Constructability & Owamajola Trading Enterprise JV v City of Matlosana Municipality and Another (K190/2018) [2022] ZANWHC 27 (13 May 2022)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION - MAHIKENG

CASE NO.: K190/2018

Reportable: YES

Circulate to Judges: YES

Circulate to Magistrates: NO

Circulate to Regional Magistrates: NO

In the matter between

CONSTRUCTABILITY & OWAMAJOLA

TRADING ENTERPRISE JV PLAINTIFF

and

CITY OF MATLOSANA MUNICIPALITY

FIRST DEFENDANT

MUNICIPAL MANAGER

CITY OF MATLOSANA

LOCAL MUNICIPALITY SECOND

DEFENDANT

Delivered: This judgment was handed down electronically by circulation to the parties' representatives by way of e-mail. The date and time of the handing down of judgment is deemed to be 10h00 a.m. on 13 May 2022.

ORDER

(a) The defendants' exception on Claim A is dismissed.

(b) The defendants' exception on Claim B is upheld.

(c) The plaintiff is granted leave to amend the particulars of claim, within fifteen (15) days of date of service of this order on the plaintiff.

(d) Each party to bear its own costs.

JUDGMENT

PETERSEN J

Introduction

[1] This matter presents two opposing exceptions. First, an exception by the defendant to the plaintiff's amended particulars of claim in accordance with Rule 23(1), on the basis that the claims set out in both Claim A and Claim Bare excipiable, in that the particulars of claim in respect of both claims are alleged to lack averments which are necessary to sustain a cause of action or defence. Second, an exception by the plaintiff to the defendant's exception on the basis that it is vague and embarrassing and lacks averments necessary to sustain a valid exception and a defence. For purposes of this judgment the parties will be referred to as cited in the main action.

Background

[2] The facts, including the common cause facts, as extracted from the plaintiff's amended particulars of claim may be succinctly summarized as follows. On or about 18 November 2010, the parties concluded a three (3) year valid written Service Level Agreement ("SLA") which would terminate in November 2013. On 21 November 2013, the defendants extended the period of the SLA by resolution of the Municipal Council. The terms of the extension included, inter alia, that the contract would be a month to month contract.

[3] The material terms of the SLA were that:

1. the Plaintiff was to reconnect and disconnect consumer's electrical service as per the policy of credit control on instruction from the debt collection department of the First Defendant.

2. the Plaintiff was to issue out fines when deemed necessary and ensure instructions are carried in due time so as to improve collection statistics in the City of Matlosana.

3. the First Defendant will be responsible for the payment of services rendered according to the specifications.

4. the First Defendant will make payments towards the Plaintiff for the work done."

The plaintiff rendered services in accordance with the terms of the extended SLA from December 2013 to June 2014.

[5] The further terms of the SLA as extended by the first defendant provided that the joint venture was extended until the completion, finalisation and evaluation and advertising of the new tender that had to be finalised as soon as possible by the Finance and Supply Chain Management; and that the successful tenderer would be appointed to commence duties immediately appointment of the new service provider.

The exceptions

[6] The grounds raised by the defendant are formulated as follows:

"AD CLAIM A

1.1 Claim A of the Particulars of Claim is based upon a purported breach of the Service Level Agreement, Annexure "P1", in that the Defendants allegedly breached the agreement by:-

"Unreasonably terminating the Service Level Agreement, without complying with the agreement of the extended period of the Service Level Agreement in that:-

12.1 At the time of termination of the agreement, the Defendants had not complied, finalised, advertised and appointed a successful bidder;

12.2 The First Defendant took decisions to do its own debt collection, contrary to the terms and/or conditions of the extension of the Service Level Agreement."

1.2 The Plaintiff pleads this as being a term of the agreement that such action had to be taken by the Defendants prior to the termination of the agreement. For such purpose, the Plaintiff relies upon a document annexed as Annexure "P2" dated 21 November 2013 and which the Plaintiff claims amended the terms of the agreement by making the termination of the agreement subjected to the two conditions that have been set out above.

1.3 The Plaintiff's case is therefore based thereon that the original Service Level Agreement was amended by the "resolution" annexed as Annexure "P2" and that those additional "terms" that were incorporated into the Service Level Agreement were breached.

