S v Mbi (47/88) [1988] ZASCA 118 (29 September 1988)

S v Mbi (47/88) [1988] ZASCA 118 (29 September 1988)

The court held that the particulars of claim did not sufficiently allege dolus or intent on the part of the respondents. There was no express or implied averment that the respondents intended to cause loss to the appellant or were conscious of the unlawfulness of their conduct. The pleadings were consistent with an honest dispute regarding the right to occupy the premises, which negates dolus. Since an allegation of dolus is essential to sustain a delictual cause of action for intentional interference with contractual rights, and such an allegation was absent, the exception was correctly upheld. The appeal was dismissed.

Citation
[1988] ZASCA 118
Parties
Appellant: Dantex Investment Holdings (Pty) Ltd; Respondent: A Brenner; Respondent: D J Rennie; Respondent: M I Schwartz
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 1988
Case Number
47/88
Procedural Posture
Civil Appeal / Appeal Against Upholding of Exception
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Rabie, Hoexter, Botha, Van Heerden, Grosskopf
Legal Topics
Exception Procedure, Wrongful Occupation, Aquilian Action, Intentional Interference With Contract, Dolus Requirement
Civil Procedure Delict Exception Procedure Wrongful Occupation Aquilian Action Intentional Interference With Contract Dolus Requirement

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Parties

Dantex Investment Holdings (Pty) Ltd

Appellant

A Brenner

Respondent

D J Rennie

Respondent

M I Schwartz

Respondent

Procedural Posture

Civil Appeal / Appeal Against Upholding of Exception

Legal Issues

  1. 1 Whether a lessee who has not received occupation of leased premises can claim damages under the lex Aquilia for wrongful occupation by a third party.
  2. 2 Whether the particulars of claim sufficiently allege dolus or intent on the part of the defendants to sustain a delictual cause of action.
  3. 3 Whether consciousness of unlawfulness is a necessary element of dolus in the context of intentional interference with contractual rights.

Ratio Decidendi

The court held that the particulars of claim did not sufficiently allege dolus or intent on the part of the respondents. There was no express or implied averment that the respondents intended to cause loss to the appellant or were conscious of the unlawfulness of their conduct. The pleadings were consistent with an honest dispute regarding the right to occupy the premises, which negates dolus. Since an allegation of dolus is essential to sustain a delictual cause of action for intentional interference with contractual rights, and such an allegation was absent, the exception was correctly upheld. The appeal was dismissed.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.
  • The period allowed by the court a quo for amendment of the plaintiff's particulars of claim is extended to one month from date hereof.