104 AMLER'S PRECEDENTS OF PLEADINGS (b) Cancetation, with damages and/or restitution; alternatively if the contract was not properly cancelled but breached, damages. (©) Specific performance, with or without damages. (@) Specific performance, with or without damages, and, failing compliance with the ‘order within a prescribed period, cancellation, with or without damages (the so- called “double barrelled procedure’) ‘Mgrs v Advan [1952] 1 II SA 367 (C), 1952 (8) SA 121 (©) Custom Cin Cap (Pp) Lid» Shembe [1972] 3 All SA 489 (A), 1972 (3) SA 462 (A) Consol Ld 1/0 Consol Glass v Tae fnge Geli (ry) Led (2) (205) 4 AI|SA.517 (C), 2005 (6) SA 23 (©) Is not possible to claim performance and, in the alternative, rely on a prior cancel lation of the contract. These alternatives are inconsistent. As mentioned, the converse is possible, Sake v Raath 1956 (2) SA 160 (E) PRECEDENTS (Claim ~ for restitution, alternatively, damages 1. On [ate] at place], the parties concluded an oral agreement ia terms of which plainsif sold to defendant [description] motor vehicle [registration suber] for a purchase price of amount) 2 Tewasa term of the agreement that the purchase price was tobe pal on (date) and, shoul defendant fll to do so, plaintiff would be ented to cancel the contract without any prior demand. Defendant filed to pay the purchase price on due date and has not paid itsince. 4. Tn consequence, defendant isin breach of dhe agreement and plants ened to cancel the agreement, 5, On [date] at {place}, plans informed defendant that he terminated the agreement and demanded ren of tte motor vehicle, Defendant refuses to comply withthe demand, 6, The value ofthe motor vehicle is (amount) “The plant clams an order forthe return to plain of motor vehicle [deseripion}; eemative, for an order for te payment of {amount} Claim ~ for declaratory onder 1. On (date), the partes concluded a writen agreement of sale in terms of which plaintiff sold to deiendant a dwelling house situated at addres]. A copy of the agreement i a tached hereto and marked ‘A 2. In terms of (clause), plains was entitled to cancel the agreement in the eve lant breach of any term of the agreement Defendant breached the agreement in the following respects: (dei. 4. Plaintiff gave defendant due notice as required by [elause] but, even though [days] have ‘lapeed since the notice, defendant has failed to rectify defendants beach, 5. In the premises, plaintif was entitled to cancel the agreement, hich he did by notice to defendant dated (date; altomatee, plainilf hereby cancels the agreement, "The plaintif claims an order declaring the agreement, Annexure A’, 0 have been validly can- celle. of defend: Parties: Any pleading must identify and cite the partes to the contract relied on.PARr B: NOTES AND PRECEDENTS 305 Pleadings must state whether the contract was concluded by the par- tics themselves or by agents acting on their behalf. The identity of any agent or repre: sentative must be stated. Uniform rie 18(6) See AGENCY (@aRHBBrne place where the contract was concluded must be stated. Uniform rate 1866) BRB The date when the contract was concluded is required. ‘Uniform rule 18(6) (apse action on contract may be insted within the juricton where the lelendant resides ois. It may also be instituted where the contractual cause arose, ‘A contractual cause arises where (a) the contract was entered into; (b) the contract is ‘or was be performed, wholly or in part, or (c) the breach of contract upon which the plaintiff relies was committed ‘The plaintiff therefore has the choice of instituting action in any ofthese places. ‘Superior Courts Act 10 of 213 5 21 ‘See JURISDICTION Hugo» Wesels 1987 (3) SA 837 (A) Rabets Construction Co Ltd» Wills Bros (Py) L2d 1962 (4) SA 326 (A) 1A contract is the result of the acceptance of an offer, but its ‘generally unnecessary to plead the offer and its acceptance, and it may sulfice to plead the conclusion of