THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable
Case No:  199/13

In the matter between:

TSHIAENEO SYBIL RAMATSHIMBILA

APPELLANT

and

DR NKHELEBENI PHASWANA

RESPONDENT

Neutral citation: Ramatshimbila v Phaswana (199/13) [2014] ZASCA 117 (19
September 2014)

Coram:

Cachalia, Willis, Saldulker, Zondi JJA and Gorven AJA

Heard:

4 September 2014

Delivered:

19 September 2014

Summary: Appeal – Against order upholding exception that plaintiff’s particulars of
claim discloses no cause of action ─ leave to amend granted ─ plaintiff
contending that the order is final in effect because it is unable to amend
─ decision not appealable.

Practice – non-joinder can be raised by way of exception – two forms of

relief sought in particulars of claim ─ exception upheld pro tanto.
___________________________________________________________________
ORDER
___________________________________________________________________
On appeal from: Limpopo High Court, Thohoyandou (Makhafola J sitting as court of
first instance):
The appeal succeeds in part and the order of the high court is set aside and in its
place the following order is substituted:
‘(a)
The exception to claim one is upheld with costs. The plaintiff’s particulars of
claim in the main claim, is set aside and she is given leave, if so advised, to file amended
particulars of claim by 31 October 2014.
(b)
The exception to the alternative claim is dismissed with costs.’
Each party is ordered to pay his or her own costs of appeal in this Court as
well as the costs of the application for leave to appeal to this Court.

JUDGMENT

Zondi JA (Cachalia, Willis, Saldulker JJA and Gorven AJA concurring):
[1] This is an appeal against an order of the high court, Limpopo (Makhafola J)
upholding with costs an exception taken by the respondent (the defendant) to the
appellant’s (the plaintiff) particulars of claim on the ground that it discloses no cause of
action and granting the plaintiff leave to amend her particulars of claim if she so wishes.

[2] In her particulars of claim the plaintiff seeks as her main relief an order for: (a)
dissolution of the putative marriage; (b) equal division of the joint estate; (c) a
declaratory order that a partnership existed between the parties in equal shares in respect
of several businesses and (d) an order dissolving the partnership and the distribution of
assets of the businesses in equal shares.

[3] In the alternative and in the event of a putative marriage not being proved, the
plaintiff seeks an order for payment in the amount of R3 000 000 for false representation
by the defendant which caused her to suffer damages. The high court upheld the
exception to both the main and alternative claims, but its order does not distinguish
between them. It simply states that the exception is upheld and the plaintiff is given the
opportunity to amend her papers if she so wishes. No time periods within which the
papers are to be amended are specified.

[4] The first issue is whether the order of the court below is appealable. On the face
of it, it seems not as the court below granted the plaintiff leave to amend her particulars
of claim. The plaintiff however contended that the true basis for the court’s decision was
that her particulars of claim failed to disclose a cause of action and therefore was final in
effect. That contention would only have been valid if the court a quo did not grant the
plaintiff leave to amend her particulars of claim, because when an exception is upheld on
the ground that a plaintiff’s particulars of claim fails to disclose a cause of action, the
order is fatal to the claims pleaded and therefore final in its effect.1 However, when an
exception is upheld on the ground that the particulars of claim does not disclose a cause
of action and the plaintiff is granted leave to amend, whether or not that order is final
would depend on whether it is capable of being amended.2

[5] The plaintiff’s complaint is that it is unclear from the court’s judgment what must
be amended and therefore it is final in effect ─ a rather odd submission. Properly
understood, the plaintiff’s submission is that it is not clear from the judgment or order
what the basis of the order was, and therefore the pleadings are not capable of being
amended.

