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[2016] ZAGPJHC 157
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Southern Sun Hotel Interests (Pty) Ltd v Arcelormittal South Africa Ltd, In re: Arcelormittal South Africa Ltd v Mobile Telephone Networks (Pty) Ltd and Others (21660/2014) [2016] ZAGPJHC 157 (6 May 2016)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA,
GAUTENG
LOCAL DIVISION, JOHANNESBURG
CASE
NO: 21660/2014
DATE:
6 MAY 2016
In
the matter between:
SOUTHERN
SUN HOTEL INTERESTS (PTY)
LTD
...........................................................
Excipient
And
ARCELORMITTAL
SOUTH AFRICA
LTD
......................................................................
Respondent
In
re
the
matter between:
ARCELORMITTAL
SOUTH AFRICA
LTD
............................................................................
Plaintiff
And
MOBILE
TELEPHONE NETWORKS (PTY)
LTD
...................................................
First
Defendant
TRICOM
TELECOM (PTY)
LTD
............................................................................
Second
Defendant
BUWA
THETHA COMMUNICATIONS (PTY)
LTD
...............................................
Third
Defendant
SOUTHERN
SUN HOTEL INTERESTS (PTY)
LTD
............................................
Fourth
Defendant
SUMMARY
Summary:
Exception
application – requirements for excipiability –
non-excipiable
Arcelomittal
South Africa Ltd (“AMSA”) instituted action against the
defendants for damages. The fourth defendant (“SUN”)
excepted to the particulars of claim asserting that they do not make
out a cause of action. AMSA’s case was that it suffered
damages
as a result of a breach caused to its gas pipeline which is situated
on SUN’s property to which it held a pipeline
servitude. Mobile
Telephone Networks (Pty) Ltd (“MTN”) had its
telecommunications network tower situated on SUN’s
property
directly on AMSA’s servitude. The tower required upgrading and
while caring out the upgrading AMSA’s pipeline
was drilled into
causing a breach of the pipeline. AMSA argued that it suffered losses
relating to the repair of the pipeline and
an interruption of the gas
supply.
It
is AMSA’s case that SUN as the owner of the land was aware of
the existence of both the pipeline and of the servitude.
SUN had a
legal duty as the owner of the property to ensure that the approval
of the local authority is obtained for the upgrading
work in terms of
the National Building Regulations and Building Standards Act 103 of
1997 and with regard to the excavation entailed
by the drilling in
terms of the Regulation G1 (3). AMSA alleges that SUN owed it a legal
duty to notify it of the intended upgrading
work so as to afford it
an opportunity to safeguard its interests. SUN’s failure to
notify AMSA constituted negligence. AMSA
further alleges that had SUN
obtained the local authority approval and/or notified them of the
drilling work the subsequent damage
would not have occurred.
SUN’s
exception is based on the allegations that the facts pleaded by AMSA
in its particulars of claim does not indicate the
existence of a
legal duty and that there are no facts pleaded suggesting that SUN
breached the legal duty, SUN alleged AMSA relied
upon an omission and
pure economic loss. The court considered the principles applicable to
exceptions as held in a number of Supreme
Court of Appeal decisions.
Held: AMSA’s
particulars of claim established a
prima facie
breach of legal
duty by the fourth defendant (SUN) and such breach is the cause of
AMSA’s physical and economic damage and
was therefore
prima
facie
unlawful.
Held: AMSA’s
particulars of claim are not excipiable and do disclose a cause of
action.
Held:
The fourth defendant’s exception was dismissed with costs.
J
U D G M E N T
WEINER,
J
:
[1]
The
plaintiff (“AMSA”) instituted an action against the
defendants for damages. The fourth defendant (“Sun”)
has
excepted to the particulars of claim asserting that they do not make
out a cause of action.
BACKGROUND
[2]
AMSA
alleges that it suffered damages as a result of damage done to its
gas pipeline (“the pipeline”) which was situated
on Sun’s
property. AMSA held a pipeline servitude over such property.
[3]
A
telecommunications network tower (“the tower”) of the
first defendant (MTN) was situated on Sun’s property,
directly
on AMSA’s servitude.