the contract. IL may be necessary, however, to plead the offer and its acceptance when they are contained in different documents oF when they may be a matter of dispute. (CGE Ast Equipment Beis Bere » GKN Sarkey (Py) Li (1987) 8 AISA 519 (A), 1987 (1) SAH (A) p. 80 If reliance is placed on a tacit acceptance of an offer, itis necessary to allege the accept lance and the facts on which the party relies to substantiate that allegation. (log Groencaald 1970 (3) $A 90 (C) Conditional acceptance amounts to rejection of the offer, and not to conclusion of a contract, but may be a counteroffer. ‘Command Proton Sve (Gato) (Py) Lt ta Masi Sect w South Afican Past Office mtd (2013) 1AN1SA 266 (SCA), 2013 (2) SA 135 (SCA) If the type of contract requires compliance with statutory formalities, it ‘must appear ex facie the pleadings that those formalies have been complied with, {In the absence of a statute which prescribes writing signed by the parties or their authorised Tepresentatves as an essential requisite for the creation of & entractual obligation «an ‘Agreement between parties which satisies all the other requirements for contractal validity tl be held not to ve given rise to contractual obligations only there is a preexisting con Tract between the parties which prescribes compliance with a formality or formalities before & binding contract can come into existence Pilly and another v Shik and others (2008) 2 All SA 435 (SCA), 2009 (4) SA74 (SCA) pars 50, Parties may also provide for their own formalities for concluding their contract. If those formalities are not followed, no contract is formed. A condition that the effectiveness of an agreement depends on the execation of a written document must be alleged and, proved by the party relying on it. Woods » Was 1921 AD 308 Lambons (En) pk» BMW (Suid-Afrika) (Ems) Bpk [1997.8 AN1SA 527 (A), 1997 (4) SATA (A)106 Ames PRECEDENTS OF PLEADINGS Premier, Fre State vFrchom Be State (Py) Lid [2000] AIISA 247 (A), 2000 (4) SA.18, (sca) Boch Munitch (Py) Li» Govan Miki Manscipaly (2015) 4 All SA674 (GP) When reliance is placed on an expressly concluded contract, it is "unnecessary (0 state that the contract is an express contract; in the absence of another allegation, the contract is assumed to be express ‘Rotrts Constracion Co Ld v Dominion Eartworks (Pry) Lid 968 (8) SA 255 (A) Uniform rule 18(6) requires that the relevant pleading must allege whether the con: tract relied on was written or oral. Ifthe contract was written, a true copy of the part of iton which reliance is placed must be annexed. Vor Heslan (1982) 4 All $A 650 (0), 1982 (4) SA857 (0) When a plaintiff bases the cause of action on a document and annexes part of a docu: ment, the defendant is entitled to assume that the plaintiff will rely on the annexed portion only ‘Stems NO Standard Trading Co L4d (1955) 4 AILSA 77 (A), 1955 (8) SA 428 (A) p. 429 ‘The inability to attach a copy is not fatal asa point of plead:ng or of proving the con- tract and its terms by secondary evidence. ABSA Rank Lid» Zalet Twenty (Py) Lid 2014 (2) SA 119 (WCC) Failure to attach a copy is not fatal to the process, because the other party may atk for a copy if required or utlise rule 30. ass v Lasewest Trading (Py) Led 2011 (1) SA.48 (RZD) (Eee 4 ry wn intends ory ona tac contract mut plea that the cone ‘act is tact In the absence of such allegation, it will be assumed that the contract was expressly concluded, [BC Cherie and Sons CC» Lamé and Van Ble (2006) ZASCA 10, 2000 (4) SAT (SCA) para 8 When an express contract i alleged, the pleader may not lead evidence to prove a tacit ‘Rows »Bnginering Fabricators (Ems) Bk [1974] 8 AILSA 186 (A), 1974 (3) SA545 (A) (Caterham Car Sales & Concho Lid» Birkin Cars (Py) Lid( 1998} 8 AISA 175 (A), 1998 (8) 84988 (SCA) ‘One may plead a tacit contract as an alternative to an express contract. It is necessary to allege and prove unequivocal conduct that establishes on a