1.4 Section 116 of the Local Government: Municipal Management Act, No.56 of 2003 ("the Act") requires that all contracts or agreements procured through the Supply Chain Management System of a Municipality must be writing (sic) and prescribes the terms that must be included in such agreement.

1.5 Section 116(3) of the Act states that:-

"A contract or agreement procured through Supply Chain Management Policy of the Municipality or municipal entity may be amended by the parties, but only after -

(a) The reasons for the proposed amendment have been tabled in the Council of the Municipality or, in the case of a municipal entity, in the Council of its parent Municipality;

(b) The Local Community -

(i) Has been given reasonable notice of the intention to amend the contract or agreement; and

(ii) Has been invited to submit representations to the Municipality or municipal entity."

1.6 The Plaintiff does not aver anywhere in its Particulars of Claim that the purported amendment of the terms of the Service Level Agreement as relied upon by the Plaintiff were introduced into the agreement following compliance with Section 116(3). As such, and without this having been pleaded and stated, the amendment of the original Service Level Agreement is not possible in law.

AD CLAIM B

2.1 The Plaintiff further has a Claim B which it states is the Plaintiff's Claim in Delict. This claim is not presented as an alternative to Claim A and accordingly the Plaintiff is claiming for the same "damages" in terms of both contract and delict. It is submitted that this is not possible in law.

2.2 The Plaintiff pleads that the Plaintiff (sic Defendants) owed the Defendants (sic Plaintiff) a legal duty to take certain actions and negligently breached this legal duty by failing to notify the Plaintiff of the complying, finalising advertising and appointing a successful bidder, in order for the Plaintiff to have prepared itself properly for the handing over process, between the Plaintiff and the successful bidder.

2.3 Further that:-

"17.2 Failed to give the Plaintiff reasonable notice that the Municipality would be taking over debt collection, contrary terms and/or conditions of the extension of the Service Level Agreement.

17.3 Failed to give the Plaintiff reasonable notice, in order to properly wind-up its costs of operation and re-deploy its own staff

establishment."

2.4 The Plaintiff appears to rely on a breach of the contract as being the breach of the legal duty.

2.5 The Plaintiff fails to plead that any stage the Defendants acted wrongfully, which is a requirement for a claim in delict.

2.6 The Plaintiff claims that the negligent breach of a legal duty is tied to the Defendants' failure to comply with the provisions of the extended Service Level Agreement and that it was this legal duty that was breached. The Defendants state that this averment cannot sustain a cause of action on the basis of delict in that the breach of the legal duty cannot be relied upon if the breach is a purported contractual breach, in a delictual claim. The Plaintiff can only rely a breach of a legal duty if the wrongfulness

of the breach, which is not even pleaded, appears due to the breach of a common law right, a particular statutory duty or a specific duty of care.

2.7

None of these averments are made in the Particulars of Claim and as such Claim B lacks averments that are necessary to sustain a cause of action.

In the circumstances, the Defendants pray that both the Plaintiff's Claim A and B be struck from the Particulars of Claim as not

containing averments necessary to sustain a cause of action."

[7] The gravamen of the grounds raised by the plaintiff in exception to the defendants' exception are, in turn, formulated as follows:

"AD CLAIM A

4. The ground relied upon by the Defendants in objection to Plaintiff's Claim A, relates to Plaintiff's failure to plead as to whether the amended terms of the Service Level Agreement where introduced into the agreement following compliance with Section 116(3) of Local Government: Municipal Finance Management Act No 56 of 2003 (the "MFMA").

Statement of material facts

5. The amended particulars of Plaintiff's claim, contain a clear and concise statement of material facts upon which the Plaintiff's relies on its claim, particularly from paragraph 5 (five) to 19 (nineteen) of the amended particulars of Plaintiff's claim.

8. The objection taken by the Defendants to the amended particulars of Plaintiff's claim, cannot dispose of the case in whole or in part, because interpretation of section 116(3) of MFMA is matter of Jaw and not of fact.

