Botha v Uniqon Wonings (Pty) Ltd (9751/2016) [2019] ZAGPPHC 501 (9 October 2019)

Botha v Uniqon Wonings (Pty) Ltd (9751/2016) [2019] ZAGPPHC 501 (9 October 2019)

The court held that the plaintiff's particulars of claim do not disclose a valid cause of action for compelling the defendant to sign the amended schedule for new projects, as the agreement's non-variation clause requires all amendments to be in writing and signed by both parties. The plaintiff's reliance on oral agreements for additional projects is unsustainable, as these agreements pertain to the same subject matter and terms as the extant written agreement, which expressly prohibits oral amendments. The court further found that waiver or estoppel cannot override the non-variation clause, as established by precedent. Accordingly, the exception is upheld on both the main and alternative...

Citation
[2019] ZAGPPHC 501
Parties
Plaintiff: Marthinus Theunis Steyn Botha; Defendant: Uniqon Wonings (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
9 October 2019
Case Number
9751/2016
Procedural Posture
Exception Application / Exception to Particulars of Claim; Separation of Issues Under Rule 33(4)
Outcome
Exception upheld; plaintiff granted leave to amend particulars of claim; costs awarded to defendant.
Judges
AC Basson
Legal Topics
Non Variation Clause, Contract Amendment, Exception Procedure, Waiver of Rights
Commercial and Corporate Civil Procedure Non Variation Clause Contract Amendment Exception Procedure Waiver of Rights

Case Brief

Summary, issues, holding and outcome

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Parties

Marthinus Theunis Steyn Botha

Plaintiff

Uniqon Wonings (Pty) Ltd

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim; Separation of Issues Under Rule 33(4)

Legal Issues

  1. 1 Does the plaintiff's particulars of claim disclose a valid cause of action under the written agreement for additional projects?
  2. 2 Can the plaintiff compel the defendant to sign an amended schedule for new projects?
  3. 3 Are the alleged oral agreements for additional projects enforceable in light of the non-variation clause?

Ratio Decidendi

The court held that the plaintiff's particulars of claim do not disclose a valid cause of action for compelling the defendant to sign the amended schedule for new projects, as the agreement's non-variation clause requires all amendments to be in writing and signed by both parties. The plaintiff's reliance on oral agreements for additional projects is unsustainable, as these agreements pertain to the same subject matter and terms as the extant written agreement, which expressly prohibits oral amendments. The court further found that waiver or estoppel cannot override the non-variation clause, as established by precedent. Accordingly, the exception is upheld on both the main and alternative...

Court Disposition

Exception upheld; plaintiff granted leave to amend particulars of claim; costs awarded to defendant.

Orders

  • The legal issues raised in paragraph 2.2 of the defendant's plea are separated for initial determination and the remaining issues are postponed sine die.
  • The defendant's exception is upheld.