Zamani Security Services (Pty) Ltd v Indiza Airport Management (Pty) Ltd t/a Indiza Airport Aviation (D2951/2024) [2024] ZAKZDHC 104 (11 December 2024)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Kwazulu-Natal High Court, Durban South Africa: Kwazulu-Natal High Court, Durban You are here: SAFLII >> Databases >> South Africa: Kwazulu-Natal High Court, Durban >> 2024 >> [2024] ZAKZDHC 104 | Noteup | LawCite sino index ## Zamani Security Services (Pty) Ltd v Indiza Airport Management (Pty) Ltd t/a Indiza Airport Aviation (D2951/2024) [2024] ZAKZDHC 104 (11 December 2024) Zamani Security Services (Pty) Ltd v Indiza Airport Management (Pty) Ltd t/a Indiza Airport Aviation (D2951/2024) [2024] ZAKZDHC 104 (11 December 2024) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAKZDHC/Data/2024_104.html sino date 11 December 2024 IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL LOCAL DIVISION, DURBAN Case no.: D2951/2024 In the matter between: ZAMANI SECURITY SERVICES (PTY) LTD                                           PLAINTIFF and INDIZA AIRPORT MANAGEMENT (PTY) LTD               DEFENDANT/EXCIPIENT t/a INDIZA AIRPORT AVIATION ORDER The following orders shall issue: 1.     The exception is dismissed. 2.     The defendant/excipient shall pay the plaintiff’s costs occasioned by the application on Scale B, such costs to include the costs of the employment of senior counsel. JUDGMENT BRAMDHEW AJ Introduction and background [1]        This is an exception issued by the defendant on the ground that the plaintiff’s particulars of claim lacks averments necessary to sustain a cause of action. [2]        The plaintiff instituted proceedings against the defendant in the sum of R206,705.29 in respect of unpaid invoices for guarding services rendered by the plaintiff. [3]        The plaintiff pleaded that: 3.1.     on or about 25 August 2020, the parties entered into a written agreement in terms of which the plaintiff would deploy guards to perform guarding services at premises identified by the defendant. 3.2.     the agreement commenced on 1 September 2020 and would continue for an initial term of two years, renewable on a yearly basis. 3.3.     the plaintiff would provide guards and equipment at specified rates and the defendant would pay for the plaintiff’s services at the agreed rates upon presentation of an invoice/s. 3.4.     between May 2021 and March 2023, the plaintiff rendered guarding services at premises identified by the defendant, being Richards Bay and Virginia. 3.5.     the defendant failed to pay the following invoices: 3.5.1.           IN103368 rendered on 19 May 2021 in the sum of R31,050.00 for Richards Bay for the period 16 May 2021 to 31 May 2021; 3.5.2.           INV105295 rendered on 18 April 2023 in the sum of R70,218.43; 3.5.3.           IN105262 rendered on 15 March 2023 in the sum of R70,218.43, wherein the defendant effected part payment in the sum of R35,000.00; and 3.5.4.           INV105389 rendered on 17 May 2023 in the sum of R70,218.43. 3.6. the agreement ended at the instance of the defendant as a consequence of the uMhlatuze and eThekwini Municipalities terminating the defendant’s rights to occupy or operate its business at Richards Bay and Virginia, and the defendant notifying the plaintiff that it no longer needed guarding services. 3.7. the plaintiff accepted this and discontinued rendering guarding services at Richards Bay on 1 June 2021 and at Virginia at 1 June 2023. [4]  The defendant delivered an exception on the basis that the plaintiff’s particulars of claim lacked averments which are necessary to sustain a cause of action, which exception stated that: 4.1.     In terms of the written agreement, the plaintiff failed to plead compliance with clause 7.5 of the agreement which states: “ 7.5. In the event of the CLIENT being in breach of any of the terms or conditions of this agreement and failing to remedy such breach within 14 (fourteen) business days after receiving written notice by ZS calling upon the CLIENT to remedy such breach, the ZS may, without prejudice to any other rights it may have in terms of this agreement or which are available either at common or statutory law: 7.5.1. Cancel this agreement and institute an action for damages which it may have suffered as a result of the said breach; or 7.5.2. Alternatively, to require specific performance in terms of the condition or term, which was breached and claim any damages suffered. ” 4.2.     