9. This ground of Exception is embarrassing, in that:

9.1 On interpretation of the words in section 116(3) textually (ordinary grammatical meaning) in isolation from the context the wordls appear,

would lead to different meanings, when interpreted by practitioners on opposite sides or the court;

9.2 Interpreting words in section 116(3), on their own ordinary grammatical meaning within the context they appear, would lead to different meanings, when interpreted by practitioners on opposite sides or the court;

9.3 Interpreting words in section 116(3), on their own ordinary grammatical meaning within the context they appear, inclusive of the purpose and background of MFMA, would lead to different meanings, when interpretaed by practitioners on opposing sides or the court; and

9.4 On interpreting section 116(3) of MFMA in terms of section 39(2) of the Constitution, to promote the spirit, purport and object of the bill of rights, would lead to different conclusion by this court.

Sufficient particularity

10. The amended particulars of Plaintiff's claim, are pleaded with sufficient particularity to enable the Defendant to reply, particularly from paragraph 5 (five) to 19 (nineteen) of the amended particulars of Plaintiff's claim.

12. The amended particulars of Plaintiff's claim are sufficiently pleaded because under Rule 18(4), the Plaintiff's claim is based on contract and the Plaintiff was/is only required to plead the express terms of the contract or agreement and all the terms it bases its claim.

14. In the circumstances, the defence relied upon for the dismissal of Plaintiff's Claim A, is embarrassing, because:

14.1 Firstly, Rule 18 does not require the Plaintiff to plead any legislative provision, what is required is only material facts, with sufficient particularity to enable the Defendants to reply to the amended particulars of Plaintiff's claim;

14.2 Secondly, Interpretation is matter for law and not of facts, and accordingly section 116(3) will be determined by court upon proper issues being argued by both parties;

14.3 Thirdly, the pleadings should only contain allegation of facts, that give rise to the cause of action; and

14.4 Fourthly, evidence nor law should not be pleaded.

AD CLAIMB

15. The ground relied upon by the Defendants, in support of their Exception, can be summarised in the following:

15.1 It is not possible in Jaw, to claim same damages both in contract and in delict;

15.2 The Plaintiff failed to plead that the Defendants, at any stage, acted wrongfully, which is the requirement for a claim in delict;

15.3 Plaintiff's claim in the breach of legal duty cannot be relied upon if the breach is a purported contractual breach, in delictual claim; and

15.4 The Plaintiff can only rely on breach of a legal duty if the wrongfulness of the breach, which is not even pleaded, appears due to a breach of a common Jaw right, a particular statutory duty or a specific duty of care.

Delict and breach of Contract: concurrence of actions

16. It is apposite to mention that, the Defendants' same conduct leading to this litigation constitutes both breach of contract and a delict, thus giving the Plaintiff a choice of which remedies to pursue.

17. Accordingly, the conduct of the Defendants in this action constitutes both an infringement of the Plaintiff's rights ex contractu and its right which is independent of the agreement(s).

18. In paragraph 2.1 of the Defendants' Exception, it is alleged that claiming damages both in contract and in delict, is not possible in Jaw.

19. The Defendants' averments in paragraph 2.1 of their Exception are vague in the sense that concurrence of actions in contract and in delict is not synonymous with overlapping of actions, as the Defendants allege that the claims should have been brought in alternatives.

20. The Defendants' averments in paragraph 2.1 of their Exception are embarrassing in the sense that, in our law it is acceptable that the same facts may give rise to causes of action in contract and in delict.

21. Accordingly, despite a contractual context or the fact that the particulars of Plaintiff's claim have been framed in contract, a delictual action is available, because facts pleaded establish a delictual cause of action.

22. Lastly, in terms of section 39(2) and 173 of the Constitution, this court is mandated to develop common law, to promote the spirit, purport and object of the bill of rights, and also to develop common law at the interest of justice.

Wrongfulness and breach of legal duty

23. In paragraph 2.5 of the Defendats' Exception alleges that "the Plaintiff fails to plead that at any stage the Defendants acted wrongfully, which is a requirement for a claim in delict".

24. The Plaintiff's claim B, is based on breach of legal duty, as pleaded from paragraph 17.1 to 18.2 of the amended particulars of claim. As such, in our law a breach of a legal duty is an independent criterion for determining wrongfulness and plays a vital role in founding a liablilty in cases where no infringement of a right is evident.

