REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA,
GAUTENG LOCAL DIVISION, JOHANNESBURG

          CASE NO:  2018/22545

(1)	REPORTABLE: YES / NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED. 

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                   DATE			        SIGNATURE

In the matter between:

ANDILE ABNER NGCABA						    Plaintiff

and

DIMENSION DATA MIDDLE EAST & AFRICA (PTY) LTD      First Defendant

NIPPON TELEGRAPH & TELEPHONE CORPORATION   Second Defendant

JEREMY ORD                                                                          Third Defendant

J U D G M E N T

LAMONT J:
[1]	This is an application brought by the applicant to amend its particulars of claim. The parties are referred to herein as they are referred in the action.
[2]	The plaintiff instituted action against the defendants claiming payment of money allegedly due to him. There was an objection to the particulars of claim as framed. The plaintiff has reformulated the particulars and seeks an amendment to them by way of deleting them as they currently stand and substituting them with the allegations contained within the proposed amendment. The plaintiff’s formulation currently separates the particulars of claim into separate and distinct segments; the parties, the general background, claim 1, claim 2 and claim 3. The formulation of claims 2 and 3 is non-contentious. The defendant objects to the formulation of claim 1 on the basis that to allow the claim would be to allow the plaintiff to introduce an excipiable cause of action.
[3]	The purpose of pleading is to define the legal issues between the parties and allege the essential facts upon which reliance will be placed at the trial. The facts upon which reliance will be placed must be admissible facts. A party is not permitted to seek to establish a legal issue which it cannot establish at the time if there are no admissible facts to establish it. The reason for this is that a plaintiff is not entitled to rely upon a legal issue which cannot not be triable.
[4]	In cases where the grounds of objection to an amendment are in the nature of an exception the application for leave to amend should be dealt with as if it were an exception.
[5]	In the present matter the plaintiff relies on an oral contract. The defendants submit that evidence to establish the oral contract will be inadmissible as such evidence is precluded by the existence and terms of a written contract which the plaintiff has referred to in the background section of the proposed particulars.
[6]	The existence of the written contract is material to the admissibility of evidence of the oral contract. See for example KPMG Chartered Accountants SA v Securefin Limited and Another 2009 [4] SA 399 [SCA]; ABSA Technology Finance Solutions [Pty] Limited v Michael’s Bid A House CC and Another 2013 (3) SA 496 SCA at paragraph 21.
[7]	The existence of terms within the written contract is material to the admissibility of the terms of an oral contract concluded by the parties at variance with or in conflict with the writing. See for example SA Sentrale Graanmaatskappy KO-OP Bpk v Shifren 1964 [4] SA 760 [A].
[8]	The plaintiff’s allegations in claim 1, standing alone, make out a case for the relief claimed in claim 1. If these allegations are considered in isolation claim 1 is not excipiable.
[9]	In the proposed amendment to claim 1 the plaintiff alleges that:-
	1.	On September 2005 Mr. Dawson acting in his representative capacity as the chief executive officer of the first defendant, “gave the oral undertaking or assurance to the plaintiff to the effect that the plaintiff would always and was always intended to be compensated or remunerated in a manner which was either equal to or better than other senior executives in the employ of the first defendant, including his white peers”.
	2.	The plaintiff accepted the undertaking or assurance.
	3.	The first defendant breached the undertaking or assurance by paying other senior executives more than the plaintiff “the shortfall”.
	4.	“The shortfall” was made up of unpaid bonuses known as the long term incentive payment scheme and the share appreciation rights scheme and a once off bonus in respect of the acquisition deal by the second defendant.
	5.	The plaintiff was equally entitled to the financial reward represented by the shortfall and had not been paid it, hence had suffered damages.
[10]	The plaintiff in the background section of the proposed particulars of claim alleges that on or about 29th of March 2004 the plaintiff and first defendant concluded a written employment agreement in terms of which the plaintiff was appointed “to the ostensibly most senior position of executive chairman of the first defendant”. The plaintiff attaches the service agreement as an annexure POC1. 
[11]	Clause 8 of that agreement deals with the remuneration and benefits payable to the plaintiff by the first defendant in respect of the plaintiff’s employment with the first defendant and provides that the plaintiff’s gross cost to the first defendant would be:-
1.	“An amount determined by the Board [or the sub-committee of the Board] and agreed with the [plaintiff]”.
2.	Comprised of “a cash component including a monthly motor vehicle allowance and contribution by the [first defendant] to the Dimension Data Provident Fund, Group Life and Disability Insurance and Medical Aid.”
