Court name
High Court Main Division
Case number
HC-MD-CIV-ACT-OTH 3060 of 2017

Edcon Construction CC v Red Investment Holding Company (Pty) Ltd (Ruling) (HC-MD-CIV-ACT-OTH 3060 of 2017) [2018] NAHCMD 93 (03 April 2018);

Media neutral citation
[2018] NAHCMD 93
Usiku J


[1]        The Defendant excepts to the Plaintiff’s particulars of claim on the ground that same do not contain sufficient particulars to sustain a cause of action. The Plaintiff alleged in its particulars of claim that an “Acceptance of Proposal” annexed to its particulars of claim, signifies a written agreement between the Plaintiff and the Defendant.

[2]        The Defendant contends that, it is evident ex facie the said “Acceptance of Proposal” that there are certain conditions precedent relating to the acceptance, and that the law provides that a conditional offer or acceptance is invalid or void and cannot constitute a valid agreement.  The Defendant further argues that no contract can be concluded upon a conditional offer or acceptance, therefore, the Plaintiff’s amended particulars of claim lack averments necessary to sustain a cause of action.

[3]        The Plaintiff on the other hand, contends that the issue whether the two parties reached an agreement is to be determined by the court using an objective test.  The issue of conditional acceptance of an offer occurs only if the acceptance raises additional terms which are subject to further negotiations. The Plaintiff further argues that, where the acceptance of the offer does not raise further material terms for negotiations, a valid and binding legal agreement comes into being. The Plaintiff, therefore, argues that the particulars of claim are not excipiable.

[4]        It is common ground that an excipient must persuade the court that on every interpretation which the pleading can reasonably bear, no cause of action is disclosed by such pleading. If possible evidence can be led on the pleading, which can disclose a cause of action, then such pleading is not excipiable.  A pleading is only excipiable on that basis if no possible evidence can be led on the pleading to disclose a cause of action.  The issue of whether or not there was a valid and binding agreement between the parties is one on which possible evidence can be led on the pleadings to disclose a cause of action.  In the present matter, I am not persuaded that upon every interpretation which the pleading in question bear, no cause of action is disclosed.

[5]        I am of the opinion that the Plaintiff has pleaded the necessary averments constituting its cause of action.  And for the aforegoing reasons the exception by the Defendant falls to be dismissed, and is hereby dismissed with costs.





B Usiku









FOR THE PLAINTIFF:                     T Ipumbu

                                                         of Titus Ipumbu Legal Practitioners, Windhoek


FOR THE DEFENDANT:                  A Kamanja   

                                                         of Amupanda Kamanja Inc., Windhoek