25. Therefore, the Defendants' a/legations in paragraph 2.5 of their Exception are vague in sense that, the existence of a legal duty to act is a conclusion of law not of fact reached after consideration of all the circumstances of the Plaintiff's case.

26. On textual interpretation of Rule 18(4), within the context it appears, the words are clear and unambiguous, in the sense that the Plaintiff is required to plead material facts.

27. The Defendants' allegations in paragraph 2.5 of their Exception, are vague and embarrassing, because it would not have been the intention of the law maker for the Plaintiff to plead wrongfulness, because wrongfulness functions to determine whether the Defendants' breach of their legal duty demands the imposition of liability, and that is a judicial determination.

28. Therefore, it is not a requirement to plead wrongfulness, it will be determined upon facts pleaded in the Plaintiff's particulars of claim."

The general legal principles applicable to exceptions

[8] Before considering the complaints of the defendant and plaintiff, it is apposite to consider the legal principles applicable to exceptions and pleadings in general. Rule 18(4) of the Uniform Rules of Court provides that:

'Every pleading shall contain a clear and concise statement of the material facts upon which the pleader relies for his claim, defence or answer to any pleading, as the case may be with sufficient particularity to enable the opposite party to reply thereto. '

[9] Rule 23(1) and (3) of the Uniform Rules of Court, in turn, provides:

"(1) Where any pleading is vague and embarrassing, or lacks averments which are necessary to sustain an action or defence, as the case may be, the opposing party may, within the period allowed for filing any subsequent pleading, deliver an exception thereto and may apply to the registrar to set it down for hearing within 15 days after the delivery of such exception.

(3) Wherever an exception is taken to any pleading, the grounds upon which the exception is founded shall be clearly and concisely

stated."

[10] Rule 18(4) sets out two requirements a pleader must meet:

1. a clear and concise statement of the material facts upon which the claim ... is based; and

2. setting out the material facts with sufficient particularity to enable the opposite party to replicate.

[11] In Trope v South African Reserve Bank and Another and Two Other cases[1] McCreath J said the following in respect of pleadings:

'It is, of course, a basic principle that particulars of claim should be so phrased that a defendant may reasonably and fairly be required to plead thereto. This must be seen against the background of the further requirement that the obiect of pleadings is to enable each side to come to trial prepared to meet the case of the other and not be taken by surprise. Pleadings must therefore be lucid and logical and in an intelligible form; the cause of action or defence must appear clearly from the factual a/legations made (Harms Civil Procedure in the Supreme Court at 263-4).'

(my emphasis)

[12] In Buchner v Johannesburg Consolidated Investments Company Limited[2], De Klerk J stated as follows:

"...It is fundamental to the judicial process that the facts have to be established. The Court, on the established facts, then applies the rules of Jaw and draws conclusions as regards the rights and obligations of the parties and gives judgment. A summons which propounds the plaintiff's own conclusions and opinions instead of the material facts is defective. Such a summons does not set out a cause of action. It would be wrong if a Court were to endorse a plaintiff's opinion by elevating it to a iudgment without first scrutinising the facts upon which the opinion is based." (my emphasis)

[13] In Jowell v Bramwell-Jones and Others[3] Heher J summarized the general principles to be borne in mind when considering exceptions:

'(a) minor blemishes are irrelevant;

(b) pleadings must be read as a whole; no paragraph can be read in isolation;

(c) a distinction must be drawn between the facta probanda, or primary factual allegations which every plaintiff must make, and the facta probantia, which are the secondary allegations upon which the plaintiff will rely in support of his primary factual allegations. Generally speaking, the latter are matters for particulars for trial and even then are limited. For the rest, they are matters for evidence;

(d) only facts need be pleaded; conclusions of law need not be pleaded;

(e) bound up with the last-mentioned consideration is that certain allegations expressly made may carry with them implied a/legations and the pleading must be so read.'

