Southern Star Organisation (Pty) Ltd v Thornburn Security Solutions (Pty) Ltd (1027/04) [2007] ZAECHC 99 (15 November 2007)

Southern Star Organisation (Pty) Ltd v Thornburn Security Solutions (Pty) Ltd (1027/04) [2007] ZAECHC 99 (15 November 2007)

The court held that the proposed amendment to the particulars of claim, which imports a tacit term into the written agreement, does not render the particulars of claim excipiable. The amendment clarifies that motor vehicles belonging to Delta or other manufacturers, held by the plaintiff in the ordinary course of business, are deemed assets of the plaintiff for the purposes of the security services agreement. The court found that the tacit term is consistent with the express terms of the agreement and its annexure, which detail the security services to be performed in respect of such vehicles. The court further held that the non-variation clause does not preclude the tacit term, as the...

Citation
[2007] ZAECHC 99
Parties
Plaintiff: Southern Star Organisation (Pty) Ltd; Defendant: Thornburn Security Solutions (Pty) Ltd
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
15 November 2007
Case Number
1027/04
Procedural Posture
Application to Amend / Opposed Application for Amendment of Particulars of Claim
Outcome
Application to amend particulars of claim granted; costs awarded to the plaintiff.
Judges
Dambuza
Legal Topics
Pleading Amendment, Tacit Terms, Contractual Interpretation, Security Services Agreement
Civil Procedure Commercial and Corporate Pleading Amendment Tacit Terms Contractual Interpretation Security Services Agreement

Case Brief

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Parties

Southern Star Organisation (Pty) Ltd

Plaintiff

Thornburn Security Solutions (Pty) Ltd

Defendant

Procedural Posture

Application to Amend / Opposed Application for Amendment of Particulars of Claim

Legal Issues

  1. 1 Whether the proposed amendment to the particulars of claim imports a tacit term into the written agreement between the parties.
  2. 2 Whether the proposed amendment renders the particulars of claim excipiable for lack of a cause of action or for being vague and embarrassing.
  3. 3 Whether the tacit term is at variance with, conflicts with, or supplements the express terms of the agreement, particularly clause 17 and Annexure A.

Ratio Decidendi

The court held that the proposed amendment to the particulars of claim, which imports a tacit term into the written agreement, does not render the particulars of claim excipiable. The amendment clarifies that motor vehicles belonging to Delta or other manufacturers, held by the plaintiff in the ordinary course of business, are deemed assets of the plaintiff for the purposes of the security services agreement. The court found that the tacit term is consistent with the express terms of the agreement and its annexure, which detail the security services to be performed in respect of such vehicles. The court further held that the non-variation clause does not preclude the tacit term, as the...

Court Disposition

Application to amend particulars of claim granted; costs awarded to the plaintiff.

Orders

  • The particulars of claim are amended as set out in the judgment, including the insertion of a new paragraph 4(bis) clarifying the tacit term regarding assets.
  • The defendant shall pay the costs of the application.