Cause of Action in South Africa: What It Means and Why It Matters in Litigation

One of the most common reasons civil claims fail in South Africa is not lack of evidence, but the absence of a properly pleaded cause of action. Before a court can consider the merits of a dispute, a plaintiff must first establish that their particulars of claim disclose a legally recognisable basis for relief.

At Barter McKellar, disputes frequently turn on whether a cause of action exists at all and whether it has been correctly pleaded.

This article explains what a cause of action is, how South African courts approach it and why it is critical in litigation strategy.

What Is a Cause of Action?

In South African law, a cause of action refers to the set of material facts which, if proven, entitle a party to the relief claimed.

It is not:

• Evidence; and

• Not legal argument.

Rather, it is the essential factual ingredients that give rise to a legal right and corresponding remedy.

Courts often describe a cause of action as the facts that must be proved to succeed and without which the claim must fail.

Why Cause of Action Matters

A court cannot grant relief unless:

1. A recognised cause of action exists in law; and

2. It is properly pleaded in the summons or application.

If a pleading fails to disclose a cause of action, it is legally defective, regardless of how compelling the narrative or how strong the underlying grievance may be.

Common Causes of Action in Commercial Litigation

Some of the most frequently encountered causes of action in South African courts include:

• Breach of contract

• Delict (damages)

• Unjustified enrichment

• Misrepresentation

• Breach of fiduciary duty

• Statutory causes of action (created by legislation)

Each has its own elements that must be specifically pleaded.

Pleading a Cause of Action: What the Rules Require

Under the Uniform Rules of Court, pleadings must contain:

• A clear and concise statement of material facts;

• Sufficient detail to enable the opposing party to plead meaningfully;

• Allegations that, if proven, would justify the relief claimed.

A pleading must therefore do more than tell a story , it must connect facts to legal consequences.

Cause of Action vs Evidence

A frequent mistake is pleading evidence instead of material facts.

• Material facts: What happened, who did what, when and how this gave rise to liability.

• Evidence: How those facts will be proved (documents, witnesses, expert opinions).

South African courts consistently caution against confusing the two.

Cause of Action and Exceptions

Failure to disclose a cause of action is one of the most common grounds for an exception.

A defendant may except where:

• The particulars of claim do not disclose a recognised cause of action; or

• Essential elements of the cause of action are missing.

If upheld, the court may:

• Strike out the claim; or

• Grant leave to amend (depending on the defect).

Cause of Action and Special Pleas

Cause of action is also central to special pleas, particularly in relation to:

• Prescription (when the cause of action arose)

• Jurisdiction

• Res judicata

Determining when a cause of action accrued can be decisive in whether a claim survives procedural attack.

When Does a Cause of Action Arise?

A cause of action generally arises when all the elements required for the claim are present.

For example:

• In contract: when breach occurs;

• In delict: when harm is suffered (and knowledge requirements are met);

• In enrichment: when enrichment is unjustified and at the plaintiff’s expense.

This timing has significant implications for prescription and urgency.

A Barter McKellar Perspective on Cause of Action

At Barter McKellar, early litigation strategy often turns on cause of action analysis.

We regularly assist clients by:

• Stress-testing claims before proceedings are launched;

• Identifying whether opposing pleadings are legally sustainable;

• Advising on exceptions, special pleas or amendments;

• Structuring pleadings to withstand procedural attack.

Clear causes of action lead to focused litigation, vague or defective ones invite delay and cost.

Conclusion

A cause of action is the foundation of any civil claim in South Africa. Without it, litigation cannot succeed, regardless of how unfair the outcome may feel.

Whether you are considering instituting proceedings, defending a claim or challenging defective pleadings, understanding cause of action is essential.

Need Help Assessing or Pleading a Cause of Action?

Barter McKellar advises corporates, directors, and high-net-worth clients on complex commercial litigation and procedural strategy across South Africa.

Contact us to assess whether a viable cause of action exists or whether a claim against you can be challenged at an early stage.