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[2021] ZAWCHC 49
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Jacobz NO v de Clerk and Another (1439 / 2016) [2021] ZAWCHC 49 (19 March 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE DIVISION, CAPE TOWN)
Appeal Case Number: 28A / 2021
Case
Number: 1439 / 2016
In
the matter between:
GLONIE
MERCHIA JACOBZ N O
Appellant
and
ANDRÉ
EUGENE DE CLERCK
First
Respondent
ELMARIE
DE
CLERCK
Second
Respondent
Coram : Wille, J et De Villiers, AJ
Heard : 12th of March 2021
Delivered
: 19th of March 2021
JUDGMENT
Wille,
J et De Villiers, AJ:
Introduction
[1]
This is a civil appeal from
the magistrates’ court for the district of Vredendal. Mr
Jacobsz was the owner of certain
immovable property.
[1]
Mr Jacobz passed away on the 2
nd
of June 2010. The appellant is his widow, cited in her a
capacity as the executrix in and to his deceased estate.
[2]
They were married out of community of property. Mr Jacobsz
entered into a sale agreement
[3]
in respect of the property with the first and second respondents on
the 11
th
of May 2009.
[2]
The respondents agreed to purchase the property for the of R750
000,00 subject to
the sale of their existing property within a period
of at least (60) days from the date of conclusion of the agreement.
The
sale agreement was further subject to the granting of
certain bond finance to the respondents in the sum of R250 000,00.
This, all within a stipulated time period.
[3]
An addendum
[4]
,
was thereafter entered into which provided, inter alia, that: the
respondents would take occupation of the property on the
1
st
of July 2009: that this would be prior to registration of
transfer of the property into their names: that they would
pay
rental in an amount of R5000,00 per month and that the time period
afforded to the respondents to sell their property would
be extended
by a further (90) days. The respondents took occupation of the
property on the 1
st
of July 2009. They duly paid the agreed rental for a period of
no less than (6) months. No further payments were made
by the
respondents.
Factual
Matrix
[4]
During May 2016, the appellant instituted action against the
respondents and claimed,
inter alia, the following: payment of
the sum R355 000,00 for unpaid rental from July 2009 to May 2015 in
terms of the addendum:
payment (as an alternative claim)
[5]
,
in the amount of R355 000,00 for damages suffered by the deceased
estate as a direct result of the respondents continued occupation
of
the property without making any payments in respect thereof:
payment in the amount of R32 814,78 in respect of unpaid
property
rates and taxes for which the respondents accepted liability in terms
of the agreement and payment in the amount of R7
808,54 in respect of
unpaid municipal service charges for water and electricity, consumed
by the respondents while they occupied
the property.
[5]
At the commencement of the trial in the court of first instance, the
appellant’s
legal representative placed on record that, to the
extent that it may be found that the agreement and the addendum
thereto were
not enforceable, the appellant abandoned so much of her
claim which exceeded the monetary jurisdiction of the magistrates’
court. This would mean that the appellant’s alternative
claim would be limited to the sum of R200000,00. No objection
was voiced in this connection by the respondents’ legal
representative.
[6]
The respondents raised a shield in the form of a counter claim for
payment in the
amount of R120 000,00 in respect of certain
maintenance and repair work done to the property and also a claim for
the delivery
of certain items which allegedly belonged to the
respondents and were alleged to have been in the deceased’s
possession.
The respondents withdrew their counter claim
sounding in money on the first day of the trial and their second
counter claim
was similarly withdrawn shortly thereafter.
[6]
[7]
The magistrate in the court
a
quo
dismissed the
appellant’s claims
[7]
,
on the basis that: the suspensive conditions to the agreement
had not been fulfilled which caused the agreement to lapse:
that the agreement and the addendum thereto were of no force and
effect: that the appellant was prevented from claiming payment
of any rental in terms thereof and that the clause in the agreement
which recorded the parties’ consent to the jurisdiction
of the
magistrates court was of no force and effect.
[8]
Besides, the court
a quo
held that it was not competent for the appellant to abandon that part
of her alternative claim for any damages that exceeded the
monetary
jurisdiction of the magistrates’ court in the manner that she
did at the inception of the trial. The magistrate
held that
procedurally, a formal amendment to this effect was required.
The appellant’s alternative claim for damages
pursuant to the
respondents’ unlawful occupation of the property, according to
the magistrate, exceeded the monetary jurisdiction
of the
magistrates’ court and was dismissed solely on this ground.