balance of probabilities tha the parties intended to, and did in fact, tacitly contract on the terms alleged. It must be proved that there was agreement. In deciding whether a tacit con- tract was concluded, the law considers the conduct of both parties objectively and the circumstances of the case generally. RabertsConstrcton Co L1dw Dominion Ertan (Py) Led 1968 (8) SA 258 (A) Standard Bon of SA Led» Oca Commodities fue [1983] | AlISA.145 (A), 1988 (1) SA 276 (A) p. 22 ‘Miimann v Mma [1984] 1 All SA 940 (A), 1984 (8) SA 102 (A) pp. 128-124 Joa Melamed & Hurts v Cleland Eats (Pb) Lid 1984 (2) 8A 155 (A) "NBS Bonk Liv Cae Produce Co (Py) Ltd (2002) 2 All SA 22 (A), 2002 (1) SA 396 (sca) To avoid absolution, the plaintiff must produce evidence of the parties’ conduct that justifies a reasonable inference that the parties intended to and did indeed contract on the terms alleged ~ in other words, that there was in fact consensus ad idem amongst the parties. Gordon Lioyd Page & Assciatsv Rivera (2000) 4 AISA 24: (A), 2001 (1) SA.88 (SCA) ‘Staneays Trading 21 OC v Paarl land Trading 714 (Py) L1d(2017) 4All SA 56S (WOO) para 61PaRr B: NOTES AND PRECEDENTS 107 ‘Atacit contract may be inferred from the failure of a party to respond in circumstances that call for a response. “Benefit Cee Works Atmore 1927 TRD 524 ‘Metis v Firs Considated Haldngs (Pt) [1d [1982] 1 All SA 245 (A), 1982 (2) SA11 (plo eeepc cee nse cont er do Sears agrccmcnt must prove thatthe agreement was intended to be 2 contact = thats hat he ntenton was to ge niet Tegal ations. ‘Dihng Chrome Mins (ns) Bp Dr Gnas, Doane van Hand Nw oma] 2A a (4), 108 (8) SATA) Carmen ofthe Sa Goering Teriy of Roa Masog 1904 (1) SA.626 CT) os owes Map 2015] 4AILSAA17 (SCA), 2016 (1 SAB (SCA) fhe doctrine of quasimutual assent is an application of the reliance theory in cases of dissent. It enables the ‘contract asserter’ to contend that che “contract denier’ misled the asserter into the reasonable belief that the denier had assented to the contractual terms Van Hyssteon NO and anctherv Mita Investment and Holding Company (P3) Led [2017] ZASCA 84 para. 23 See MISTAKE, Reliance by a plaintiff on quasi-mmutual consent to meet a defendant's denial that itis a party to a contract amounts to confession and avoidance: the plaintiff concedes that, although itis unable to rely upon the signature to the agreement as proof of real con- Sensis, other facts justify the conclusion that the parties had reached consensus. Those facts must be raised in a replication to apprise the defendant of the defence and to plead further to it, necessary Constanta Graruerke BK v Snyman 1996 (4) SA 117 (W) p. 124T-] incon (Py) Led» Tras Hasgary ZRT [2018] ZASCA 35 para. 82 A party alleging a contract must allege and prove the terms (express or tacit) ofthe agreement on which reliance is placed. ‘MeWilioms » First Consliatod Holdings (Py) Le 1982] 1 AUSA 245 (A), 1989 (2) SAT w Baueshorst » Van Rensburg (1986) 4 All SA 417 (1), 1985 (2) $A 921 (Tp. 935 Eskom Holdings Ld v Gandy 2018 (4) SA 242 (KZP) Proof of the terms of the contract includes proof of the anterior question of whether the parties had the requisite animus contrahendi. ‘fica Star (Py) L2dw Donat (Py) Led (2002) 8 Al SA 369 (A), 2002 (4) SA 681 (SCA) para. 38 In the case of a written contract, the plaintiff must prove thatthe defendant agreed (0 its final form, and, ifthe plaintiff relies on the defendant's signature, the plaintff must prove that both parties signed the document in its completed “orm. ‘ea Sioaw Janos [1982] 1 All SA43 (A), 1982 (3) SA 205 (A) ‘The onus of proving the terms of the agreement may involve the proof of a negative ~ for example, that the partis did not agree on an additional term alleged by the de- fendant. Krsger» Mintzer [1940] 4 All SA 498 (A), 1949 (4) SA 821 (A) “Ts Kitehens (P)) Lev Naboom Spa (Bdms) Bpk [1976] 4 All SA 58 (A), 1976 (3) SA 470 (A) ‘The rule applies when the