Bon Com (Pty) Ltd and Another v Services Sector For Education Training and Authority and Others (2021/13157) [2023] ZAGPJHC 1156 (13 October 2023)

Bon Com (Pty) Ltd and Another v Services Sector For Education Training and Authority and Others (2021/13157) [2023] ZAGPJHC 1156 (13 October 2023)

The court held that the Plaintiffs' particulars of claim failed to disclose a cause of action in delict, as the agreements relied upon were merely 'agreements to agree' and thus not binding or enforceable. The alleged misrepresentation related to future conduct and required fault in the form of dolus, which was not pleaded. The damages claimed were not causally connected to any actionable misrepresentation. The alternative claim based on 'legitimate expectation' was rejected, as this doctrine does not create a new source of liability outside contract, delict, unjust enrichment, or statute. The attempt to invoke the court's power to develop the common law was unsupported by pleaded facts....

Citation
[2023] ZAGPJHC 1156
Parties
Plaintiff: Bon Com (Pty) Ltd; Plaintiff: BC Training Academy (Pty) Ltd; Defendant: Services Sector For Education Training and Authority; Defendant: Minister of Higher Education, Science and Technology; Defendant: National Skills Authority
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 October 2023
Case Number
2021/13157
Procedural Posture
Civil Procedure / Exception to Particulars of Claim
Outcome
Exception upheld; particulars of claim struck out with leave to amend.
Judges
G Farber
Legal Topics
Agreement to Agree, Negligent Misrepresentation, Legitimate Expectation, Development of Common Law
Civil Procedure Delict Commercial and Corporate Agreement to Agree Negligent Misrepresentation Legitimate Expectation Development of Common Law

Case Brief

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Parties

Bon Com (Pty) Ltd

Plaintiff

BC Training Academy (Pty) Ltd

Plaintiff

Services Sector For Education Training and Authority

Defendant

Minister of Higher Education, Science and Technology

Defendant

National Skills Authority

Defendant

Procedural Posture

Civil Procedure / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim disclose a cause of action in delict against the First Defendant.
  2. 2 Whether a claim based on 'legitimate expectation' constitutes a sustainable cause of action in these circumstances.
  3. 3 Whether the pleaded facts justify the development of the common law under section 173 of the Constitution.

Ratio Decidendi

The court held that the Plaintiffs' particulars of claim failed to disclose a cause of action in delict, as the agreements relied upon were merely 'agreements to agree' and thus not binding or enforceable. The alleged misrepresentation related to future conduct and required fault in the form of dolus, which was not pleaded. The damages claimed were not causally connected to any actionable misrepresentation. The alternative claim based on 'legitimate expectation' was rejected, as this doctrine does not create a new source of liability outside contract, delict, unjust enrichment, or statute. The attempt to invoke the court's power to develop the common law was unsupported by pleaded facts....

Court Disposition

Exception upheld; particulars of claim struck out with leave to amend.

Orders

  • The exception is upheld and the First and Second Plaintiffs' particulars of claim are struck out.
  • The First and Second Plaintiffs are granted leave to amend their particulars of claim within 20 days of publication of this Judgment.