Special Investigating Unit v and Another v Smith and Others (1127/2017) [2018] ZAECGHC 10 (20 February 2018)

Special Investigating Unit v and Another v Smith and Others (1127/2017) [2018] ZAECGHC 10 (20 February 2018)

The court found that the particulars of claim, as amended, set out sufficient facts to establish a duty of care owed by the trustees to the Department and the basis for personal liability. The allegations regarding unjustified enrichment were adequately pleaded, including the calculation of the amount claimed and the legal grounds for restitution under condictio ob turpem vel iniustam causam. The court held that the par delictum rule is not absolute and may be relaxed to prevent injustice or promote public policy. The plaintiffs had pleaded the Department's loss and its calculation in sufficient detail. The exceptions raised by the second defendant did not go to the heart of the claim and...

Citation
[2018] ZAECGHC 10
Parties
Plaintiff: Special Investigating Unit; Plaintiff: MEC for the Department of Education, Eastern Cape; Defendant: Johannes Hermanus Bouwer Smith; Defendant: Quinton Wentzel; Defendant: Laurene Sahd; Defendant: Garry Ellison Charles Hodgerson
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
20 February 2018
Case Number
1127/2017
Procedural Posture
Civil Application / Exception to Particulars of Claim
Outcome
Exception dismissed with costs, including costs of two counsel.
Judges
F Y Renqe
Legal Topics
Exception Procedure, Unjustified Enrichment, Fiduciary Duty, Breach of Trust, Procurement Irregularities, Personal Liability of Trustees
Civil Procedure Commercial and Corporate Delict Exception Procedure Unjustified Enrichment Fiduciary Duty Breach of Trust Procurement Irregularities +1 more

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Parties

Special Investigating Unit

Plaintiff

MEC for the Department of Education, Eastern Cape

Plaintiff

Johannes Hermanus Bouwer Smith

Defendant

Quinton Wentzel

Defendant

Laurene Sahd

Defendant

Garry Ellison Charles Hodgerson

Defendant

Procedural Posture

Civil Application / Exception to Particulars of Claim

Legal Issues

  1. 1 Whether the particulars of claim are vague and embarrassing or lack averments necessary to sustain a cause of action.
  2. 2 Whether the second defendant can be held personally liable in delict or contract for the alleged conduct.
  3. 3 Whether the plaintiffs have pleaded a valid claim for unjustified enrichment against the defendants.

Ratio Decidendi

The court found that the particulars of claim, as amended, set out sufficient facts to establish a duty of care owed by the trustees to the Department and the basis for personal liability. The allegations regarding unjustified enrichment were adequately pleaded, including the calculation of the amount claimed and the legal grounds for restitution under condictio ob turpem vel iniustam causam. The court held that the par delictum rule is not absolute and may be relaxed to prevent injustice or promote public policy. The plaintiffs had pleaded the Department's loss and its calculation in sufficient detail. The exceptions raised by the second defendant did not go to the heart of the claim and...

Court Disposition

Exception dismissed with costs, including costs of two counsel.

Orders

  • The exception is dismissed with costs.
  • Such costs to include costs of two counsel.