[4]
The
tower required upgrading. According to AMSA, whilst performing the
upgrading work, those doing same drilled into the earth under
the MTN
tower and into AMSA’s pipeline causing a breach of the
pipeline. This caused damage to the pipeline as a result of
which
AMSA suffered losses relating to the repair of the pipeline and to
the interruption of the gas supply.
[5]
AMSA
contends that:
(a).
Sun,
as owner of the land, was aware of the existence of the pipeline and
of the servitude.
(b).
MTN
apparently liaised with Sun as owner of the property in regard to the
upgrading work.
(c).
Sun,
as owner of the property, accordingly bore the primary legal
responsibility to ensure that local authority approval was obtained
for the upgrading work in terms of the Regulations promulgated under
the National Building Regulations and Building Standards Act
[1]
(“the Act”) and for the excavation entailed by the
drilling in terms of Regulation G1(3).
(d).
Sun
owed AMSA a legal duty to notify it of the intended upgrading work to
afford it an opportunity to safeguard its interests.
(e).
Sun
failed to notify AMSA and was accordingly negligent.
(f).
Had
Sun obtained local authority approval and/or notified AMSA, the
drilling work and the subsequent damage would not have occurred.
(g).
Accordingly,
Sun is jointly and severally liable with the other defendants for
AMSA’s damages.
EXCEPTION
[6]
The
fourth defendant excepted to the particulars of claim on the basis
that firstly, the facts pleaded do not give rise to the legal
duty
contended for; secondly, the facts do not demonstrate that the
Regulations referred to in paragraph 25 of the particulars
of claim
(referred to in paragraph 5(c) above) find application to the
drilling application referred to in the particulars of claim;
thirdly, no allegation is made of wrongfulness; and fourthly, no
facts are pleaded that Sun breached the legal duty contended for.
Sun
further avers that no facts are pleaded to support the conclusion of
negligence and the grounds of negligence relied upon are
not set out.
LEGAL
PRINCIPLES APPLICABLE TO EXCEPTIONS
[7]
It
is for the excipient to persuade the court that upon every
interpretation which the pleading can reasonably bear, no cause of
action is disclosed. See
First
National Bank of Southern Africa v Perry NO
[2]
where
it was held:-
“
The
excipients have to show that the pleading is excipiable on every
interpretation that can reasonably be attached to it.”
[8]
The
object of an exception is to dispose of a case or a particular issue
to avoid a trial and the leading of unnecessary evidence.
In
Telematrix
(Pty) Ltd v Advertising Standards Authority
[3]
Harms
JA held as follows:-
“
Exceptions
should be dealt with sensibly. They provide a useful mechanism to
weed out cases without legal merit. An over-technical
approach
destroys their utility.
”
[9]
The
court must consider whether it is satisfied that the particulars of
claim, as a whole, are incapable of disclosing a cause of
action and
that no evidence that could be led could make them disclose a cause
of action.
Also
in
Sanan
v Eskom Holdings Limited
[4]
the
court held that:-
“
It
is trite law that an exception which can be cured by evidence at the
trial will not succeed.
”
[10]
In
short, AMSA contends that Sun has to satisfy the court that the
plaintiff’s particulars of claim are bad in law on any
reasonable interpretation and that no amount of evidence which can be
led at trial would cure the pleading.
[5]
[11]
Reference
is made in this regard to
Stols
v Garlicke & Bousfield
[6]
where
Gorven J cited the following from
Minister
of Law and Order v Kadir
[7]
in considering an
exception:-
“
It
must be assumed – since the plaintiff will be debarred from
presenting a stronger case to the trial Court than the one
pleaded –
that the facts alleged in support of the alleged legal duty represent
the high-water mark of the factual basis
on which the court will be
required to decide the question. Therefore, if those facts do not
prima facie support the legal duty
contended for, there is no reason
why the exception should not succeed
”.
AMSA
submits that, as held in
Axiam
Holdings Ltd v Deloitte & Touche,
[8]
courts have increasingly declined to decide the question of
wrongfulness on exception, save in the clearest cases that there
cannot
be any wrongfulness on the pleaded facts no matter what
evidence is led.
[12]
Gorven
J went on in
Stols
v Garlicke & Bousfield
to address four categories of cases in such exceptions:-
“
The
first aspect of the complaint must therefore be answered as follows.
