IN THE HIGH COURT OF SOUTH AFRICA 
GAUTENG DIVISION, PRETORIA
Case Number: 1505/13
Date: 30 May 2014
Not Reportable
Not of interest to other judges

In the matter between:
QUALITOR (PTY) LTD.............................................................................PLAINTIFF
and
EMFULENI RESORTS (PTY) LTD............................................................1st DEFENDANT/EXCIPIENT
AFRISUN GAUTENG (PTY) LTD............................................................2nd DEFENDANT/EXCIPIENT
SUN INTERNATIONAL (SOUTH AFRICA) LTD...................................3rd DEFENDANT/EXCIPIENT
TEEMANE (PTY) LTD...............................................................................4th DEFENDANT/EXCIPIENT
SUNWEST INTERNATIONAL (PTY) LTD...............................................5th DEFENDANT/EXCIPIENT
MEROPA LEISURE AND ENTERTAINMENT (PTY)............................6th DEFENDANT/EXCIPIENT LTD
AFRISUN KZN (PTY) LTD........................................................................7th DEFENDANT/EXCIPIENT
TRANSKEI SUN (PTY) LTD............................................................////.....8th DEFENDANT/EXCIPIENT
MANGAUNG SUN (PTY) LTD.................................................................9th DEFENDANT/EXCIPIENT
LESOTHO SUN (PTY) LTD.....................................................................10th DEFENDANT/EXCIPIENT
MANZANE ESTATES LTD.....................................................................11th DEFENDANT/EXCIPIENT
EZULWINI PROPERTIES (PTY) LTD..................................................12th DEFENDANT/EXCIPIENT
SUN INTERNATIONAL MANAGEMENT LIMITED.........................13th DEFENDANT/EXCIPIENT
(INCORPORATED IN BERMUDA)
Coram: HUGHES J
JUDGMENT
Delivered on: 30 May 2014 
Heard on: 18 March 2014
HUGHES J
1. This is an exception application raised by the defendant/excipient,  for convenience the parties will be cited as in the main action,  which is plaintiff and defendants.
2. After the exception was raised the plaintiff sought an amendment  of the particulars of claim. The defendant objected to the proposed  amendment and sought the dismissal of the amendments and the  exception to be upheld with costs.
3. From the outset it must be emphasised that the plaintiff's claim is  against thirteen (13) defendants which all form part of Sun  International Group of Companies ("SIGC"). The claims against the  first to the twelfth defendants are virtually the same and reliance is  on a written alternatively oral contract. The claim against the  thirteenth defendant relies on an issue of vindication of certain  property of the plaintiff provided to the thirteenth defendant and as  such differs from the other twelve claims. Likewise, the exceptions raised in the twelve claims though they are similar, they differ from the claim raised against the thirteenth defendant.
4. Under the circumstances I propose to deal with the claims as  follows, claims one to twelve will be dealt with as one, since they  are the similar, but for the amounts claimed, and the claim thirteen  on its own.
5. The sequence of events occurred as follows; the defendant raised  exceptions, two in respect of claims one to twelve and one in  respect of claim thirteen. The plaintiff proceeded to amend the  particulars of claim in an attempt to cure the complainants.  However the defendant objected to the proposed amendments that  the plaintiff sought to cure the complainants raised.
6. In respect of claims one to twelve the plaintiff instituted an action  against the defendants based on a written agreement alternatively  an oral agreement. The plaintiff claims that it is not in possession  of the written agreement entered into on 21 April 2006 attached  and as an annexure an unsigned written agreement. The plaintiff  contends that the terms of the written agreement were as appears  in the annexure attached. Alternatively, if I find that no written  agreement was concluded between the parties then the terms of  the oral agreement concluded by the parties, were exactly the  same as appears in the written agreement annexed. For purpose of  this application it is not necessary to go into the terms of the  agreement.
7. The case of the plaintiff set out in the particulars of claim is that  the defendant repudiated the written agreement when it purported  to cancel. According to the plaintiff the defendant could not cancel  and as such the piaintiff demanded performance. Due to the  defendants conduct the plaintiff sought payment from the  defendant of the "membership fee" to which the agreement alluded  to in respect of the Environmental Management Programme.
8. The exceptions raised were that the unsigned written agreement  annexed does not constitute the agreement entered into by the  parties. Further, as regards the oral agreement the written  agreement annexed as at clause 12 makes provision that the  agreement will only be considered valid and final between the  parties unless signed by the parties. Thus the defendant avers the  oral agreement would not have come into existence without the  written agreement being signed by the parties.