In the absence of pleading compliance with clause 7.5, the plaintiff has failed to disclose a cause of action as its action would require compliance with such conditions of the agreement prior to pursuing the action. [5]        In the agreement, the plaintiff is denoted as “ZS” and the defendant as the “CLIENT”. [6]        The defendant contends that the agreement contained a specified lex commissoria , which must be complied with in order for the plaintiff to cancel the agreement. [7]        The plaintiff contends that the defendant repudiated the agreement, which repudiation the plaintiff accepted. [8]        Accordingly, the issues for determination are 8.1.     if the defendant repudiated the agreement, and such repudiation was accepted, can the defendant rely on a term of that agreement. 8.2.     was the plaintiff obliged to comply with clause 7.5 of the agreement. 8.3.     do the particulars of claim sustain a cause of action. The legal framework and its application to the facts [9] Upon acceptance of a repudiation, the innocent party is entitled to treat the agreement as cancelled and claim damages for breach.  The party who repudiated cannot rely on the terms of the agreement after the other party has accepted the repudiation.  Acceptance of a repudiation terminates the contract, relieving both parties of their obligations under the contract [1] [10] A lex commissoria is a contractual provision allowing cancellation upon breach [2] . The defendant contends that clause 7.5 of the agreement constitutes such a provision and that the plaintiff was obliged to comply with this provision. However, this clause applies only where the agreement is in effect and the innocent party seeks to cancel it in terms of its conditions.  The defendant contends that the plaintiff was not entitled to cancel the agreement without first complying with the notice contemplated in the agreement. [11]    The plaintiff has pleaded that the agreement ‘demised’ at the instance of the defendant when it notified the plaintiff that it no longer had the need for the guarding services at Richards Bay as at 1 June 2021 and Virginia as at 1 June 2023. [12]    Mr Mizrachi , appearing for the defendant, submitted that the allegation of an accepted repudiation is unsustainable as the plaintiff could not have accepted the repudiation, yet continue providing services at another site. [13]    The agreement relied upon does not identify the premises at which services are to be rendered.  It is not contended by the defendant that services were not rendered at Richards Bay and at Virginia.  It appears that the agreement would apply to any premises designated by the defendant. [14] In Firmpulse Trading CC and Another v Kleynhans and Another [3] , the court summarised the test for exceptions as follows: “ 1. In order for an exception to succeed, the excipient must establish that the pleading is excipiable on every interpretation that can reasonably be attached to it… 2. A charitable test is used on exception, especially in deciding whether a cause of action is established, and the pleader is entitled to a benevolent interpretation… 3. The Court should not look at a pleading “with a magnifying glass of too high power”… 4. The pleadings must be read as a whole; no paragraph can be read in isolation…” [15] In McKenzie v Farmers’ Co-operative Meat Industries Ltd [4] ‘cause of action’ was defined as: ‘… every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved .’ [16] In McKelvey v Cowan NO [5] , it was stated that: ‘ It is a first principle in dealing with matters of exception that, if evidence can be led which can disclose a cause of action alleged in the pleading, that particular pleading is not excipiable. A pleading is only excipiable on the basis that no possible evidence led on the pleading can disclose a cause of action .’ [17] Further, in Vermeulen v Goose Valley Investment (Pty) Ltd [6] , it was stated that: “ It is trite law that an exception that a cause of action is not disclosed by a pleading cannot succeed unless it is shown that ex facie the allegations made by a plaintiff and any document upon which his or her cause of action may be based, the claim is (not may be) bad in law. ” [18] When considering factual averments made by the plaintiff, at an exception stage, they must be accepted as being correct [7] , unless they are manifestly false [8] , which fact is not apparent from the pleadings. [19]    The defendant’s contention is that the repudiation could not have been accepted if the plaintiff continued rendering services at another premises. [20]    It appears that the defendant indicated that it no longer required the plaintiff’s services at Richards Bay as a 1 June 2021, however, continued using the plaintiff’s guarding services at Virginia until the alleged repudiation at 1 June 2023. [21]    Given that the defendant effected part payment of invoice IN105262, it is apparent, although not pleaded, that the agreement was renewed on 1 September 2022 on a yearly basis for services at Virginia.  Thereafter, the defendant indicated that it no longer required the plaintiff’s services at Virginia as at 1 June 2023, resulting in the defendant not requiring the plaintiff’s services at all.  This would constitute a repudiation of the agreement. [22]    All that needs to be established is whether the plaintiff’s claim sustains a cause of action. [23]    Considering the principles outlined above: 23.1.  I must accept the factual averments of a repudiation in the particulars of claim unless clearly false and untenable. There is nothing before me on which basis those averments can be deemed false or untenable. 23.2.  The defendant has failed to establish that the pleading is excipiable on every interpretation that can reasonably be attached to it.  The plaintiff contends that the defendant repudiated the agreement, which repudiation was accepted – these are facts which are sufficient to establish a cause of action. I am not called upon to determine the success of that cause of action.  As at 1 June 2023, the aforementioned invoices were outstanding. 23.3.  While the plaintiff’s particulars of claim may have certain imperfections, this does not render them excipiable, and I can see no reason why the defendant would not be able to plead to it. Conclusion [24]    The plaintiff’s particulars of claim do disclose a cause of action in the allegations that the defendant repudiated the agreement, which repudiation was accepted by the plaintiff.  The alleged facts, if proven, would establish a repudiation of the agreement, its acceptance, and thereby a termination of the agreement.  These allegations sustain a cause of action and would render compliance with clause 7.5 unnecessary.  The plaintiff was, therefore, not obliged to plead compliance with clause 7.5 of the agreement. [25]    I find that the plaintiff’s particulars of claim contain sufficient averments to sustain a cause of action and are thus not excipiable. [26]    Accordingly, there is no need for me to consider issue 2. Costs [27]    Mr Shapiro SC, for the plaintiff, and Mr Mizrachi contend that costs should be awarded on Scale B, with Mr Shapiro submitting that such costs should include the costs of senior counsel.  I am satisfied that the matter was of significant complexity to award costs on scale B and such costs should include the costs consequent upon the employment of senior counsel. Order [28]    The following orders shall issue: 1.     The exception is dismissed. 2.     The defendant/excipient shall pay the plaintiff’s costs occasioned by the application on Scale B, such costs to include the costs of the employment of senior counsel. BRAMDHEW AJ Case information Heard on: 7 November 2024 Judgment delivered: 11 December 2024 For the plaintiff: Mr Shapiro SC Instructed by: Woodhead Bigby Inc 92 Armstrong Avenue La Lucia Ref: AL/AC/MAT24660 E-mail: anul@woodhead.co.za For the defendant/excipient: Mr Mizrachi Instructed by: Thorpe and Hands Inc Unit 8 Northsands Centre 5 Forest Drive Umhlanga Rocks Ref: R Topping/afs/IND4.01 Email: robin@thorpeandhands.co.za [1] Datacolor International (Pty) Ltd v Intamerket (Pty) Ltd [2000] ZASCA 82 ; 2001 (2) SA 284 (SCA) [2] GPC Developments CC and Others v Uys (A71/2017) [2017] ZAWCHC 80 ; [2017] 4 All SA 14 (WCC) (15 August 2017) [3] (5115/2023) [2024] ZAFSHC 166 (27 May 2024) at paragraph 3 [4] 1922 AD 16 at 23 [5] 1980 (4) SA 525 (Z) at 526 [6] [2001] 3 All SA 350 (A) at para 7 [7] Living Hands (Pty) Ltd NO and Another v Ditz and Others 2013 (2) SA 368 (GSJ) [8] Naidoo and Another v The Dube Tradeport Corporation and Others 2022 (3) SA 390 at paragraph 18 sino noindex make_database footer start