Depending on the facts of a case, there are four potential
findings
concerning an exception to a pleading which claims that a party was
subject to a legal duty. First, it may be possible
to find that the
pleaded facts do not even prima facie support such a legal duty.
Secondly, it may be possible to find that the
pleaded facts clearly
support the existence of the legal duty contended for. Thirdly, it
may be possible to find that the pleaded
facts at least prima facie
support the existence of a legal duty even though it cannot be said
that they clearly establish this.
Fourthly, it may not be possible to
decide one way or the other on exception. In the first case the
exception must be upheld. In
the second, third and fourth cases, it
must be dismissed.
”
[9]
AMSA
contends that it cannot be said that the pleaded facts do not even
prima facie
support such a legal duty.
WRONGFULNESS/
OMMISSION/ PURE ECONOMIC LOSS
[13]
Sun
contends that where there is a dispute as to whether or not the facts
pleaded give rise to the legal duty and the conclusion
of
wrongfulness contended for, same can be challenged on exception.
Reference is made to
Telematrix
[10]
where Harms JA held:-
“
The
case does not therefore have to be decided on bare allegations only
but on allegations that were fleshed out by means of annexures
that
tell a story. This assists in assessing whether or not there may be
other relevant evidence that can throw light on the issue
of
wrongfulness. I mention this because, relying on the majority
decision in Axiam Holdings Ltd v Deloitte & Touche,
the
plaintiff argued that it is inappropriate to decide the issue of
wrongfulness on exception because the issue is fact bound.
That is
not true in all cases. This Court for one has on many occasions
decided matters of this sort on exception. Three important
judgments
that spring to mind are Lillicrap, Indac and Kadir. Some public
policy considerations can be decided without a detailed
factual
matrix, which by contrast is essential for deciding negligence and
causation.”
[14]
Where
the courts have considered exceptions taken on wrongfulness they
usually entail cases dealing with omissions that cause pure
economic
loss in circumstances not recognised by the law as founding a duty.
This is because positive conduct leading to physical
damage is
prima
facie
unlawful and no exception could therefore be taken where this is
alleged. See
Dodo
Boerdery Bpk v Transnet.
[11]
[15]
Sun
contends that loss caused by an omission can be actionable but only
where there is a legal duty to act positively. See
Boe
Bank Ltd v Ries.
[12]
[16]
AMSA
submits that it relies upon Sun having both a statutory duty and a
positive duty to act.
[17]
Sun
however, contends that AMSA seeks to hold it liable on the basis of
an omission. Reference was made to
Cape
Town Municipality v Bakkerud
[13]
where Marais JA stated:-
“
Society
is hesitant to impose liability in law for, as it is sometimes put,
“minding one’s own business”.
The
reticence is reflected in legal and judicial writing by propositions
such as no liability in delict for pure (or mere) omissions.
”
[18]
AMSA
contends that this is not a case based either on an omission or on
pure economic loss because there was positive conduct on
Sun’s
part in liaising with MTN in relation to the upgrading work thus,
taking it out of the category of “
pure
omissions
”.
Further, Sun had a statutory duty to act. AMSA further does not rely
on pure economic loss but instead alleges actual loss
arising out of
physical damage to the pipeline, for which it claims the cost of
repair.
[19]
In
Knop
v Johannesburg City Council
[14]
it
was held:-
“
Nor
can the mere allegation in the particulars of claim that the Council
was under a duty to take steps to prevent loss being caused
to the
plaintiff carry the day for him. The existence of the legal duty to
prevent loss is a conclusion of law depending on a consideration
of
all the circumstances of the case
.
”
It
was held further:-
“
The
issue raised by paragraph (b) of the grounds of exception is
accordingly whether, having regard to the considerations mentioned
above, the allegations of fact in the particulars of claim, if
assumed to be proved, are susceptible in law of sustaining a finding
that the Council was under a legal duty to the plaintiff, by
exercising care, to avoid loss being caused to the plaintiff. If they
are not, the plaintiff will be unable at the trial to discharge the
onus of proving that the Council’s conduct was wrongful…,
and the exception would be well-founded.”
[15]
AMSA’S
PARTICULARS OF CLAIM
[20]
To
determine whether the requisite legal duty exists, it is necessary to
analyse AMSA’s particulars of claim.