9. The amendment sought by the plaintiff to cure the complaints, was  to replace paragraph 5.3 of the particulars of claim which reads as  follow:
"An unsigned copy of their written agreement is attached hereto as annexure 'A' " with this paragraph:
"An unsigned template agreement representing a similar agreement with the same contents and terms and conditions as  contained in the agreement referred to entered into between the  parties, is attached hereto as annexure 'A'
10. The plaintiff submits that it specifically pleaded that it was not in  possession of the signed and original written agreement between  the parties and that the written agreement was in defendant  possession. The defendant's exception was that the agreement  that the plaintiff relies upon is a "generic application for  membership with no indication that it intended to be an agreement  between the plaintiff and the first defendant" and thus this written  document does not amount to an agreement between the parties.
11. The defendant further argued that by virtue of the plaintiff's intent  to amend the particulars of claim to cure the complaint the  exception raised was good in law and valid. On the other hand the  plaintiff submitted that the amendment was sought for the sake of  "proper housekeeping and semantics...to rectify the objection  insofar as it discloses a ground for exception."
12. After the amendment was sought by the plaintiff the defendant  objected to same on the basis that the propose amendment sought  by the plaintiff would render the particulars of claim non-compliant  with rule 18(6) of the Uniform Rules of court.
13. Rule 18(6) reads as follows:
“A party who in a pleading relies upon a contract shall state whether the contract is written or oral, and when, where and by  whom it was concluded, and if the contract is written a true copy  thereof or of the part relied on in the pleading shall be annexed  to the pleading."
14. It is noted that the exception and amendment pertain to the same  issue of the written agreement and alternatively the oral  agreement. In my view it is convenient to deal with both exception  and amendment.
15. With regards to compliance of the rule the plaintiff submitted that it  was sufficient that it had specifically pleaded that the written  agreement was not in its possession but in the defendant  possession and therefor the non-compliance is not of its own  volition. Further, that annexure 'A' attached is a true copy of the  relevant terms of the written agreement that the plaintiff relies  upon and thus plaintiff has complied with the portion of rule 18 (6) that states: "the part relied upon in the pleading shall be annexed to the pleading".
16. The plaintiff referred to the case of Dass and Others NNO v  Lowewest Trading (Pty) Ltd 2011 (1) SA 48 (KZN) at 53  paragraph (15) where it highlights that substantial compliance of  the rules as long as there is no prejudice to the other party should  be condoned.
17. On the other hand the defendant referred to the case of Moosa  and Others NNO v Hassam 2010 (2) SA 410 (KZP) at  paragraph (20) where Swain J as he then was stated:
"It is therefore clear that a party who bases its cause of action upon a written agreement should obtain a true copy of the  agreement before advancing its claim. However, this is not to  say that a failure to annex a written agreement relied upon may  never be condoned in terms of rule 27(3)".
18.In the position that the plaintiff found itself, where it relied on a  written agreement that was not in its possession, it had the option  of rule 27(3) which reads as follows:
"The court may, on good cause shown, condone any non-compliance with these rules".
19. The plaintiff to its own detriment did not seek condonation from the  court as is envisaged in rule 27(3) and as such resulted in none  compliance with rule 18(6). Plaintiff argued that the court could  condone the non-compliance mero motu, this is in line with the  decision of Dass mentioned above. From a reading of this case the not prejudicial to the other parties. In this matter it is clearly prejudicial for the defendant as the defendant is unable to plead to  the particulars of claim of the plaintiff. In addition the argument of  the plaintiff that the defendant is well aware that there was a  written agreement as it is evident from the termination  correspondence to my mind the plaintiff is merely grasping at  straws. The termination letters make mention of "any and all  agreements...", thus in my view this is further prejudice to the  defendant as in these circumstance the defendant would not have  an idea of the agreement relied upon and in return which case it  needed to meet.
20. The argument that a portion of the written document as annexed,  that the plaintiff place reliance upon, cannot stand in the face of  the fact that the agreement annexed was not that signed by the  parties but merely a template. The plaintiff also made much of the  best evidence rule which in my view becomes operative at the trial  stage. The plaintiff places reliance on the written agreement to  substantiate its claim in furtherance of its cause of action. If this  document is not available during the pleadings stage then  condonation should be sought in terms of rule 27(3). Once  condonation is granted then at trial the plaintiff may use the  template as the best evidence of the non-existent written  agreement.
21. Turning to deal with the agreement having been an oral agreement  along the same terms of the written agreement annexed as 'A', it is  clear on an interpretation of clause 12 of the written agreement  that no final or valid agreement comes into effect unless signed by  the parties. The proposed amendment sought by the plaintiff to  exclude clause 12 from the oral agreement attempts to solves the  problem of the oral agreement. There need not be signatures of  the parties for the oral agreement to be relied upon to validate the oral agreement. The defendant has correctly made this concession and thus the amendment will sufficiently cure the complainant as  regards the oral agreement.
22. I now turn to deal with claim thirteen. It would seem that the  plaintiff provided the defendant with collateral material that was to  be returned on cancellation of any of the agreements between the  plaintiff and any of the companies forming part of the Sun  International Group of Companies ("SIGC").
