Exception raised to particulars of claim cannot succeed where the cause of action disclosed

High Court of South Africa, Western Cape Division: In this case before a Single Judge Bench of K M Savage, J., defendant had raised an exception to the particulars of claim of plaintiff that the particulars failed to show cause of action.

Plaintiff and defendant had entered into a written master sale agreement incorporating a number of conditions of sale. The reason why defendant alleged no cause of action was that no agreement existed since plaintiff failed to confirm the verbal order in writing due to which defendant was not obligated to confirm the purchase price of the goods. Thus, the defendant could have repudiated the agreement and sell the goods to a third party. Whereas plaintiff submitted that the defendant had failed o discharge the onus to show the absence of cause of action in the particulars of claim.

High Court referred the case of Trustees, Bus Industry Restructuring Fund v. Break Through Investments CC, 2008 (1) SA 67 (SCA) where it was made clear that it is for the excipient to show that the plaintiff’s claim is bad in law which defendant failed to show. The Court was satisfied that the plaintiff had disclosed cause of action and therefore, the exception raised cannot succeed. [Gelvenor Consolidated Fabrics (Pty) Ltd. v. Winelands Textiles (Pty) Ltd., Case no. 5010 of 2018, decided on 06-11-2018]

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