[21]
AMSA
relies upon the facts pleaded in paragraphs 25 to 34, and paragraph
10 which read as follows:
“
25.
The fourth defendant as owner of the property bore a primary legal
responsibility to ensure that local authority approval was
obtained
for the upgrading work in terms of the Regulations promulgated under
the National Building Regulations and Building Standards
Act 103 of
1977, and for the excavation entailed by the drilling in terms of
Regulation G1(1)(3
)(sic)
of
such Regulations.
26.
The fourth defendant, acting through employees, acting in the course
and scope of their employment with the fourth defendant,
was aware,
or ought as owner reasonably to have been aware of the existence and
location of the pipelines as these were designated
by the poles on
the property.
27.
The fourth defendant, acting through employees acting in the course
and scope of their employment with the fourth defendant,
was aware,
or ought as owner reasonably to have been aware, of the fact that the
plaintiff was holder of the servitude.
28.
The identity of the plaintiff as owner of the pipeline and as the
entity whose works were served by the pipeline was readily
ascertainable and ought reasonably to have been ascertained by the
fourth defendant as the owner on whose property the upgrading
work
was to be carried out, and with whom the licensee, intending to carry
out such upgrading work, liaised in relation to such
work.
29.
The factors pleaded in paragraph 10.1 operated with respect to the
legal duty owed by the fourth defendant to the plaintiff.
30.
In the circumstances the fourth defendant owed the plaintiff a legal
duty to notify it of the intended upgrading work and to
afford it an
opportunity to safeguard the interests of its pipeline and of its
business served by the pipeline with respect to
the intended
upgrading work.
31.
Had the fourth defendant acted to obtain approval from the local
authority as owner in terms of the Regulations pleaded above,
the
plaintiff’s interest in having the drilling not occur would
have been ascertained and the drilling would not occurred.
32.
Had the fourth defendant notified the plaintiff of the upgrading
work, the plaintiff would have made it clear to the first defendant
and/or the fourth defendant that only hand excavations, and no
drilling, should be performed upon the servitude.
33.
Had the fourth defendant notified the plaintiff of the upgrading
work, the drilling would not have occurred and the plaintiff
would
not have suffered the plaintiff’s damages.
34.
The failure by the fourth defendant to ensure that the plaintiff was
notified of the intended upgrading work was negligent”.
Paragraph
10 of the particulars of claim reads:
“
10.The
conduct of the employees who drilled into the pipeline was in breach
of a legal duty owed by them to the plaintiff, in that-
10.1.1.
the interests of the owner of the pipeline, the existence, location
and nature of which were indicated by the poles, and
of the entity
whose works would be serviced by such pipeline, would obviously be
peculiarly affected by any activity that could
damage the pipeline;
10.1.2.
any activity carried out directly upon the area where the poles
indicated a gas pipeline to run, such as could damage such
pipeline,
would lead to loss being suffered by the owner of the pipeline and by
the party whose business the pipeline served with
gas, such party
being in the nature of things limited to single entity or a select
group of potential entities with a peculiar
interest in being served
by the pipeline;
10.1.3.
the likely nature of the loss that would be suffered by such entity
would be, for the owner of the pipeline, the reasonable
costs of
repair of the pipeline, and for the entity whose business was served
by the pipeline, the losses suffered in that entity’s
business
through the absence of a supply of gas caused by any damage to the
pipeline for as long as the pipeline was unable to
serve such
business due to the damage and the need for it to be repaired”
.
[22]
As
set out above AMSA’s claim is based on Sun’s knowledge as
owner of the property of the existence and location of
the pipeline
and of knowledge of AMSA’s identity as owner thereof. It is
also alleged in paragraph 28 that the licensee,
intending to carry
out the work, liaised with Sun. In paragraph 10 reference is made to
the conduct of the employees who drilled
into the pipeline and the
breach of the legal duty owed by them to AMSA. This is the
claim against the first, second and
third defendants (which is
incorporated by reference to apply to Sun as well).
