Propshaw (PTY) LTD v Karoo-Osche, Vryburg (PTY) LTD and Another (1808/16) [2018] ZANWHC 45 (20 September 2018)

IN THE HIGH COURT OF SOUTH AFRICA

NORTH WEST DIVISION, MAHIKENG

CASE NO: 1808/16

In the matter between:

PROPSHAW (PTY) LTD

Plaintiff

And

KAROO-OSCHE, VRYBURG (PTY) LTD

First Defendant

JS AFSLAERS CC t/a SWARICO AFSLAERS

Second Defendant

JUDGMENT.

GURA J:

Introduction

[1] The plaintiff instituted an action against the first defendant for payment of R364 982.86. The cause of action against the first defendant is based on breach of contract in that the first defendant is alleged to have outstanding balance owing to the plaintiff for cattle delivered by the latter to the former.

[2] The plaintiff’s claim against the second defendant is conditional upon the Court finding that the first defendant is not liable towards plaintiff for payment of the outstanding amount. The plaintiff’s claim against the second defendant is based upon unjust enrichment. The second defendant raised an exception to the plaintiff’s alternative claim on the ground that it lacked averments necessary to sustain a cause of action against the second defendant (“the excipient”). The exception is opposed by the plaintiff.

Exception – General Principles:

[3] In McKenzie v Farmers’ Co – operative Meat Industries[1] the following definition of “cause of action” was adopted by the Appellate Division:

“…every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.”

[4] In order to ensure that its pleading is not excipiable a plaintiff:

“moet toesien dat die wesenlike feite (dit wil sê die facta probanda en nie die facta probantia of getuienis ter bewys van die facta probanda nie) van sy eis met voldoende duidelikheid en volledigheld uiteengesit word dat, indien die bestaan van sodanige feite aanvaar word, dit sy regskonklusie staaf en hom in regte sou moet laat slag tav die regshulp of uitspraak wat aanvra.”[2]

[5] Rule 18(4) of the Uniform Rules of Court makes it clear that material facts only should be pleaded. Facts and not evidence must be pleaded[3]. In order to succeed with an exception that a pleading lacks averments which are necessary to sustain a cause of action an excipient has a duty to persuade the Court that upon every interpretation which the pleading in question, and in particular the document(s) on which it is based, can reasonably bear, n cause of action is disclosed. Failing this, the exception ought not to be upheld.[4]

[6] Where there is uncertainty in regard to a pleader’s intention, an excipient cannot avail himself thereof unless he shows that upon any construction of the pleading the claim is excipiable.[5] If evidence can be led which can disclose a cause of action alleged in a pleading, that particular pleading is not excipiable. A pleading is excipiable only on the basis that no possible evidence led on the pleadings can disclose a cause of action[6]. It is trite laws that, for purpose of deciding on an exception, the correctness of the allegations contained in the pleadings excepted to must be assumed.[7]

Claim against second defendant:

[7] The plaintiff’s claim against the second defendant is formulated in the alternative in the event of the court finding that the first defendant is not liable towards the plaintiff.

7.1 The amount of R365 000.00 was due, owing and payable to the plaintiff by the first defendant as at 6 November 2013.

7.2 On or about 6 November 2013 the first defendant, on instruction of one Shawn Pretorius, who acted without authority of the plaintiff, made payment to the second defendant in the amount of R365 000.00

7.3 A copy of the deposit slip as proof of such payment was attached to the particulars of claim as ANNEXURE “E”. Payment was not made in cash but by means of a cheque.

7.4 The said amount was neither due nor owing to the second defendant and no valid causa for the payment of the said amount to the second defendant existed.

7.5 The second defendant nevertheless appropriated the amount of R365 000.00.

7.6 The second defendant is enriched unjustly in the amount of R365 000.00 at the expense of the plaintiff.

7.7 Despite demand the second defendant fails and/or refuses and/or neglects to pay the amount of R365 000.00 to the plaintiff.