defendant alleges that a naturalia of the type of contract, ‘concluded was varied by agreement when the contract was entered into. The plaintiff ‘must prove the negative, ‘Stocks & Stacks (Py) Led 1] Daly © Sons (Py) Li 1979 (3) A754 (A)os, ANILER's PRECEDENTS OF PLEADINGS Robin» Gucrante ife Assurance Co Lad 1984] 2 ASA 422 (A), 1984 (4) SA558 (A) ps0 (Eanes rte te aries y operation ay ha ac rn a en Dressed prevision of the contact, derived from the common intention of the partes. {This intention is inferred from the express terms of the contract and from the sur- rounding circumstances Aled MeAlpne& So Py) dw TransvlProvinal Administration [1974] 9 All SA 497 (4), 19743) 3A506 (A) Daf Kk & Nagel (Py) Led 1990] 2 AISA 5 (A) 1980 (1) SA'822 (A) ‘Aled Medline So (Py) dw Tranroel Prins Adminstration [19774 All SA 262 1), 1977 (H SABIO CT) p. 327 ‘Avacit term may be actual of impiited. Ic is an actual term if both parties thought bout pertinent matter but cid not bother to express their agreement on the point. ‘The term is imputed i the parties would have agreed on such a matter if only they had thought about it "which they did not do becalse they overlooked a present fact oF fed 0 anticipate a future one” kins Vg [1494] 2 lL SA 349 (A), 1904 (8) 84.190 (A Ik is not competent for court to importa term based on ubuatu or Boma fides but not iimended by the parties Roacr OC ls Supermare OC 2018 (8) $A76 (SCA) {A party intending to rely om a tact teem may have to disprose the allegation that an expres agreement was reached on the axpect covered by the alleged tacit term. ‘Nel v Nest Motors (dns) Bp 1961) 2 All SA 6 (A), 198 (1) SA 582 (A) abot Corton Co Li Denn arts (Py) id 1858 (3) SA 25 (8) “Hawa Dring» Dans Barker rt (2001) | A'S G18 (N), 2001 (4) SA 181 8) A pany seeking to place a construction on a document that differs from the docu men’s pina face meaning must plead the admissible circumstances relied on for this ‘Sect Commaril de Mat Achomann [1981] 2 ASA 289 (A), 181 (3) SA422 (A) Ikis not necessary, however, to plead reliance on the matrix ofthe contract when the meaning ofthe document is uncertain or ambiguous or when the other party contends that the document bears meaning other than ts prima face meaning, The court must be satisfied that there is uncertainty about or ambiguity in the proper construction of the contract “Dorman Long Swan Hunt (Py Ltd v Karis Vie id (1984) 8 AISA 542 (C), 1988 (2) SA462 (0) p47 “These authorities did not refer to Uniform rule 18(7), which states tha itis not neces sary to state the circumstances from which an implied term may be inferred The rule relates presumably not to ‘implied’ but tacit’ terms Bat sce Bewideroutv Oto 1996 (3) SA 339 (W) p. 383 [Acthe exception stage the testis whether the tacit term could reasonably be implied. Tani Vara SA v Mas is Py) Ld 1952] «ASA 32 (A), 1952 (2) SAB (A) pss) ‘Paes Wardousng and Sales CC» Basin nssionts OC (2000) 2 AILSA 266 (E), 200 (3) $4 853 8) ‘A.acit term may not be read into a unilateral document (suchas an offer) unless sur rounding cieumatances are pleaded and proved Malate Mor Vee Adams Pond Thabde (1994) 2A SA 207 (N), o10(%) I a contract required a close working relagonship between the parties, commercial reality would suggest an intention not to be bound in perpetuity In such cass a tact term allowing for termination on reasonable notice would be imported inthe interests of commercial efficacy. 