[9]
Wisely, the appellant is not persisting with her claim founded on the
agreement and
the addendum thereto. This appeal is directed
solely against the findings in connection with the alternative claim
for damages
and the subsequent cost orders that were made by the
court of first instance.
[10]
The core issues in this appeal are accordingly the following:
whether the court
a quo
had
jurisdiction to determine the appellant’s alternative claim:
whether the appellant is entitled to damages: if
so, to what
extent has the quantum thereof been established and whether a costs
order ought to have been granted against the respondents
in respect
of their aborted counter claims. Further, the respondents take the
point that the appellant’s claim has prescribed,
alternatively
that a large portion of the claim has since become prescribed because
the appellant only correctly formulated and
filed her alternative
claim on the 5
th
of December 2017. The argument on this score is that
prescription continued to run against the appellant for the period
before the notice of intention to amend was filed and accordingly the
appellant’s claim is now limited to the sum of only
R30 000,00.
Discussion
[11]
Sections 38 (1) and (2) of the Act
[8]
,
provide that:
‘
In
order to bring a claim within the jurisdiction, a plaintiff may in
his summons or at any time thereafter explicitly abandon part
of such
claim’
and
‘
If
any part of a claim be so abandoned it shall thereby be finally
extinguished: Provided that, if the claim be upheld in part only,
the
abandonment shall be deemed first to take effect upon that part the
claim which is not upheld’
[12]
The magisterial monetary jurisdiction threshold at the time of these
proceedings in the court
a quo
,
was limited to claims not exceeding the sum of R200 000,00. The
court
a quo
found that for an abandonment of part of the appellant’s claim
to be achieved, this could only be done by way of a formal
amendment
to the appellant’s pleadings. In this case it could only
be achieved by way of a formal amendment to the
appellant’s
particulars of claim. It must be so that an abandonment of any
portion of a claim in litigation may be
abandoned by way of formal
amendment proceedings.
[13]
This however cannot be the only manner in which to achieve this
result. We say this because
as a matter of logic a litigant
must be entitled to abandon any part of a claim prior to judgment or
even before judgment on appeal.
In
General
Carpets
[9]
,
it was held that
even at the appeal stage, a party is entitled to abandon a part of
his or her claim. This before a final
judgment. In a belt
and braces approach, the appellant has in any event, in the
alternative, in these appeal proceedings,
abandoned the amount of
R155 000,00 in respect of her alternative damages claim against the
respondents.
[10]
[14]
The appellant wisely conceded that the suspensive conditions to the
agreement were not fulfilled
and that the agreement lapsed and was no
longer of any force and effect. The appellant contends that the
respondents no longer
had any legal right to occupy the property.
[11]
This notwithstanding, the respondents continued to unlawfully
occupy the property without paying any consideration for a
period of
about (78) months.
[12]
[15]
The appellant’s case is that she is entitled to claim for
damages suffered as a result
of the respondents’ unlawful
possession of the property.
[13]
Her claim is based on the reasonable and market-related rental
in respect of the property at the time that the respondents
were in
unlawful occupation of the said property. The respondents did
not present any evidence in support of their contention
of the oral
agreement in terms of which they agreed to maintain the property.
This, in lieu of paying any rental.
[16]
The respondents conceded that in terms of the initial agreement they
would pay a rental amount
of R5000,00 per month. Most
significantly, the respondents’ attorneys of record confirmed
that the respondents accept
liability for all and any outstanding
rental in connection with their occupation of the property.
[14]
This was the position as at the 3
rd
of May 2010.
[17]
The appellant also presented expert evidence which referenced the
market value of the property
during this time. The property had
a market value of approximately R1500 000,00. It must also be
born in mind that
the respondents initially agreed to pay a purchase
price of R750 000,00 for the property. If damages are
difficult to
determine or cannot be assessed with certainty, the
plaintiff is still entitled to judgment upon production of all the
evidence
that can reasonably be produced to enable the court to
assess the quantum of the loss.
[15]
[18]
It is clear that the agreement and the addendum thereto are of no
force and effect. The
only claim upon which the appellant can
rely is the alternative claim which was introduced as a result of a
notice of intention
to amend dated the 5
th
of December 2017. This alternative claim is formulated as
follows:
‘
Alternatiewelik,
en indien die Hof bevind dat Eiseres nie kan steun op voormelde
koopkontrak en addendum nie, wat ontken word deur
Eiseres, is dit
Eiseres se saak dat Eerste en Tweede Verweerders aanspreeklik is vir
skade a.g.v. verblyf sonder vergoeding (en
wat tot gevolg gehad het
dat die eiendom nie uit verhuur kon word aan ander huurders teen
vergoeding nie) vir
voormelde
tydperk synde R 5000-00 per maand synde die redelike en billike
markverwante huur betaal t.o.v. voormelde eiendom in die
totale
bedrag van R 355 000,00’
[19]
The appellant initially appears to have misconstrued the legal nature
of her claim which is a
claim for unjustified enrichment.