23. In this claim the plaintiff pleaded that the defendants purported to  cancel the agreements by the companies of SIGC and as such the  return of the material arises from this cancellation.
24. The defendant argued that this is a vindicatory action based on the  plaintiff's ownership of the goods. The defendant raised an  exception to the effect that the plaintiff having conceded that the  defendant had the right to have the material, for the material to be  returned to the plaintiff, it would be necessary for plaintiff to plead  that the agreements had been cancelled. The current situation is in  fact the opposite as the plaintiff in its particulars of claim, pleads  that the contracts are still in existence and sought performance by  the defendant.
25. Yet again the plaintiff after receipt of the exception, proposed to  amend clause 13. In dealing with the exception the plaintiff  proposed to amend clause 13 making it a provisional claim based  on the court finding that the agreements were in fact cancelled and  if so clause 13 to become operative.
26. The proposed amendment by the plaintiff makes the claim  conditional upon the finding that the agreements are cancelled. In the same vein the plaintiff pleads that the agreements are in existence. How can one come to a conclusion of cancellation, if on  the one hand the plaintiff states that the agreements are in  existence and on the other hand states that the defendants have  purportedly cancelled the agreements.
27. The defendant argued that in the circumstances the pleadings will  remain excipiable as long as the claim is premised on a conditional  claim of cancellation, even with the proposed amendment sought..  The plaintiff reliance of the cancellation having taken place is the  letters of termination that it received from the defendants and even-in the face of these letters the plaintiff persists that the contracts  subsisted.
28. In advancing the plaintiff's case in respect of claim thirteen the  case of CONSOL Ltd t/a Consol Glass v Twee Jonge Gezellen  (Pty) Ltd and Another (2) 2005 (6) SA (23) (C), the headnote, was referred to which I set out below:
"When one party to a contract commits a breach of a material term, the other party is faced with an election. He may cancel  the contract or he may insist upon due performance by the party  in breach. The remedies available to the innocent party are  inconsistent. The choice of one necessarily excludes the other,  or, as it is said, he cannot both approbate and reprobate. Once  he has elected to pursue one remedy, he is bound by his election  and cannot resile from it without the consent of the other party.  Three exceptions have been admitted to the principle of election,  expressing circumstances under which the innocent party may  pursue a remedy which is incompatible with his election. They  are the following: (1) Firstly, the innocent party may adopt the  so-caiied 'double-barrelled’ procedure of claiming enforcement of a contract, with an alternative claim for cancellation and damages. However, this is not a true instance of the innocent  party pursuing inconsistent remedies, because the claim for  cancellation only arises where the defendant, despite an order  given pursuant to the main claim for enforcement, persists in his  breach of the contract. (2) Secondly, the innocent party may  claim cancellation or enforcement of the contract as alternative  remedies, based upon different factual averments. Effectively, it  appears, this exception amounts to the proposition that the strict  operation of the principle of election is relaxed where the  innocent party couples his election with a qualification or  condition. (3) Finally, the innocent party may claim enforcement  of the contract if, in initially seeking damages upon cancellation,  he proceeded upon the mistaken belief that the defendant had  repudiated the contract."
29. Taking into account the dicta above and the circumstance of this  matter my view is that none of the exceptional circumstances  mentioned above are applicable and as such no cause of action has  been made out for the plaintiff's entitlement to claim thirteen since  there is no cancellation as is required by the agreement and the  fact that the plaintiff seeks due performance by the defendants.  Consequently this amendment must fail and the exception upheld  in respect of claim thirteen.
30. Accordingly I make the following order;
30.1 The amendment in respect of claims one to twelve in  relation to the written agreement is refused and the  exception upheld;
30.2 The amendment in respect of claims one to twelve in  relation to the oral agreement is granted;
30.3 The amendment in respect of claim thirteen is refused and  the exception is upheld;
30.4 The plaintiff is ordered to pay the costs;
30.5 The particulars of claim of the plaintiff are struck out and  the plaintiff is granted leave to deliver amended particulars  of claim within 10 days of this order.
W. Hughes 
Judge of the High Court
Delivered on: 30 May 2014 
Heard on: 18 March 2014
Attorney for the Excipient/Defendant:
KNOWLES HUSAIN LINDSAY INC
c/o FRIEDLAND HART SOLOMAN & NICOLSON
Suite 301, Block 4
Monument Office Park
79 Steenbok Avenue
Monument Park
PRETORIA
Tel: 012 424 0200
Ref: TRUDIE VAN STRAATEN/nm/313183
Attorney for the Plaintiff: 
MARUIS VILJOEN ATT
9 Black Cap Street
Wierda Glen  Centurion
Tel: 012 653 6441
Ref: MV1541/10  
c/o BADENHORST ATT  
643 Avril Street  
Eloffsdal  
Pretoria