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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 2018/29738

DATE: 7^TH JUNE 2019

In the matter between:

FINANCIAL STUDIO (PTY) LIMITED                                                                        Plaintiff

- and -

OAKSURE FINANCIAL SERVICES (PTY) LIMITED                                            Defendant

 

JUDGMENT

 

Adams J:

[1]. The defendant raises an exception to the plaintiff's particulars of claim on the ground that it is vague and embarrassing or that it lacks averments necessary to sustain a cause of action. The particulars upon which the exception was based were set out in 'clear and concise terms' as required by Uniform Rule of Court 23 (3). In a nutshell, the defendant takes exception to the fact that the plaintiff, whose cause of action is clearly based in contract, in circumstances where the contract had been cancelled, claims specific performance from the defendant notwithstanding termination of the contract. A party's obligations to perform pursuant to a contract, so it is contended by the defendant, end when the contract is cancelled. Closely linked to this objection to the plaintiff's particulars of claim is the ground of exception that the plaintiff, according to the defendant, claims 'special damages', but does not make the necessary allegations in support of a claim for special contractual damages.

[2]. The important part of the plaintiff's cause of action in its particulars of claim is formulated as follows:

'8. Properly interpreted, the agreement provided that the Comm Fees and Broker Fees payable by the defendant to the plaintiff would be payable for so long as the policies concluded consequent upon the a lead provided by the plaintiff remained in force or were renewed and in terms of which the premiums were paid, alternatively, this constituted a tacit term of the agreement.

…

14. Consequent upon the termination of the agreement, the defendant was obliged to continue to pay the Comm Fees and Broker Fees to the plaintiff in respect of those policies which were concluded as a result of the leads provided by the plaintiff to the defendant for so long as such policies were in force or were renewed and in terms of which the premiums were paid.

15. The defendant has breached the agreement in that it has failed to

15.1 provide the report to the plaintiff in relation to those policies which were in force or which were renewed and in terms of which the premiums were paid;

15.2 make payment to the plaintiff of the Comm Fees and Broker Fees pursuant to the provision of the report and the values reflected therein.'

[3]. As I indicated above, the defendant raised an exception on the grounds that the particulars of claim are vague and embarrassing or lack averments necessary to sustain a cause of action.

[4]. Mr Govender, Counsel for the plaintiff, submitted that the defendant's exception arises from a misreading on the part of the defendant of the plaintiff's particulars of claim and its cause of action. Plaintiff's cause of action is founded on the contract concluded between the parties and is for specific performance of a surviving clause in the contract, which was cancelled with effect from the 30th of June 2016. Plaintiff's claim, so Mr Govender submitted, is not a claim for contractual damages arising from an unlawful cancellation of the agreement. The plaintiff accepts the cancellation of the agreement, but in its view it is entitled to insist on payment pursuant to a clause in the contract because a claim ex contractu may survive cancellation of the contract if, prior to the cancellation, it was accrued, due and enforceable as a cause of action independent of any executory part of the contract.

[5]. I find myself in agreement with the submissions made by Mr Govender. It is clear that certain rights from a contract can survive cancellation and that a reciprocal obligation cannot be maintained if its counter - obligation is extinguished. In that regard see: Walker's Fruit Farm v Sumner, 1930 TPD 394. As pointed out by the authors of Contract: General Principles, Fifth Edition, Van Huyssteen, Lubbe and Reinecke, the principle from the Walker case may also be applicable if performance is divisible into separate parts even though the contract cannot be divided. If the performance is in fact divisible and distinct rights are therefore created, such distinct rights can only be enforced after cancellation if the rights stand separately from the rights that have been extinguished or undone. Of particular importance is the question whether the parties intended that the provision that gave rise to the particular right should be in force after cancellation. The point is this: the case pleaded by the plaintiff in its particulars of claim supports a sustainable cause of action based on specific performance of a surviving clause in a cancelled contract.

[6]. In order to succeed an excipient has the duty to persuade the court that upon every interpretation which the pleading in question can reasonably bear, no cause of action is disclosed. Failing this, the exception ought not to be upheld. An exception should be dealt with sensibly and not in an over - technical manner. See: Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards Authority SA, 2006 (1) SA 461 (SCA) at 465H.

[7]. In casu, the defendant has not persuaded me that no cause of action has been disclosed by the plaintiff's particulars of the claim. I also cannot find that the particulars are vague and embarrassing. For the reasons stated above, I am of the view that the particulars of plaintiff's claim do contain averments necessary to sustain a cause of action for specific performance based on a surviving clause.

[8]. The exception should therefore fail.

 

Order

Accordingly, I make the following order:

1. The defendant's exception is dismissed with cost.

2. The defendant shall pay the plaintiff's cost of the exception.

 

 

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LR ADAMS

Judge of the High Court

Gauteng Local Division, Johannesburg

 

HEARD ON: 4^th June 2019

JUDGMENT DATE: 7^th June 2019

FOR THE PLAINTIFF: Adv A Govender

INSTRUCTED BY: Norton Rose Fulbright SA Incorporated

FOR THE DEFENDANT: Adv B Gradidge

INSTRUCTED BY: Nadeem Mohamed Attorneys

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