Second defendant’s exception:

[8] The second defendant contends that the claim formulated against it lacks the necessary averments to sustain a cause of action based on the following:

8.1 The law in South Africa does not recognize a general action in enrichment.

8.2 The only recognized claim for an action on enrichment under which the plaintiff’s claim might possibly resort is the condictio furtiva.

8.3 A claim under the condictio furtiva is in terms of the plaintiff’s particulars of claim not legally sustainable for the following reasons:

8.3.1 The plaintiff would have been entitled to payment of the purchase price for the slaughtered cattle due by the first defendant;

8.3.2 The plaintiff’s estate is not impoverished by payment of the purchase price to the second defendant, as it still enjoys the benefit of a corresponding claim against the first defendant;

8.3.3 It is not alleged that Pretorius acted on behalf of the second defendant or that the second defendant was a party to the fraudulent conduct of Pretorius (by instructing the first defendant to make payment of the amount of R365 000.00 to the second defendant);

8.3.4 It is not alleged by the plaintiff that the money paid to the second defendant represents money of which the plaintiff was the owner. Money due by the first defendant to the plaintiff would have been paid from the first defendant’s own funds and from its bank account and plaintiff had no interest in the money held in the bank account of the first defendant;

8.3.5 It is not alleged by the plaintiff that the second defendant stole the money or received it mala fide or that the second defendant had been involved in the intentional and unlawful conduct that lead to the second defendant’s alleged enrichment.

[9] An exception is a pleading and an excipient is bound to the grounds of exception set out in the notice of exception and will not be permitted at the hearing of the exception to rely on different grounds or to raise a different exception[8].The second defendant’s exception must accordingly be dismissed in the event of the Court finding that the plaintiff’s claim can be sustained on averments made in respect of any other recognized enrichment action.

Evaluation by the plaintiff of second defendant’s grounds of exception.

[10] The plaintiff accepts that there is no general enrichment action recognized in South African law. According to the plaintiff, the claim against the second defendant is formulated on the basis that the court finds that the first defendant is not liable towards the plaintiff for the claim amount. The alternative claim formulated against the second defendant is accordingly premised on the absence of a corresponding claim against the first defendant. There is thus no merit in the second defendant’s contention that the plaintiff’s estate is not impoverished by payment of the purchase price to the second defendant because of a corresponding claim against the first defendant.

[11] In its heads of arguments the plaintiff made the following submissions: The condicto furtiva is a delictual action for the recovery of patrimonial loss as a result of theft.[9] The requirements for the condictio furtiva are as follows:

11.1 The plaintiff must at all relevant times have had a sufficient interest in the thing (e.g. as owner or as the person who bore the risk);

11.2 The defendant must have stolen the thing or have received it mala fide, knowing that it had been stolen.[10]

[12] The plaintiff’s claim is not formulated on the basis of the condictio furtiva and it is not the plaintiff’s case that the second defendant must have stolen the money or received it mala fide.[11] There was thus no need for the plaintiff to allege that Pretorious acted on behalf of the second defendant or the second defendant was a party to the fraudulent conduct of Pretorius. There is thus equally no merit in the second defendant’s contention that the particulars of claim lack these averments to sustain a cause of action, they are simply not part of the plaintiff’s cause of action.

[13] The allegation that the second defendant appropriated the amount of R365 000.00 in paragraph 18.5 of the particulars of claim, does not indicate a reliance on the condictio furtiva. The term “appropriated” can also be used in the context of the other enrichment actions, e.g. the condictio indebiti.[12] The use of the term “appropriate” by the plaintiff is at most a surplus.

[14] The plaintiff’s claim is formulated on the basis of the condictio sine causa. The requirements for the condictio sine causa are as follows:

14.1 Receipt by the defendant of money or goods to which the plaintiff is entitled;

14.2 The absence of a valid causa for such receipt – in other words, the money or goods must not have come to the defendant by way of gift, payment, discharging of a debt, or in terms of a promise or other obligation or lawful ground justifying enrichment.

