M&J Da Costa Brothers (Pty) Ltd and Another vs Karan (2021/58699) [2023] ZAGPJHC 13 (13 January 2023)

M&J Da Costa Brothers (Pty) Ltd and Another vs Karan (2021/58699) [2023] ZAGPJHC 13 (13 January 2023)

The court held that the plaintiffs' particulars of claim lack the necessary averments to sustain a cause of action. The oral agreement alleged by the plaintiffs is not admissible as it seeks to vary the written contract, which contains a clear non-variation clause requiring amendments to be in writing and signed by both parties. The parol evidence rule precludes the introduction of extrinsic evidence that contradicts or adds to the written contract. The conduct of the parties after the conclusion of the agreement does not permit the court to interpret the contract in a manner inconsistent with its plain and unambiguous terms. The only remedy for the plaintiffs, if the written contract...

Citation
[2023] ZAGPJHC 13
Parties
Plaintiff: M&J Da Costa Brothers (Pty) Ltd; Plaintiff: Manjoh Ranch (Pty) Ltd; Defendant: Ivor Michael Karan
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 January 2023
Case Number
2021/58699
Procedural Posture
Exception Application / Exception to Particulars of Claim
Outcome
Exception upheld. Plaintiffs afforded 15 days to deliver amended particulars of claim. Plaintiffs to pay defendant's costs, including costs of two counsel where employed.
Judges
F Bezuidenhout
Legal Topics
Contract Interpretation, Parol Evidence Rule, Non Variation Clause, Rectification, Exception Procedure
Commercial and Corporate Civil Procedure Contract Interpretation Parol Evidence Rule Non Variation Clause Rectification Exception Procedure

Case Brief

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Parties

M&J Da Costa Brothers (Pty) Ltd

Plaintiff

Manjoh Ranch (Pty) Ltd

Plaintiff

Ivor Michael Karan

Defendant

Procedural Posture

Exception Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiffs' particulars of claim disclose averments necessary to sustain a cause of action against the defendant.
  2. 2 Whether the oral agreement alleged by the plaintiffs is precluded by the written contract's non-variation clause and the parol evidence rule.
  3. 3 Whether the conduct of the parties after conclusion of the written agreement allows for extrinsic evidence to vary the contract.

Ratio Decidendi

The court held that the plaintiffs' particulars of claim lack the necessary averments to sustain a cause of action. The oral agreement alleged by the plaintiffs is not admissible as it seeks to vary the written contract, which contains a clear non-variation clause requiring amendments to be in writing and signed by both parties. The parol evidence rule precludes the introduction of extrinsic evidence that contradicts or adds to the written contract. The conduct of the parties after the conclusion of the agreement does not permit the court to interpret the contract in a manner inconsistent with its plain and unambiguous terms. The only remedy for the plaintiffs, if the written contract...

Court Disposition

Exception upheld. Plaintiffs afforded 15 days to deliver amended particulars of claim. Plaintiffs to pay defendant's costs, including costs of two counsel where employed.

Orders

  • The exception is upheld.
  • The plaintiffs are afforded a period of 15 days from date of this order to deliver amended particulars of claim.