1 Liquidators Myburgh Kroon & Co Ltd v Standard Bank of South Africa Ltd & another 1924 AD 226  at 229.
2 Trope & others v South African Reserve Bank 1993 (3) SA 264 (A) at 270F; Group Five Building Ltd v Government of the

[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. Turning to the
plaintiff’s particulars of claim, the two claims were formulated as follows. In claim one
the plaintiff alleged both that the relationship is a putative marriage and that a universal
partnership existed between herself and the defendant and sought relief which is set out
in para 2 above. The plaintiff’s claim for a division of the joint estate is based on the
allegations contained in paras 4 to 10 of the particulars of claim. First, that an
unregistered customary marriage between her and the defendant is a marriage to which s
7(2) of the Recognition of Customary Marriages Act 120 of 1998 applies;3 secondly,
that when she entered into the customary marriage with the defendant on 16 August
2008 she was unaware that the defendant was a partner to an existing civil marriage; and
thirdly, that she bona fide believed that her customary marriage to the defendant was
valid. In the circumstances the plaintiff claimed that the marriage between herself and
the defendant is a putative marriage. In Moola & others v Aulsebrook NO & others4  the
court summarised the requirements of a putative marriage as follows:
‘(a) there must be bona fides in the sense that both or one of the parties must have been ignorant of the
impediment to the marriage;
(b) the marriage must be duly solemnised;
(c) the marriage must have been considered lawful in the estimation of the parties, or of that party who
alleges the bona fides.’
In my view, the plaintiff’s averments do reveal a cause of action for a putative marriage.

[7] The plaintiff claims further that the intention of the parties was to create a
universal partnership. The allegations in support of this claim are contained in paras 7,

Republic of South Africa (Minister of Public Works and Land Affairs) 1993 (2) SA 593 (A) at 602D.
3 Section 7(2) provides:
‘A customary marriage entered into after the commencement of this Act in which a spouse is not a partner in any other existing
customary marriage, is a marriage in community of property and of profit and loss between the spouses, unless such
consequences are specifically excluded by the spouses in an antenuptial contract which regulates the matrimonial property
system of their marriage.’ But see Gumede v President of Republic of South Africa & others 2009 (3) SA 152 (CC) para 49
on how this section was interpreted.
4 Moola & others v Aulsebrook NO & others 1983 (1) SA 687 (N) at 690H.

12 and 14 of the particulars of claim. What the plaintiff seeks to rely on under this claim
is a remedy derived from the law of partnership. Hence for her claim to succeed she has
to establish that she and the defendant were not only living together as husband and
wife, but that they were partners.5 Although the plaintiff did not specifically allege that
the universal partnership between her and the defendant came into existence by tacit
agreement, it is apparent from the averments in paras 12 ─ 14 of her particulars of claim
that that was the case which she sought to advance.6

[8] The difficulty with the plaintiff’s main claim is that it contains two causes of
action which are mutually inconsistent as the legal consequences flowing from a putative
marriage and universal partnership are different. They cannot be rolled up into a single
claim, and are not pleaded in the alternative. Moreover the defendant’s wife, by virtue of
her marriage in community of property to the defendant, should have been joined as a
party as she has a substantial interest in the joint estate, considering that all assets, save
for those expressly excluded therefrom, form part of the joint estate and each spouse
enjoys an equal undivided share of such joint estate in a marriage in community of
property. During the subsistence of the marriage the spouses thereto cannot by virtue of
an agreement divide the estate in such a way that their assets become the separate
property of the individual spouses nor can one of the parties transfer his or her undivided
half-share of the estate.7 The exception to the particulars of claim on the ground that the
defendant’s wife was not joined, was in the circumstances well-taken and correctly
upheld.8

[9] Although claim one was formulated badly it is capable of being amended. The
part of the order that relates to this part of that claim is ordinarily not appealable, but
given the fact that the order rolled up the two claims into one, the plaintiff had no option

5 Butters v Mncora 2012 (4) SA 1 (SCA) para 11.
6 However, her failure to in terms of Rule 18(6) set out the material facts on which she relies, with sufficient particularity may
result in her particulars being deemed an irregular step in the proceedings.
7 Zulu v Zulu 2008 (4) SA 12 (D) at 15F.

but to appeal against it. I turn to consider the alternative claim.