Although not a model of clarity, we nevertheless hold the view that
the aforesaid formulation
of the appellant’s alternative claim
does indeed possess the essentials necessary to sustain a claim
founded in enrichment.
Both
Cooper
[16]
and
Visser
[17]
,
lend support to our views in this connection.
[20]
In this connection, we also refer to the penchant observations of de
Villiers AJ in
Lobo
Properties
[18]
,
in which it was held as follows:
‘
Both
parties may have been willing to contract, but either, may have
waited for an approach from the other to discuss terms. Mr.
Steyn was
therefore perfectly correct in contending that the averment of a
tacit contract of letting and hiring, as contained in
para 7 of the
declaration, was not supported by the facts alleged in paras 3 to 6
and was to be regarded as a non sequitur. He
was, however, also
correct in conceding that on the facts alleged a condiction would
lie, on the basis relied upon in the alternative
by BURKE, A.J., in
Blignaut’s case’
[21]
The respondents also advance that whatever the nature of the
appellant’s claim may have
been, insufficient evidence was
adduced to prove that she suffered damages in the amount of R5000,00
per month, or any amount at
all. However, the parties agreed
during May 2009 that R5000,00 would be a fair rental in respect of
the property. More
significantly, the respondents adduced no
evidence in rebuttal of the appellant’s allegations in this
regard. In these
circumstances, R5000,00 per month appears to
us to be a fair measure of the damages sustained by the appellant in
these peculiar
circumstances.
[22]
In
Hyprop
Investments
[19]
,
a full bench of the South Gauteng High Court dealt with this latter
aspect in the following terms:
‘
The
market rental value formula for determining damages, therefore, does
not address the situation where other damages are claimed
for holding
over. In such cases it becomes necessary to determine whether they
are in the nature of special damages (if formulated
in contract) or
consequential damages (if formulated in delict) since the
requirements and hence the outcome may differ. This was
the
difficulty confronting the court in Phil Morkel Ltd v Lawson &
Kirk (Pty) Ltd
1955 (3) SA 249
(C). The landlord did not seek a
market related rental but loss of trading profits by reason of its
inability to extend its own
trading operations and put merchandise on
the floor of the premises where the defendant was holding over. The
court allowed the
claim on the basis that these were consequential
damages which were not too remote as they were the natural,
reasonable and probable
consequence of the “wrongful holding
over” (The court’s analysis attracted criticism in “The
case of the
Diehard Tenant” (supra))’
[23]
In summary the respondents’ case was the following: that
they disputed that they
signed the addendum: that they indeed
occupied the property for the period from the 1
st
of July 2009 until December 2014, but that they would maintain or
improve the property in lieu of any rental payments. On
this
score not only did they not lead any evidence whatsoever in support
of these averments, but they also withdrew their counter
claim for
the alleged maintenance and improvements. Furthermore, the
legal arguments advanced on behalf of the respondents,
may be dealt
with swiftly.
[24]
Firstly, their proposition in connection with section 38 (1) of the
Act is clearly wrong.
Secondly, the abandonment of portion of
the appellant’s claim must be seen in its proper context.
The agreement contained
in it a clause consenting to the jurisdiction
of the magistrate’s court. The appellant’s legal
representative
made it abundantly clear at the inception of the trial
that in the event that the court held the agreement to be null and
void,
then in that event, the appellant would abandon so much of her
claim to fall within the jurisdictional limit of the magistrate’s
court. This was done in order to pursue her alternative claim
for damages. This procedure cannot be faulted, and it
amounted
to a misdirection by the court
a quo
to hold otherwise.
[25]
Thirdly, the disputes about electricity consumption and rates and
taxes are of no moment in view
of the abandonment of the appellant’s
claim limited to the sum of R200 000,00. Finally, as
mentioned before, the
respondents advance that the appellant failed
to prove that the reasonable market related rental was the sum of
R5000,00 per month,
coupled with the fact that the appellant was
unable to demonstrate upon which day the respondents had vacated the
property.
