Is it possible to sue on a contract, even if the original and/or a copy thereof is unavailable as evidence?

Published on September 8, 2022

Rule 6 (6) of the Magistrate’s Court Rules requires a party to provide a copy of a contract or part thereof if relied upon and to attach same to the pleadings concerned.

Rule 6 (6) states that a party relies on a contract shall state whether the contract is in writing or oral, and when, where and by whom it was concluded, and if the contract is in writing a copy thereof or the part relied upon in the pleading shall be annexed to the pleading.

In MOOSA AND OTHERS NNO vs. HASSAM and OTHERS NNO 210 (2) S.A. 410 (KZP) the Court found that in the absence of the written agreement the basis for the cause of action does not appear ex facie (typically used to note that a document’s explicit terms are defective) the pleadings.

The respondents in Moosa were directed to remedy the irregularity, being the failure to annex the written contract on which they rely on, or a time copy thereof.

However, in ABSA BANK LTD vs. ZALVEST TWENTY (PTY) LTD 2014 (2) S.A. 119 (WCC) the Court stated that Moosa is not authority for the proposition that a plaintiff is deprived of its cause of action merely because it is unable to attach a copy of the agreement to its pleadings.

The approach of the court in Moosa should be seen within that confined and limited context of non-compliance. The court’s well-reasoned approach is captured in these paragraphs:

[9] The rules of court exist in order to ensure fair play and good order in the conduct of litigation. The rules do not lay down the substantive legal requirements for a cause of action, nor in general are they concerned with the substantive law of evidence. The substantive law is to be found elsewhere, mainly in legislation and the common law. There is no rule of substantive law to the effect that a party to a written contract is precluded from enforcing it merely because the contract has been destroyed or lost. Even where a contract is required by law to be in writing (e.g., a contract for the sale of land or a suretyship), what the substantive law requires is that a written contract in accordance with the prescribed formalities should have been executed; the law does not say that the contract ceases to be of effect if it is destroyed or lost.

[10] In regard to the substantive law of evidence, the original signed contract is the best evidence that a valid contract was concluded, and the general rule is thus that the original must be adduced. But there are exceptions to this rule, one of which is where the original has been destroyed or cannot be found despite a diligent search…

[11] That then is the substantive law. The rules of court exist to facilitate the ventilation of disputes arising from substantive law. The rules of court may only regulate matters of procedure; they cannot make or alter substantive law (United Reflective Converters (Pty) Ltd v Levine 1988 (4) SA 460 (W) at 463B – E and authority there cited). The court is, moreover, not a slave to the rules of court. As has often been said, the rules exist for the courts, not the courts for the rules (see Standard Bank of South Africa Ltd v Dawood 2012 (6) SA 151 (WCC) para 12) …

[12] A rule which purported to say that a party to a written contract was deprived of a cause of action if the written document was destroyed or lost would be ultra vires. But the rules say no such thing. Rule 18(6) is formulated on the assumption that the pleader is able to attach a copy of the written contract. In those circumstances the copy (or relevant part thereof) must be annexed. Rule 18(6) is not intended to compel compliance with the impossible. (I may add that it was only in 1987 that rule 18(6) was amended to require a pleader to annex a written copy of the contract on which he relied. Prior to that the general position was that a pleader was not required to annex a copy of the contract — see, for example, Van Tonder v Western Credit Ltd 1966 (1) SA 189 (C) at 194B – H; South African Railways and Harbours v Deal Enterprises (Pty) Ltd D 1975 (3) SA 944 (W) at 950D – H.)

In NEDBANK vs. JACOB 2022 (2) S.A. 230 (GJ) the Court referred with approval to ABSA (supra) and added the following:

The substantive law of evidence prescribes that the origins / signed contract is the best evidence that a valid contract was concluded. and the general rule is thus thot the original must be produced. But, if it is impossible for the plaintiff to produce the written contract or a copy thereof, substantive law allows him to plead and prove the conclusion of the contract and its terms by way of secondary evidence. A rule of procedure such as Magistrate’s Court Rule b (b) or the equivalent High Court Rule 18 (b) cannot be construed to deprive the plaintiff of his cause of action or his right to adduce secondary evidence ot the contract

COMMENT BY MW ATTORNEYS

In the case where the cause of action is based upon written agreement, the written agreement is a vital link in the chain of cause of action. For the cause of action to be properly pleaded, it is necessary for the written agreement to be relied upon to be annexed to Particular of Claim.

However, clients should be aware that they can still sue on contracts, even if the original and/or a copy thereof are unavailable as evidence.

H.H. Weiss
Candidate Attorney