[10] The alternative claim is a delictual claim formulated on the basis of the defendant
having allegedly made false representations during their customary marriage negotiations
to the effect that he was unmarried when in fact he was already married to someone else,
and that in consequence, she suffered damages. In brief the claim is pleaded as follows:
10.1 The defendant made representations to induce the plaintiff to enter into a
customary marriage;
10.2 the parties concluded the marriage and lobola was paid;
10.3 the representations were false;
10.4 as a result the plaintiff suffered the following damages:
(a) R1 000 000 for diminished prospects of a future marriage;
(b) R500 000 for loss of social standing;
(c) R2 000 000 for loss of income ─ in that she left her employment in contemplation of
marriage; and
(d) R500 000 for discomfort and contumelia.
While the present action may resemble a breach of promise claim it is not; it is only a
single claim in delict. In the present action, the plaintiff seeks damages for fraudulent
misrepresentation, and hence she can recover the delictual measure of damages the
object of which is to place the ‘innocent’ party in the position he or she would have been
in if the misrepresentation had not been made.9 She may be compensated for her proved
actual losses and in addition a discretionary award for sentimental damages for
contumelia (insult). It seems that the relief sought in (a), (b) and (d) relates to contumelia
─ even though they have been awkwardly separated ─ and the amount claimed in (c)
relates to actual losses. If this is so, while inelegantly pleaded, it would sustain a cause
of action.

8 Anirudh v Samdei & others 1975 (2) SA 706 (A) at 708C-709A.
9 Standard General Insurance Co Ltd v Dugmore NO 1997 (1) SA 33 (A) at 41C─E.

[11] An excipient must clearly and concisely state the grounds upon which the
exception is taken. The exception regarding the alternative claim has two legs: The first
ground on which the exception is taken is that the alternative claim is based on a
bigamous marriage between the parties, and is bad in law. That is not the plaintiff’s
case. The effect of the pleading is that the plaintiff was fraudulently induced to enter into
what was in effect an invalid marriage as a result of which she suffered damages. There
is no reason why that claim is bad in law. In addition, the reasoning of the court below in
para 7 of the judgment, that the alternative claim in para 6 of the particulars of claim did
not disclose the terms of the contract is not understood as the plaintiff’s case is that she
was induced to enter into an invalid customary marriage. The second ground on which
the exception is based, is that the particulars of claim does not disclose a cause of action
on the basis that the plaintiff failed to join the defendant’s wife. The non-joinder point is
not valid at all in relation to the alternative claim. It is a delictual claim which, if proved,
the defendant would be liable and not the joint estate. In any event in terms of s 19 of
the Matrimonial Property Act 88 of 1984, when a spouse is liable for the payment of
damages by reason of a delict committed by him such damages are recoverable from the
separate property, if any, of that spouse and only insofar as he has no separate property,
from the joint estate. And if such damages are recovered from the joint estate, an
adjustment shall, upon the division of the joint estate, be effected in favour of the other
spouse or his estate, as the case may be.

[12] The alternative claim is not bad in law on the grounds stated in the exception and
because the effect of the part of the order is final in effect, it is appealable. The appeal
ought to be upheld on this aspect.

[13] I should perhaps say something about the high court’s judgment. It treated the two
claims as if it was dealing with a single claim and upheld the exception in toto. It should
have analysed the grounds stated in the exception specifically in relation to the two
claims so that the plaintiff was left in no doubt about what she needed to do to rectify

the pleadings. This is so, because where an exception is taken to the particulars of claim
in which two forms of relief are sought and where such particulars reveal a cause of
action for one of the forms of relief but not for the other, the court may uphold the
exception pro tanto.10

[14] Given the fact that the pleadings were badly drawn, and the grounds of exception
were not clearly and succinctly stated, the judgment being unclear as to what was
required of the plaintiff, it seems fair to order each party to pay his or her own costs.

[15] In the circumstances the following order is made:
The appeal succeeds in part and the order of the high court is set aside and in its
place the following order is substituted:
‘(a)
The exception to claim one is upheld with costs. The plaintiff’s particulars of
claim in the main claim, is set aside and she is given leave, if so advised, to file amended
particulars of claim by 31 October 2014.
(b)
The exception to the alternative claim is dismissed with costs.’
Each party is ordered to pay his or her own costs of appeal in this Court as well
as the costs of the application for leave to appeal to this Court.

_______________________

D H Zondi

Judge of Appeal

10 Swadif (Pty) Ltd v Dyke NO 1978 (1) SA 928 (A) at 945A─H.

Appearances
For the Appellant:
M S Sikhwari

Instructed by:

Mathobo, Rambau & Sigogo Inc, Thohoyandou

c/o Matsepes Inc, Bloemfontein

For the Respondent:
A D Ramagalela

Instructed by:

Madala Phillip Attorneys, Thohoyandou

c/o Lovius Block, Bloemfontein