3.	Payment “for participation in such Share Incentive Schemes and Bonus Schemes as the Remuneration Committee of the [first defendant] may decide, provided that, subject to the achievement of all the performance criteria, gates and rules applicable to the [plaintiff’s] bonus the annual amount due to the [plaintiff] from all Bonus Schemes shall not be less that R2 million.”
[12]	Clause 21 of the agreement provides that:-	
1.	the agreement  “may only be modified by the written agreement of the parties.”
2.	the first defendant “agrees and acknowledges that his only rights and remedies in relation to any representation warranty or undertaking made or given in connection with this Agreement (unless such representation, warranty or undertaking was made fraudulently) shall be for breach of the terms of this Agreement to the exclusion of all other rights and remedies (including those in tort or arising under a statute).”
[13]	The submission of the defendants is that the plaintiff having elected to incorporate the provisions of the writing in the particulars of claim must deal with the impact of such writing on his allegations concerning the oral contract in his particulars of claim. 
[14]	There is no dispute between the parties that the provisions of the writing save in respect at least of matters concerning fraud and constitutionality affect the admissibility of evidence regarding the oral contract. (See for example Brisley vs Drotsky 2002 [4] SA 1 [SCA] and Barkhuizen v Napier 2007 (5) SA 323 (CC). Unless an excuse allowing otherwise inadmissible evidence to be lead was pleaded the oral contract and its terms could not be established by admissible evidence. The real issue in this matter is whether or not the plaintiff is obliged to plead the excuse in its particulars.
[15]	The plaintiff’s claim against the defendants is set out completely and independently of the other claims in claim 1. The claim looked at alone constitutes a proper cause of action based on an oral contract, its breach and damages suffered. Insofar as background facts are set out they are not incorporated into claim 1 by reference. They constitute mere surplusage as the allegations in claim 1 seek enforcement of rights accruing under an oral contract. 
[16]	The type of pleading set out in claim 1 is permissible. See for example Graham v Ridley 1931 TPD 476, in which the following portion of a prior unreported decision was quoted with approval: 	
“One of the rights arising out of ownership is the right to possession; indeed Grotius (Introd.  2, 3, 4) says that ownership consists in the right to recover lost possession. Prima facie, therefore, proof that the appellant is owner and that respondent is in possession entitles the appellant to an order giving him possession, ie, to an order for ejectment. When an owner sues for ejectment an allegation in his declaration that he has granted the defendant a lease which is terminated is an unnecessary allegation and is merely a convenient way of anticipating the defendant's plea that the latter is in possession by virtue of a lease, which plea would call for a replication that the lease is terminated. It is the defendant and not the owner-plaintiff who relies on the lease, and if the lease itself is denied by the defendant, the present case, the allegation of the lease is surplusage “.
[17]	In the normal course it is for the defendant to raise the matter concerning why the oral contract alleged by the plaintiff is unenforceable or evidence concerning it is inadmissible. The plaintiff will then replicate and allege the matter entitling him to enforce the oral contract notwithstanding the writing. The plaintiff when it deals with the defendant’s defence to the oral contract sets up a different history as to why its claim is valid but not a new claim. See Graham v Ridley supra. The necessity to plead a defence in advance of the replication was discussed in a different context in Makate v Vodacom Pty Ltd 2016 (4) SA 121 (CC) 13 at paragraph 42 and 43 and paragraph 119-121. The judgment requires the matter to be raised in the replication. The concurring judgment sets out that it may be optional to place the matter in a replication. The judgment as a whole did not conclude that it is obligatory to do so.  
[18]	The submissions of the defendant in the present matter are dependent upon it being established that the plaintiff was obliged to plead the defence he proposed by way of raising in the particulars which in my view he is not. Accordingly in my view the plaintiff has set out a proposed claim which is not excipiable.  
 [19]	The matter is sufficiently complex and novel to entitle the defendants recover the costs of opposition.
[20]	I accordingly make the following order:-
1.	The plaintiff’s particulars of claim are amended in accordance with the notice of amendment dated 4 December 2018.
2.	The plaintiff is to pay the costs of the application including the defendants’ costs of opposition and the costs consequent upon the employ of senior counsel.	

                                            _______________________________________				        				              C G LAMONT
		                  JUDGE OF THE HIGH COURT OF SOUTH AFRICA
		                    GAUTENG LOCAL DIVISION, JOHANNESBURG

COUNSEL FOR APPLICANT			                   Adv. D. Mpofu SC
							        Adv. J. Peer
ATTORNEYS FOR APPLICANT	         Edward Nathan Sonnenberg Inc

COUNSEL FOR DEFENDANTS		                     Adv. J. Cane SC
								Adv. A. Michael
ATTORNEYS FOR DEFENDANTS	         Eversheds Sutherland Attorneys

DATE OF HEARING				                   25 February 2019
DATE OF JUDGMENT						12 March 2019