THE
REGULATIONS
[23]
AMSA
relies, in paragraph 25 of the particulars of claim, generally on the
Regulations promulgated under the Act. In addition, it
relies
specifically on Regulation G1(3). Regulation G1 refers to an
“excavation” related to a building. There is no
definition of excavation in the Regulations. Giving it its ordinary
meaning, Sun contends that it relates to and is concerned with
an
excavation to a building which is of the usual kind; that is, it
precedes the erection of a building and which is done for purposes
of
the placing of foundations. Sun argues that the drilling activity
referred to in the plaintiff’s particulars of claim
does not
constitute an excavation such as that contemplated under Regulation
G1(3). Sun further contends that the plaintiff has
failed to allege
any facts which could demonstrate that the drilling activity referred
to in the particulars of claim qualified
as an excavation for
purposes of the Regulation. AMSA however submits that the allegation
in paragraph 25 is sufficient to qualify
the drilling activity as an
excavation for purpose of the Regulation
[24]
Sun
contends that in considering whether or not the facts in their
particulars of claim would give rise to the legal duty and result
in
the legal liability contended for, regard should be had to the
following:-
(a).
there
was no relationship between AMSA and Sun;
(b).
AMSA
sought to protect its pipeline by means of clearly visible concrete
poles and a large sign. Therefore, Sun and its employees
would have
been entitled to assume that such measures would be effective and
that any intended drilling activity would have been
cleared with the
plaintiff and such activity would be undertaken so as to avoid any
damage to the pipeline;
(c).
Sun
is a company conducting the business of a hotel. The legal duty of
any kind contended for by AMSA would impose an unwarranted
burden on
Sun and its employees;
(d).
it
is not alleged and cannot be alleged that Sun or any of its employees
were aware that the intended drilling operation would as
a fact
breach the pipeline; and
(e).
further,
no facts are pleaded to indicate that Sun or its employees knew that
the plaintiff was unaware of the drilling activity
and that it had
not been cleared with the plaintiff beforehand.
[25]
Sun
contends that the plaintiff’s claim relies solely upon Sun’s
breach of the legal duty to assure that the plaintiff
was notified of
the drilling. In paragraph 30 of the particulars of claim, it is
alleged that, Sun owed AMSA a legal duty “
to
notify it of the intended upgrading work and to afford it an
opportunity to safeguard the interests of its pipeline and of its
business served by the pipeline with respect to the intended
upgrading work
”.
[26]
The
allegation of negligence in paragraph 34 is that “
the
failure by the fourth defendant to ensure that the plaintiff was
notified of the intended upgrading work was negligent
”.
Sun contends that the particulars of claim lack an allegation that
the legal duty contended for had been breached, as the
facts pleaded
do not relate to the negligence relied upon in paragraph 34.
[27]
Sun
on the other hand contends that these legal duties are not the legal
duties relied upon by AMSA in is particulars of claim.
Reference is
made in particular to paragraph 34 wherein the plaintiff relies to
the failure by Sun to
ensure that
AMSA was notified of the intended upgrading work
and
that this failure amounts to negligence [Emphasis added].
[28]
AMSA
in this regard relies upon the statutory obligations imposed on Sun,
as owner, by the Regulations referred to. The primary
legal
responsibility, as owner, was to ensure local authority approval was
obtained for the upgrading work.
[29]
AMSA
also refers to Regulation A22(1)(a) in its Heads of Argument which
was not specifically referred to in the particulars of claim.
Such
Regulation provides:-
“
No
work in connection with the erection or demolition of any building
shall be commenced unless notice in the form required by the
local
authority has been given to such local authority by the owner of such
building stating that the date on which such erection
or demolition
will commence.
”
[30]
Although
this Regulation is not specifically pleaded, reference is made
generally to the Regulations as a whole. The facts pleaded
in
paragraph 31 refer to the obligation on Sun to notify the local
authority of the work to be done.
[31]
Sun
contends that AMSA has not sufficiently identified the Regulation(s)
upon which it relies. AMSA, on the other hand, submits
that it
clearly identified Regulation G, referred in general to the relevant
Regulations and pleaded sufficient facts to substantiate
reliance on
Regulation 22. See
Yannakou
v Appollo Club
[16]
where Trollip JA held:-
“
Hence,
if he relies on a particular section of a statute, he must either
state the number of the section and the statute he is relying
on or
formulate his defence sufficiently clearly so as to indicate that he
is relying on it (cf. Ketteringham v City of Cape Town,
1934 AD 80
at
p. 90).