[14] In Mosothokazi Share Trust & Others v Broll Auctions and Sale (Pty) Ltd & Another; In re: v Broll Auctions and Sale (Pty) Ltd & Another v Mosothokazi Share Trust & Others[4] Van der Linde J similarly and very succinctly set out the principles applicable to exceptions, as follows:

"[4] The first principle is that exceptions are there to weed out unmeritorious causes, whether claims or defences. They are not there to exact perfection in pleading.

[5] The second principle is that in considering whether a pleading is excipiable, the pleading must be viewed from the perspective of every reasonable interpretation that it can bear. Unless thus viewed the pleading remains vague and embarrassing, the exception cannot succeed.

[6] The third principle is that an exception on the basis that the pleading is vague and embarrassing needs to strike at the pleading as a whole, and not only certain paragraphs, before it will succeed.

[7] The fourth principle is that a plaintiff need only set out the framework of its cause of action in its particulars of claim; evidence is not required to be pleaded."

[15] Finally, in Ocean Echo Properties 327 CC and Another v Old Mutual Life Assurance Company (South Africa) Limited[5] Ponnan JA restated the duty of an excipient:

'Since these are proceedings on exception, Old Mutual has the duty as excipient to persuade the court that upon every interpretation which the plea can reasonably bear, no defence is disclosed. The main purpose of an exception is to avoid the leading of unnecessary evidence. By the nature of exception proceedings the correctness of the facts averred in the plea must be assumed. Because Old Mutual chose the exception procedure - instead of having the matter decided after the hearing of evidence at the trial

- it had to show that the plea is (not may be) bad in law.'

[16] The aforesaid authorities set out the general principles applicable to pleadings. In the present matter, the defendant (excipient's) complaint is that the particulars of claim do not set out a cause of action. The plaintiff (excipient's) complaint in turn is that the defendant's exception is vague and embarrassing.

The authorities on concurrence of actions in contract and delict

[17] The circumstances under which a breach of contract may run concurrently with a claim in delict, has always been a contentious issue. The majority judgment in Lillicrap, Wassenaar & Partners v Pilkington Brothers (SA) (Pty) Ltd[6] ("Lillicrap") is often cited as authority for the contention that the mere fact that a plaintiff has a claim in contract does not mean that such a plaintiff may not also have a claim in delict. The question being whether there are pleaded facts that can establish a cause of action in delict.

[18] To appreciate the majority decision in Lillicrap in full context, the following remarks by Groskopff AJA is apposite:

"...The only infringement of which the respondent complains is the infringement of the appellant's contractual duty to perform specific professional work with due diligence; and the damages which the respondent claims, are those which would place it in the position it would have occupied if the contract had been properly performed. In determining the present appeal we accordingly have to decide whether the infringement of this duty is a wrongful act for purposes of Aguilian liability. No authority in Roman or Roman­ Dutch law has been quoted, nor have I found any, for the proposition that the breach of such a contractual duty is per se a wrongful act for purposes of Aquilian liability (with the corollary that, if the breach were accompanied by culpa, damages could be claimed ex delicto) ..."

[19] Grosskopf AJA went on to say in Lillicrap[7]:

"In considering whether an extension of Aguilian liability is justified in the present case, the first question that arises is whether there is a need therefor. In my view, the answer must be in the negative, at any rate in so far as liability is said to have arisen while there was a contractual nexus between the parties. While the contract persisted, each party had adequate and satisfactory remedies if the other were to have committed a breach. Indeed the very relief claimed by the respondent could have been granted in an action based on breach of contract.

