Group Five Building Ltd. v Government of the Republic of South Africa, Represented by Minister of Public Works and Land Affairs (400/91) [1993] ZASCA 4; 1993 (2) SA 593 (AD); [1993] 2 All SA 127 (A) (18 February 1993)

Group Five Building Ltd. v Government of the Republic of South Africa, Represented by Minister of Public Works and Land Affairs (400/91) [1993] ZASCA 4; 1993 (2) SA 593 (AD); [1993] 2 All SA 127 (A) (18 February 1993)

The Supreme Court of Appeal held that the particulars of claim failed to disclose a cause of action for breach of contract, as the alleged tacit or implied term regarding the timing of variation orders conflicted with the express provisions of the building contract. The contract expressly regulated the issuance of variations and the contractor's remedies for delay, precluding the implication of a further term as pleaded. However, the court found that the practice and policy of South African law require that, where an exception is upheld on the ground that no cause of action is disclosed, the proper order is to set aside the particulars of claim and grant the plaintiff leave to amend,...

Citation
[1993] ZASCA 4
Parties
Appellant: Group Five Building Limited; Respondent: Government of the Republic of South Africa, Represented by Minister of Public Works and Land Affairs
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
18 February 1993
Case Number
400/91
Procedural Posture
Civil Appeal / Appeal From Full Court Decision on Exception; Supreme Court of Appeal
Outcome
Appeal allowed in part; particulars of claim set aside with leave to amend; appellant awarded half costs of appeal.
Judges
Corbett, Hefer, Vivier, Eksteen, Krieger
Legal Topics
Exception to Particulars of Claim, Building Contracts, Implied Terms, Leave to Amend, Breach of Contract
Civil Procedure Commercial and Corporate Exception to Particulars of Claim Building Contracts Implied Terms Leave to Amend Breach of Contract

Case Brief

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Parties

Group Five Building Limited

Appellant

Government of the Republic of South Africa, Represented by Minister of Public Works and Land Affairs

Respondent

Procedural Posture

Civil Appeal / Appeal From Full Court Decision on Exception; Supreme Court of Appeal

Legal Issues

  1. 1 Whether the particulars of claim disclosed a cause of action for breach of contract.
  2. 2 Whether a tacit or implied term regarding the timing of variation orders could be read into the building contract.
  3. 3 Whether the court a quo erred by dismissing the action instead of granting leave to amend the particulars of claim.

Ratio Decidendi

The Supreme Court of Appeal held that the particulars of claim failed to disclose a cause of action for breach of contract, as the alleged tacit or implied term regarding the timing of variation orders conflicted with the express provisions of the building contract. The contract expressly regulated the issuance of variations and the contractor's remedies for delay, precluding the implication of a further term as pleaded. However, the court found that the practice and policy of South African law require that, where an exception is upheld on the ground that no cause of action is disclosed, the proper order is to set aside the particulars of claim and grant the plaintiff leave to amend,...

Court Disposition

Appeal allowed in part; particulars of claim set aside with leave to amend; appellant awarded half costs of appeal.

Orders

  • The plaintiff's particulars of claim are set aside with costs and plaintiff is given leave, if so advised, to file amended particulars of claim within one month.
  • Appellant is entitled to half his costs of appeal to the Full Court and to this Court.