[26]
These arguments are not sustainable for, inter alia, the following
reasons: that the respondents
initially and by agreement paid
R5000,00 per month by way of rental for at least (6) months:
that the respondents admitted
their liability for any and all
outstanding rental due to the appellant as at the 3
rd
May 2010: that the respondents failed to present any evidence
to the contrary in this connection: that the respondents
were
not in a position to dispute the conclusions by the expert in
connection with the valuation of the property: that the
argument advanced in connection with the alleged speculation of the
market related rental is euthanized by the fact that the respondents
paid R5000,00 per month, this by agreement, for at least (6) months:
that the prescription defence is of no moment as the
appellant’s
claim is in any event limited to a period of (40) months at R5000,00
per month. This defence is also squarely
struck down by
sections 13 (1) (h) and (i) of the Act.
[20]
[27]
The alternative prescription issue which was raised in argument by
the respondents’ legal
counsel requires some further scrutiny.
The issue is this: that because the appellant only formulated
and filed her
alternative claim on the 5th of December 2017,
prescription continued to run against the appellant and accordingly
the appellant’s
claim falls to be greatly reduced and is
limited now to the sum of R30 000,00.
[28] The notice of
intention to amend so as to include the correct formulation the
appellant’s
alternative claim was only filed on the 5
th
of December 2017. The amendment was however subsequently
granted by the court a quo. This position on this issue is
now
settled in our law.
[29]
I
t is abundantly clear
that the amendment filed by the appellant operates retrospectively
and would perforce date back to the day
the summons was issued.
Any possible defence of prescription accordingly does not arise.
[21]
In the result, the
appeal is upheld and the order in the magistrates’ court is set
aside and substituted with the following
order:
1.
That the first and second respondents are
ordered, jointly and severally, the one paying the other to be
absolved, to pay to the
appellant the sum R200 000,00 together with
interest on the aforesaid amount at the prescribed legal rate, a
tempore mora, to date
of final payment, both days inclusive.
2.
The first and second respondents are
liable, jointly and severally, the one paying the other to be
absolved, for the costs of the
trial action and the costs of this
appeal, on the scale as between party and party, as taxed or agreed.
______________
WILLE, J
I
agree:
_________________
DE
VILLIERS, AJ
[1]
The
remaining extent 34 of
the Farm Zandfontein (Number 105) - hereinafter referred to as the
‘property’
[2]
She was appointed as the executrix in and to the deceased’s
estate on the
on the 9
th
of September 2015
[3]
The ‘agreement’
[4]
The ‘addendum’
which was concluded on the 29
th
of June 2009
[5]
In her notice of
intention to amend dated the 5th of December 2017
[6]
On the 9
th
of April 2019
[7]
On the 4
th
of May 2020
[8]
The
Magistrates’
Courts Act No 32 of 1944
[9]
General Carpets v De
Villiers
1990
(4) SA 411
(W) p 413 - 415
[10]
In her alternative
claim as formulated in her amended particulars of claim
[11]
This on the 26
th
of October 2009
[12]
From
January 2010 until
July 2015.
The appellant only
claimed payment for a period of (71) months.
[13]
Hefer v Van Greuning
1979 (4) SA 952 (A)
[14]
Madeleyn Inc sent a
letter on behalf of the respondents confirming the position as at
the 3
rd
of May 2010
[15]
Esso Standard SA
(PTY) LTD v Katz
1981
(1) SA 964 (A)
[16]
Cooper: Landlord &
Tennant Vol 2 at p 58
[17]
David Visser, Unjust
Enrichment: Juta 2008
[18]
Lobo
Properties v Express Left Co (SA) (Pty) Ltd
1961
(1) SA 704
(C) at 709 E-G
[19]
Hyprop Investments Ltd and
Another v NCS Carriers and Forwarding and Another
[2013] All SA 449
(GSJ) at
[52]
[20]
The
Prescription Act 68
of 1969
.
Section 13(1)
(h) provides that if the creditor or
the debtor is deceased and an executor of the estate in question has
not yet been appointed
the running of prescription is interrupted
subject to certain conditions. The important point is that the
summons was served
within (12) months of the appointment of the
executrix.
Sections 13
(1) (h) and (i) find application and
the appellant’s claim has clearly not prescribed.
[21]
Anglo Dutch Meats
(Exports) Limited v Blaauberg Meat Wholesalers CC
(A 599/ 0)
[2002] ZAWCHC 37
(27 June 2002)