Moreover, the Aquilian action does not fit comfortably in a contractual setting like the present. When parties enter into such a contract, they normally regulate those features which they consider important for the purpose of the relationship which they are creating. This does not of course mean that the law may not impose additional obligations by way of naturalia arising by implication of law, or. as I have indicated above. those arising ex delicto independently of the contract. However, in general, contracting parties contemplate that their contract should lay down the ambit of their reciprocal rights and obligations. To that end they would define, expressly or tacitly, the nature and quality of the performance required from each party. If the Aquilian action were generally available for defective performance of contractual obligations, a party's performance would presumably have to be tested not only against the definition of his duties in the contract, but also by applying the standard of the bonus paterfamilias. How is the latter standard to be determined? Could it conceivably be higher or lower than the contractual one? If the standard imposed by law differed in theory from the contractual one, the result must surely be that the parties agreed to be bound by a particular standard of care and thereby excluded any standard other than the contractual one. If, on the other hand, it were to be argued that the bonus paterfamilias would always comply with the standards laid down by a contract to which he is a party, one would in effect be saying that the law of delict can be invoked to reinforce the law of contract. I can think of no policy consideration to justify such a conclusion. See in this regard the dissenting speech of Lord BRANDON in the Junior Books case supra at 551E - 552E with which Lord KEITH of Kinkel agreed at 536G - 5370 of the report. In the present case, the respondent repeatedly emphasized in its pleadings that it was its detailed requirements, as laid down in the contract between the parties, which defined the ambit of the appellant's obligations. It is these requirements which, according to the respondent, set the standard by which negligence falls to be determined. See para 4 (b) of the respondent's amended particulars of claim read with para 1 (a) of the respondent's further particulars dated 19 August 1981, as also paras 5, 6 and 7 of the particulars of claim and para 10 (d) of the said further particulars. It seems anomalous that the delictual standard of culpa or fault should be governed by what was contractually agreed upon by the parties.

To sum up, I do not consider that policy considerations. require that delictual liability be imposed for the negligent breach of a contract of professional employment of the sort with which we are here concerned." (my emphasis)

[20] The debate continued in Holtzhausen v ABSA Bank Ltd ("Holtzhausen')[8] where Cloete JA, with reference to Lillicrap said the following:

"[6] Lillicrap decided that no claim is maintainable in delict where the negligence relied on consists in the breach of a term in a contract. That is quite apparent from what was said by Grosskopff AJA at 499A-501H. The passage begins:

In applying the test of reasonableness to the facts of the present case, the first consideration to be borne in mind is that the respondent does not contend that the appellant would have been under a duty to the respondent to exercise diligence if no contract had been concluded requiring it to perform professional services.

The learned judge emphasised at 499O-F:

The only infringement of which the respondent complains is the infringement of the appellant's contractual duty to perform specific professional work with due diligence; and the damages which the respondent claims, are those which would place it in the position it would have occupied if the contract had been properly performed. In determining the present appeal we accordingly have to decide whether the infringement of this duty is a wrongful act for purposes of Aquilian liability.

The following passage written by JC van der Walt in Joubert (ed) The Law of South Africa vol 8 para 5 was approved (at 4991):

The same conduct may constitute both a breach of contract and a delict. This is the case where the conduct of the defendant constitutes both an infringement of the plaintiff's rights ex contractu and a right which he had independently of the contract.

(The italics were added by the learned judge.)

The judgment went on to point out (at 500A-B) that:

Apart from the judgments in Van Wyk v Lewis (supra) this Court has never pronounced on whether the negligent performance of professional

services, rendered pursuant to a contract, can give rise to the actio legis Aquiliae.

The learned judge then gave reasons why Aquilian liability should not be extended to cover the respondent's claim (at 500F-501G) and concluded (at 501G-H):

To sum up, I do not consider that policy considerations require that delictual liability be imposed for the negligent breach of a contract of professional employment of the sort with which we are here concerned.

[7] Lillicrap is not authority for the more general proposition that an action cannot be brought in delict if a contractual claim is competent. On the contrary. Grosskopff AJA was at pains to emphasise (at 496D-/J that our law acknowledges a concurrence of actions where the same set of facts can give rise to a claim for damages in delict and in contract, and permits the plaintiff in such a case to choose which he wishes to pursue." (my emphasis)

[21] Whilst the Holtzhausen decision and in particular paragraph 7 endorses the concurrence of actions in contract and delict, the Constitutional Court, in Country Cloud Trading CC v MEG, Department of Infrastructure Development ("Country Cloud")[9], appears to take a different view, where it weighed in on the issue of concurrence of claims in contract and delict, as follows:

"[63] In Lillicrap Grosskopf AJA for the then Appellate Division held as follows in the course of declining to recognise the plaintiff's delictual claim:

'(l)n general, contracting parties contemplate that their contract should lay down the ambit of their reciprocal rights and obligations. To that end they would define, expressly or tacitly, the nature and quality of the performance required from each party.'