Evaluation of evidence by Court

[15] At paragraph 18.4 to 18.6 of the particulars of claim against the second defendant, the plaintiff avers:

“18.4 The said amount was neither due nor owing to the Second Defendant and no valid causa for the payment of the said amount to the Second Defendant existed.

18.5 The Second Defendant nevertheless appropriated the amount of R365 000.00.

18.6 The Second Defendant is enriched unjustly in the amount of R365 000.00 at the expense of the Plaintiff.”

[16] In paragraph 18.4 which has just been quoted the plaintiff points out that the payment was made to the second defendant sine causa. The plaintiff’s claim is therefore based on the condictio sine causa. In my view the words “enriched unjustly “in paragraph 18.6 (also just quoted) do not introduce a fresh ground of this action. At best, it is an explanation about the actual effect of this unjustified payment on the second defendant. The particulars of claim are clear that the second defendant received a payment from the first defendant which was not due to it. I cannot see any problem for the second defendant in understanding the plaintiff’ cause of action on which he sues the second defendant.

[17] The suggestion by counsel for the second defendant that the plaintiff should sue the first defendant alone first and only to sue the second defendant if it (plaintiff) has lost against the first defendant, amounts to splitting of hair and disregards the cost of litigation. As the plaintiff’s counsel suggested, the first defendant would insist on joinder of the second defendant if it was sued alone. Besides, the plaintiff has claimed payment by the second defendant only if the court absolves the first defendant. I am of the view that the exception taken by the second defendant is baseless.

[18] Consequently, the exception is dismissed with costs.

SAMKELO GURA

JUDGE OF THE HIGH COURT

NORTH WEST DIVISION

APPEARANCES:

DATE OF HEARING:

07 DECEMBER 2017

DATE OF JUDGMENT: 20 SEPTEMBER 2018

COUNSEL FOR PLAINTIFF: ADV HITGE

COUNSEL FOR DEFENDEANTS: ADV SWART (Second Defendant)

ATTORNEYS FOR PLAINTIF: VAN ROOYEN TLHAPI WESSELS ATTORNEYS

ATTORNEYS FOR DEFENDANTS: SMIT STATION INC (First Defendant)

LABUSCHAGNE PROKUREUR/ATTORNEYS

(Second Defendant)

[1] 1922 AD 16.

[2] Makgae v Sentraboer (Kooperatief) Bpk 1981 (4) SA 239 at 244.

[3] Moaki v Reckitt & Colman (Africa) Ltd 1968 (3) SA 98 (A) at 102.

[4] First National Bank of SA Ltd v Perry NO [2001] 3 All SA 331 (SCA); Vermeulen v Goose Valley investments (Pty) Ltd [2001] 3 All SA 350 (SCA).

[5] Amalgamated Footwear & Leather Industries v Jordan & Co Ltd 1948 (2) SA 891 (C) at 893

[6] F J Hawkers & Co Ltd v Nagel 1957 (3) SA 126 (W) at 130F-G; SA Defence and Aid Fund v Minister of Justice 1967 (1) SA 31 (C) at 37H.

[7] Fose v Minister of Safety and Security [1997] ZACC 6; 1997 (3) SA 786 (CC) at para [22].

[8] Inkin v Borehole Drillers 1949 (2) SA 366 (A) at 373; Ritchie Motors v Moolman 1956 (4) SA 337 (T) at 340A – C; Jowel v Bramwell – Jones 1998 (1) SA 836 (W) at 898

[9] Crots v Pretorius 2010 (6) SA 415 (SCA) at para [3].

[10] Harms, Amler’s Precedents of Pleadings, 8th ed,pp 91 – 92.

[11] Harms, Amler’s Precedents of Pleadings 8th ed p91.

[12] Harms, Amler’s Precedents of Pleadings, 8th ed,p 94