904 (2) SAPART B: NOTES AND PRECEDENTS 109 Amalgomated Borage Industries Lid Rond Viste Whalals [2008] 4 All SA95 (SCA), 2004 (1) SA538 (SCA) (alt © (Py) Lad» Zu (2006) 4 AILSA 417 (SCA), 2008 (1) SA 451 (SCA) Plastem Py) Lid» Nippon Afica Chemicals (Py id (2014) 4 AILSA 12 (SCA), 2014 (5) SA 287 (SCA) A party who intends to rely on a term implied by law must plead the “implied term since the relief sought will depend on it, However, itis not necessary to allege facts giving rise to the term, because its a question of law whether the term is to ‘be implied. ‘Site Hat! (Ems) Bp v SA Yer & Staal Industrie Kop Bp 1987 (2) SA 952 (A) pp 948-849) Exemption clauses are not construed in a manner different from Feel proions Hever cours are or should be, way of contact! exclusions because they deprive parties of rights they would otherwise have had at com- ‘mon haw, The fact that an exchision clause limits or ousls common aw rights should make a court consider with great care the meaning of the clause, especially iit is very general in its application. ‘Durban's Water Wondortand (Pty) Ltd v Botha (1999) 1 AM|SAL1 (A), 1999 (1) SA 982 (sca) Von der Westhuzon v Amal (2002) 4 AILSA 831 (SCA), 2002 (6) SA 458 (SCA) Buy Hipsch Growp (Py) Ltd v Chicenland (Py) Led (2011) SALI SA 362 (SCA), 2011 (4) SA 276 (SCA) erms which in terms of the parol evidence rule eannot be proved may not be pleaded unless rectification of the contract is sought. ‘Thiet v Krouhanp [1967] 8 AILSA 296 (1), 1967 (3) SA219 (T) ‘Tesoen CC-v SA Bank of Athens (1999) 4 AILSA $96 (A), 2000 (1) SA 268 (A) (GERBBTE 1° « docament was intended to provide a complete memorial of a jural ‘act, extrinsic evidence may not contradict, add to or modify its meaning (the integra- tion or parol evidence rule) KPMG Charters Accoondentsv Secarefin Lu [2000] 2 All SA 523 (SCA), 2009 (4) SA 390 (sca) AS Corporation Limite v Bf and enater (2016) ZASCA MAL Interpretation is a mater of law and not of fac; i is accordingly a matter for the court and not for witnesses ‘The rules concerning admissibility of evidence are the same, imespective of the nature of the document (whether the document be a statute, contract, wil or patent) ‘To the extent that evidence may be admisible to contextualie the document (since “context is everything’), to establish its Factal matrix or purpose or for the purposes of identification, it must be used as conservatively as possible. There is no merit in trying to distinguish between ‘background circumstances’ and ‘surrounding cireumstances' KPMG Chartered Accountants v Securfn Ld [2009) 2 All SA 823 (SCA), 2009 (4) A 389 (sca) [Natal foint Municipal Pouon Fund v Eudumeni Municipaliy [2012] All SA 262 (SCA), 2012 (4) SA 583 (SCA) "Novaris v Maphi [2015] 4 All $A 417 (SCA), 2016 (1) SA5I8 (SCA) Wood» Capita Insurance Serces Lad [2017] UKSC 24 paras 8-15, {Contracts and terms of a contract that are contra bonos mores (contrary to public policy) are void, Barthzen» Napier 2007 (7) BCLR 691 (CC), 2007 (8) SA'328 (CC) Brodenkamp and others» Standard Bank of SA Ltd 2010 (9) BCL 892 ( AAIISA TTB (SCA), 2010 (4) SA-468 (SCA) ), (2010) 4no ANS PRECEDENTS OF PLEADINGS ‘The Consumer Protection Act deals extensively with this subject in relation to agree- ments covered by that Act. ‘Consumer Protection Act 68 of 2008 48 See CONSUMER PROTECTION ‘The excepto doli gmerais cannot be used to regulate contracwal relationships because ‘one party drove a hard or harsh bargain. Other contractual remedies should be used. Bank of Lshon & SA Lid v De Omdas [1988] 2 All SA 883 (Ai, 1988 (8) SA.580 (A) and ater» Standard Bonk of $A Lid 2010 (0) BCLR 892 (SCA), [2010] 4 AISA 113 (SCA}, 2010 (4) SA-168 (SCA) paras 32-35 yVagueness usually involves questions of interpretstion and, as such, does ‘not concern questions of evidence or onus, For the approach to vagueness of contracts, [Nanian Minerals Cxporaton Dengue Concessions Lad (1947) 1 AILSA 191 (A), 1097 2) SA 548 (A) ‘De Bar» Keser [2002] 1 All SA 368 (A), 2008 (1) SA 827 (SCA) Bay Corporat of Fah Eagev Group Tuo Inesents (Py) L112008 (5) SA 414 (W) Laggenbeg and others Mare (2018) ZASCA 24 para, 23 ED ‘Claim ~ based on an oral contract 1. At place} on (date), plains and defendant concluded an oral contract. 2. Plaintiff acted personaly, and defendant was represented by his lesman (name). 3. In terms ofthe contract: (@)- defendant sold to plaintiff a motor eile (description) (8) the price was (amount); (€) delivery had to take place on [dat]. 