”
[17]
[32]
AMSA
contends that for the purposes of any excavation related to the tower
Sun was obliged in terms of Regulation G 1(1)-(5) to:
(a).
take
adequate precautionary measures to ensure that the safety and
stability of the gas line was maintained; and
(b).
to
obtain the prior written authorisation of the local authority for the
upgrading work due to the fact that such work was likely
to impair
the safety and stability of the gas pipeline and the service it
entailed. This is covered in paragraph 30, 31, 32 and
10 of the
particulars of claim. Sun argued that there is no allegation that it
is the owner of building (to place its obligation
within Regulation A
22(1)(a)). However, it concedes that it conducts the business of a
hotel.
[33]
However,
if one has regard to all of the allegations in paragraph 10 and
paragraphs 25 - 34 taken together, a reasonable interpretation
is
that the legal duties contend for together with the statutory duties
referred to were wrongfully breached. This conduct (the
breach of
both the positive and statutory duties referred to) is the negligent
conduct relied upon. AMSA pleads the existence of
a legal duty to
notify it. It pleads a failure to so notify. It also pleads other
duties relating to various cautionary measures
and the requirement of
obtaining written authorisation.
[34]
AMSA
alleges that this is a clear case where the legal duty is established
by referring to the facts in paragraph 25 to 34 and incorporating
paragraph 10. In addition to the legal duty pleaded, AMSA contends
that a statutory duty was imposed upon Sun in terms of the
Regulations and that that statutory duty was breached. It is
submitted that the statutory duty arising from the Regulations, and
the peculiar facts pleaded in relation to the pipeline, demonstrates
AMSA’s clear and particular interests as an identifiable
plaintiff, thus establishing Sun’s legal duty. Together with
the fact that there was physical damage to AMSA’s property,
this places the case beyond the realm of one which is reliant on an
omission causing pure economic loss. AMSA submits that Sun
cannot
contend that there is not even a
prima
facie
case of a legal duty established.
[35]
Accordingly,
it pleads a breach of the various legal duties contended for. AMSA
contends that it need plead only the
facta
probanda
and not the
facta
probantia
– the test being whether there is sufficient particularity to
enable the defendants to plead thereto. See
Nel
and Others NNO v McArthur and Others.
[18]
AMSA contends that the allegations of negligence in the particulars
of claim are extensive and are incorporated in paragraphs 10
and 25
to 34, which set out in considerable detail the degree to which the
loss was occasioned by AMSA‘s breach of its legal
duties.
[36]
In
International
Shipping Co (Pty) Ltd v Bentley
[19]
the Supreme Court of Appeal dealt with the legal duty and the breach
thereof in order for liability to ensue, Corbett CJ held:
“
In
order for respondent to be held liable to International for his
reporting as auditor… it is necessary for International
to
show not only that he acted negligently in so reporting, but also
that he acted unlawfully, i.e. in breach of a legal duty owed
to
International
not to report
incorrectly on the financial statements.
[In
the court a quo]
Goldstone J came to the
conclusion that the following facts and considerations established
such a legal duty:
(a)The
statutory duty upon the defendant to furnish his report on the
financial statements: (s 300 of the Act)…;
(b)
the nature and context of the relationship between the parties
created a direct link between the plaintiff and the defendant;
(c)
the defendant was aware that in monitoring and reviewing the
facilities of the Deals Group, the plaintiff would rely upon the
financial statements in a serious and business context;
(d)
there are no considerations of public policy which should induce the
Court to deny liability in a case such as the present.”
I
agree that these circumstances do create such a duty and I did not
understand respondent’s counsel to dispute this”
.
[20]
Although
this cause is not on all fours with the present case it re-enforces
the principle that the defendants acted unlawfully
i.e. in breach of
a legal duty owed to the plaintiff.
CAUSATION
[37]
In regard to causation, AMSA relies upon
the allegations in 10.1.1 and 25 – 33. The averments are that
Sun had primary legal
responsibility and a statutory legal duty to,
inter alia,
inform
AMSA of the work to be done. Had it done so, the local authority
would have been approached. Such approach would have enabled
AMSA to
protect its property rights. Sun’s failure to do so was
negligent and AMSA suffered the physical and financial loss
which it
did. In
International Shipping
,
the Court held:
“
As
has previously been pointed out by this Court, in the law of delict
causation involves two distinct enquiries. The first is a
factual one
and relates to the question as to whether the defendant’s
wrongful act was a cause of the plaintiff’s loss.