Contracts may, apart from defining the parties' respective duties, regulate other aspects of their relationship. They may limit or extend liability, impose penalties or grant indemnities, or provide special methods of settling disputes. For this reason courts should be wary of extending the law of delict where there are existing contractual relationships. This may subvert provisions the parties considered necessary or desirable for their own protection and introduce an unwanted liability that •could provide a trap for the unwary'.

[64] On this basis the Supreme Court of Appeal held in Two Oceans Aquarium that delictual claims do not usually 'fit comfortably in a contractual setting'. Pertinently, the court asked:

'(W)hat if the respondent had been asked, but refused to give a contractual warranty in respect of the work that it had done ... ? Would it still be held liable in delict if that work was negligently done?'

The court's implicit answer was 'no', and it refused to recognise the plaintiff's claim.

[65] Where parties take care to delineate their relationship by contractual boundaries, the law should hesitate before scrubbing out the lines they have laid down by superimposing delictual liability. That could subvert their autonomous dealings. This underscores the broader point made by this court in Barkhuizen that, within bounds, contractual autonomy claims some measure of respect."

[22] Country Cloud, although not said in so many words, appears at first glance to overturn the ratio in Lillicrap and confirmed in Holtzhausen in respect of concurrent claims in contract and delict. Does that imply that a cause of action in contract with a claim in delict is not actionable?

Discussion

[23] It is clear on reading of the authorities that the principles set out in Lillicrap and endorsed in Holtzhausen on concurrency of claims in contract and delict and alluded to in Country Cloud, relate in the main to contractual relationships of an economic nature where the essence of the relationship of the parties is regulated contractually. As emphasized in Holtzhausen, "The same conduct may constitute both a breach of contract and a delict. This is the case where the conduct of the defendant constitutes both an infringement of the plaintiff's rights ex contractu and a right which he had independently of the contract." The question therefore is whether the plaintiff has a right independently of the contract.

[24] It is apposite in determining whether the plaintiff has a right independently of the contract, and specifically premised on the fact that the issue central to the exceptions of the defendant on CLAIMS A and B is predicated on an alleged absence of a cause of action, to consider exactly what is meant by a cause of action. The Appellate Division as far back 1910, provided a very succinct definition of what constitutes a "cause of action" in McKenzie v Farmers' Co-operative Meat Industries Ltd[10] where the following was said:

'... every fact which 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 which is necessary to prove each fact, but every fact which is necessary to be proved.' (my emphasis)

[25] The Appellate Division with reference to Mckenzie went on to say in Evins v Shield Insurance Co Ltd[11], that:

"Cause of action is ordinarily used to describe the factual basis, the set of material facts, that begets the plaintiff's legal right of action."

[26] I turn to consider Claim A. The defendant, in the main, impugns Claim A on the basis that the plaintiff fails to reference section 116 of the Local Government: Municipal Management Act 56 of 2003 ("the Act") and its pertinent

requirements in its particulars of claim. On reading of Claim A to the particulars of claim, the plaintiff pertinently pleads that its claim is based on contract and to that end goes as far an appending the extended SLA on which it relies. Is there therefore a need for the plaintiff to specifically allege the provisions of section 116 of the Act?

[27] Rule 18(6) provides that:

"A party who in his pleading relies upon a contract shall state whether the contract is written or oral and when, where and by whom it was concluded, and if the contract is written a true copy thereof or of the part relied on in the pleading shall be annexed to the pleading."

[28] The plaintiff, in my view, has fully complied with the tenets of Rule 18(6), setting out that its cause of action is predicated on the extended SLA, which it further annexed to the pleading. To what extent the plaintiff complied with section 116 of the Act is an issue best left for consideration by the trial court upon adjudication of the evidence (the facts) presented by the plaintiff. On all interpretations of CLAIM A, there can be no doubt that it is based on the extended SLA and further reference to section 116 of the Act cannot be construed as being excipiable. It may possibly be raised as a special plea as submitted by the plaintiff but it is not excipiable.

[29] The defendant's exception on Claim A stands to be dismissed, not on the basis of vagueness as the plaintiff takes exception to, but arguably because CLAIM A, in my view, sets out a cause of action which is capable of adjudication.

