFSHC 220
Parties
Plaintiff: Martin Freddie Bester; Defendant: Ronmarto Ontwikkeling CC; Defendant: JJ van der Westhuizen
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
29 November 2018
Case Number
156/2018
Procedural Posture
Exception Application / Exception to Particulars of Claim; Interlocutory
Outcome
Exception upheld; particulars of claim struck out; plaintiff granted leave to amend within 10 days; costs awarded against plaintiff.
Judges
Chesiwe
Legal Topics
Exception to Pleadings, Oral Vs Written Contract, Shifren Rule, Parol Evidence Rule
Civil Procedure Commercial and Corporate Exception to Pleadings Oral Vs Written Contract Shifren Rule Parol Evidence Rule

Case Brief

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Parties

Martin Freddie Bester

Plaintiff

Ronmarto Ontwikkeling CC

Defendant

JJ van der Westhuizen

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Interlocutory

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim disclose a cause of action or are vague and embarrassing.
  2. 2 Whether an oral agreement can be relied upon in the face of a written contract containing a non-variation clause.
  3. 3 Whether the plaintiff is barred from introducing evidence contrary to the written agreement.

Ratio Decidendi

The court found that the plaintiff's particulars of claim were vague and embarrassing and did not disclose a sustainable cause of action. The written contract between the parties contained a non-variation clause, which barred any oral agreements from having legal effect. The plaintiff was not entitled to introduce evidence of an oral agreement contrary to the clear and unambiguous terms of the written contract. The exception was upheld as the plaintiff failed to cure the defects despite being given notice. The plaintiff was afforded an opportunity to amend the particulars of claim, and costs were awarded against him.

Court Disposition

Exception upheld; particulars of claim struck out; plaintiff granted leave to amend within 10 days; costs awarded against plaintiff.

Orders

  • The plaintiff’s particulars of claim are struck out.
  • The plaintiff is afforded 10 days within which to amend the particulars of claim.