4. Te wat an express, alimmatioay implied, term that the vehicle would be free from latent defects Plea to the eam Ieyas an express term ofthe contract that the motor vehicle i sold “vetstoots! (Claim — based on a tact term Plains is a garage owner. (On [date] a [place ps “The parties acted personally In terms of the contract, plaintif undertook to repair the exhaust system of defendant's rotor vehicle [deseription} 5, twas tact term ofthe agreement that defendant would remunerate plains for the work done at plaints usual and customary rate 6, Plintif repaired the exhaust system in terms ofthe agreement. 17. Plant's usual and customary rates [amount] {and defendant concluded an oral contract Plea ~to the foregoing Defendant pleads that it was an express term of the agreement that plintif would repair the exc hast system free of charge [orl fora sum not exceeding [amount] aim ~alleging 2 tacit contract, 1, On {date}, plainif and defendant became the co-owners ofthe frm the Bequest ofthe late [name] fname] as aresult ofPART B: NOTES AND PRECEDENTS m 2. Shortly thereafter plain and defendant occupied the farm and began toute itjointly 3. The patties shared the farming expenses and income equally during [state period] 44. Because ofthe foregoing, a tacit partnership agreement came into existence on or about [date] between plantif and defendant with the following mater terms (a). the parties were to be partners in the farming venture on (rame of farm}; () each partner would contribute equaly to the farming expenses; (6) each party would be entitled to an equal share of che profits (4) the partnership could be terminated by reasonable notice. Claim ~alleging a writen contract On [date] at [place], plainff and defendant concluded a writen contrac, ‘A copy of the contract i annexed. Plainsff was represented by [name] and defendant was represented by {name} ‘The terms ofthe contract material w this action are (set out]. Gaim — based on contract by correspondence 1. On [date] at [place], plaintiff addressed to defendant an offer to purchase from defendant [iter] Yor amount) A.copy ofthe offer i annexed hereto and marked ‘A 2 On [date] at (place, defendant accepted the offer in writing by sending by post wo plains the leter annexed hereto and marked 'B 3. Therefore, a writen contract was entered between the partes cn [date] at [place] having the following material terms: [etal Contract: Conditions [Related subjects: CONTRACT: CONCLUSION AND TERMS; INSURANCE Leading cases: ‘Resist Dar (Py) Lid Ata Proton nrurance Co Ltd [1965] 2 All SA 45 (A), 1963 (1) Sa.682 (A) Design & Planing Sone» Krage (1974) 2 AILSA 5 (7), 1974 (1) SA.689 (T) Ven Raenen Stl (ry Li Smith NO [2002] JOL 9515 (A), [2002] ZASCA 12, 2002 (4) SA 264 (SCA) Digors Deoeapment (Py) Ltd v City of Molvona and another [2012] 1 All SA 428 (SCA) Conditions and terms: A condition is an external fact on which the existence of an obli- gation or jurist act depends. A term of a contract, on the other hand, does not relate to the existence of the obligation but to its nature. _Jurgos Biondonsagente» Share [1990] 2 All SA'548 (A), 1990 (4) SA 654 (A) ‘Prema, Fe State © Frachom Pre Stat (Py) Li (2000) 3 Al S247 (A), 2000 (4) SA 413 (sca) ‘Von Tigh v Botha [2005] 2 All $A 920 (C) Persons Transport (P) Lid» Global Insurance Co Let (2008) ZASCA 95, 2006 (1) SA 488 (sca ‘The distinction between a condition and a term of a contract has important practical implications relating to the onus of proof. The fulfilment ofa condition must be alleged and proved by the party relying on the contract, whereas a breach of a term in a con- tract must be alleged and proved by the person relying on the breach, esis Dairy (Py) Lid v Auto Protacion Insurance Co Li (1968) 2 ASA 45 (A), 1968 (1) Ssa'682 (A) ‘Kates Hope Game Farm (P) Limited » Toblanchhodk Game Rem (Py) Ld (1997 4 All SA 15 (A), 1998 (1) SA 235 (SCA)