[30] I turn to consider CLAIM B. The formulation of CLAIM B must be carefully considered having regard to the salient terms of the extended SLA. The plaintiff in this regard pleads that the defendant owed it a legal duty to take certain actions and negligently breached this legal duty by failing to notify the plaintiff of the complying, finalising advertising and appointing of a successful bidder, for the plaintiff to have prepared itself properly for the handing over process, between the plaintiff and the successful bidder. The plaintiff further pleads that the defendant failed to give the plaintiff reasonable notice that it would be taking over debt collection, contrary terms and/or conditions of the extension of the Service Level Agreement. And finally pleads that the defendant failed to give the plaintiff reasonable notice to allow it to properly wind-up its costs of operation and to re-deploy its own staff establishment.

[31] The aforesaid plea purports to implicate the breach of a legal duty by the defendant premised on the terms and conditions of the extended SLA. The damages in the event of a finding in favour of the plaintiff on two substantive claims in contract and delict, predicated on a breach of the terms of the SLA, would necessarily imply that the plaintiff is awarded double damages for two claims arising from the same cause of action. In this regard the sentiments expressed at paragraphs 63 to 65 of Country Cloud supra are apposite. The very basis of the relationship between the parties is ensconced in contract and delineates in no uncertain terms, the remedies for breach of contract. The plaintiff, however, is not precluded from claiming in delict as an alternative, but that is a far cry from a substantive claim in delict which runs concurrently with a claim in contract.

[32] The exception as formulated by the defendant in respect of the complaint premised on CLAIM B (in delict) is, accordingly in my view, well founded and should accordingly be upheld. It follows that the exception taken by the plaintiff to the defendant's exception on CLAIM B, being vague and embarrassing stands to be dismissed.

[33] In passing, the plaintiff's exceptions taken to the defendants' exceptions is unprecedented. In essence, what the plaintiff in fact appears to have done in raising the exceptions to the defendants' exceptions was nothing more than oppose the defendants' exceptions, which is the course ordinarily followed in matters of this nature.

Costs

[34] Costs ordinarily follow suit. The defendants and the plaintiff have both been substantially successful in this matter, the plaintiff in opposing the exception on CLAIM A and the defendant is exception on CLAIM B. In my view, fairness dictates that each party should accordingly bear its own costs.

Order

[35] In the result, the following order is made:

(a) The defendants' exception on Claim A is dismissed.

(b) The defendants' exception on Claim Bis upheld.

(c) The plaintiff is granted leave to amend the particulars of claim, within fifteen (15) days of date of service of this order on the plaintiff.

(d) Each party to bear its own costs.

A H PETERSEN

JUDGE OF THE HIGH COURT,

NORTH WEST DIVISION, MAHIKENG

APPEARANCES

DATE OF HEARING

21 FEBRUARY 2022

DATE OF JUDGMENT 13 MAY 2022

COUNSEL FOR PLAINTIFF ADV. M. RAMAILI

with ADV T MOLOI

Instructed by NKUNA ROSE ATTORNEYS

c/o NTSAMAI

ATTORNEYS INC

54 MOLOPO ROAD

GOLFVIEW

MAHIKENG

COUNSEL FOR DEFENDANT : ADV. M. M. RIP SC

Instructed by MAPONYA

LEDWABA ATTORNEYS

c/o SEMAUSHU

ATTORNEYS

29 PROCTOR AVENUE

[1] 1992 (3) SA 208 (T) at 210 G-H

[2] 1995 (1) SA 215 (T) at 216H-J.

[3] 1998 (1) SA 836 (W) 903 A-B

[4] (29772/2015) [2016] ZAGPJHC 111 (13 May 2016) at paras [4] to [7].

[5] 2018 (3) SA 405 (SCA) at para [9].

[6] 1985 (1) SA 475 (A) at 496.

[7] At 500E-501H

[8] 2008 (5) SA 630 (SCA) at 633E-I; paras [6]-[7].

[9] 2015 (1) SA 1 (CC) at paras [63] - [65].

[10] 1922 AD 16 at 23.

[11] 1980 (2) SA 814 (A) at 838E-F