Qualitor (Pty) Ltd v Emfuleni Resorts (Pty) Ltd and Others (1505/13) [2014] ZAGPPHC 323 (30 May 2014)

Qualitor (Pty) Ltd v Emfuleni Resorts (Pty) Ltd and Others (1505/13) [2014] ZAGPPHC 323 (30 May 2014)

The court found that the plaintiff's particulars of claim did not comply with rule 18(6) as the annexed template was not the actual agreement and the plaintiff failed to seek condonation under rule 27(3). The absence of the signed agreement prejudiced the defendants, who could not properly plead to the claim. The amendment regarding the written agreement was refused, but the amendment regarding the oral agreement was granted as the exclusion of clause 12 cured the defect. The conditional claim for vindication in claim thirteen was unsustainable because the plaintiff simultaneously pleaded that the contracts subsisted and sought relief based on cancellation, which is legally inconsistent....

Citation
[2014] ZAGPPHC 323
Parties
Plaintiff: Qualitor (Pty) Ltd; Defendant: Emfuleni Resorts (Pty) Ltd; Defendant: Afrisun Gauteng (Pty) Ltd; Defendant: Sun International (South Africa) Ltd; Defendant: Teemane (Pty) Ltd; Defendant: Sunwest International (Pty) Ltd; Defendant: Meropa Leisure and Entertainment (Pty) Ltd; Defendant: Afrisun KZN (Pty) Ltd; Defendant: Transkei Sun (Pty) Ltd; Defendant: Mangaung Sun (Pty) Ltd; Defendant: Lesotho Sun (Pty) Ltd; Defendant: Manzane Estates Ltd; Defendant: Ezulwini Properties (Pty) Ltd; Defendant: Sun International Management Limited (Incorporated in Bermuda)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
30 May 2014
Case Number
1505/13
Procedural Posture
Exception Application / Ruling on Exception and Amendment to Particulars of Claim
Outcome
Exceptions upheld in respect of the written agreement and claim thirteen; amendment granted in respect of the oral agreement; particulars of claim struck out; plaintiff granted leave to amend within ten days; costs awarded against plaintiff.
Judges
Hughes
Legal Topics
Pleading Requirements, Rule 18 6 Uniform Rules, Contract Repudiation, Oral Vs Written Contract, Amendment of Pleadings
Civil Procedure Commercial and Corporate Pleading Requirements Rule 18 6 Uniform Rules Contract Repudiation Oral Vs Written Contract Amendment of Pleadings

Case Brief

Summary, issues, holding and outcome

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Parties

Qualitor (Pty) Ltd

Plaintiff

Emfuleni Resorts (Pty) Ltd

Defendant

Afrisun Gauteng (Pty) Ltd

Defendant

Sun International (South Africa) Ltd

Defendant

Teemane (Pty) Ltd

Defendant

Sunwest International (Pty) Ltd

Defendant

Meropa Leisure and Entertainment (Pty) Ltd

Defendant

Afrisun KZN (Pty) Ltd

Defendant

Transkei Sun (Pty) Ltd

Defendant

Mangaung Sun (Pty) Ltd

Defendant

Lesotho Sun (Pty) Ltd

Defendant

Manzane Estates Ltd

Defendant

Ezulwini Properties (Pty) Ltd

Defendant

Sun International Management Limited (Incorporated in Bermuda)

Defendant

Procedural Posture

Exception Application / Ruling on Exception and Amendment to Particulars of Claim

Legal Issues

  1. 1 Whether the plaintiff's particulars of claim comply with rule 18(6) of the Uniform Rules of Court regarding reliance on a written or oral contract.
  2. 2 Whether the plaintiff's proposed amendments cure the defects identified in the defendants' exceptions.
  3. 3 Whether the plaintiff can rely on a template agreement as evidence of the written contract.

Ratio Decidendi

The court found that the plaintiff's particulars of claim did not comply with rule 18(6) as the annexed template was not the actual agreement and the plaintiff failed to seek condonation under rule 27(3). The absence of the signed agreement prejudiced the defendants, who could not properly plead to the claim. The amendment regarding the written agreement was refused, but the amendment regarding the oral agreement was granted as the exclusion of clause 12 cured the defect. The conditional claim for vindication in claim thirteen was unsustainable because the plaintiff simultaneously pleaded that the contracts subsisted and sought relief based on cancellation, which is legally inconsistent....

Court Disposition

Exceptions upheld in respect of the written agreement and claim thirteen; amendment granted in respect of the oral agreement; particulars of claim struck out; plaintiff granted leave to amend within ten days; costs awarded against plaintiff.

Orders

  • The amendment in respect of claims one to twelve in relation to the written agreement is refused and the exception upheld.
  • The amendment in respect of claims one to twelve in relation to the oral agreement is granted.