This has been
referred to as “factual causation”. The enquiry as to
factual causation is generally conducted by applying
the so-called
“but-for” test, which is designed to determine whether a
postulated cause can be identified as a causa
sine qua non of the
loss in question. In order to apply this test one must make a
hypothetical enquiry as to what probably would
have happened but for
the wrongful conduct of the defendant. This enquiry may involve the
mental elimination of the wrongful conduct
and the substitution of a
hypothetical course of lawful conduct and the posing of the question
as to whether upon such an hypothesis
plaintiff’s loss would
have ensued or not. If it would in any event have ensued, then the
wrongful conduct was not a cause
of the plaintiff’s loss;
aliter, if it would not so have ensued. If the wrongful act is shown
in this way not to be a causa
sine qua non of the loss suffered, then
no legal liability can arise. On the other hand, demonstration that
the wrongful act was
a causa sine qua non of the loss does not
necessarily result in legal liability. The second enquiry then
arises, viz whether the
wrongful act is linked sufficiently closely
or directly to the loss for legal liability to ensue or whether, as
it is said, the
loss is too remote. This is basically a juridical
problem in the solution of which considerations of policy may play a
part. This
is sometimes called “legal causation”. (See
generally Minister of Police v Skosana 1977 (1) SA 31
(A),
at 34E – 35A, 43E – 44B; Standard Bank of South
Africa Ltd v Coetsee 1981 (1) SA 1131 (A), at 1138 H
-
1139C; S v Daniëls en ’n Ander 1983 (3) SA 275
(A), at 331B – 332 A; Siman & Co (Pty) Ltd
v Barclays
National Bank Ltd
1984 (2) SA 888
(A) at 914 F – 915 H.”
CONCLUSION
[38]
At the exception stage the court must
decide whether, on any reasonable interpretation and with the
evidence which might be led
at trial, Sun can satisfy the court that
AMSA’s particulars of claim do not disclose a cause of action.
[39]
Whether or not AMSA will be able to prove
the elements required to establish its delictual claim at the trial,
is not for this court
to determine.
[40]
Having regard to the analysis set out
above, I am of the view that the plaintiff has at least
prima
facie
established a wrongful breach of
a positive legal duty to act on Sun’s behalf. Such breach
resulted in physical and economic
damage and was therefore
prima
facie
unlawful.
[41]
Accordingly, the following order is made:-
(a).
The fourth defendant’s exceptions are
dismissed.
(b).
The fourth defendant is to pay the
plaintiff’s costs.
S
E WEINER
JUDGE
OF THE HIGH COURT OF
SOUTH
AFRICA (GLD)
Appearances
For the
Plaintiff: Advocate F A Snyckers SC
Advocate
N K Tsatsawane
Instructed by:
Cliffe Dekker Hofmeyer Inc.
For the
Defendant: Advocate MC Maritz SC
Advocate GF Heyns
Instructed by:
Gildenhuys Malatji Inc.
Date of hearing:
22 February 2016
Date of Argument:
22 February 2016
Date
of Judgment: 6 May 2016
[1]
103
of 1977
[2]
2001
(3) SA 960
(SCA) at page 965 D-G
[3]
2006
(1) SA 461
(SCA) paragraph 3
[4]
2010
(6) SA 638
(GSJ) at page 645 D
[5]
S
A Defence and Aid Fund v Minister of Justice
1967 (1) SA 31
(C).
[6]
2012
(4) SA 415
(KZP)
[7]
[1994] ZASCA 138
;
1995
(1) SA 303
(A) at page 318
[8]
2006
(!) SA 237 (SCA)
[9]
Supra
fn 6 at paragraph 12
[10]
Supra
fn 1 at paragraph 2
[11]
2005
(5) SA 490
(SCA) at paragraph 12
[12]
2002
(2) SA 39
(SCA) at paragraph 12
[13]
2000
(3) SA 1049
(SCA) at paragraph 8
[14]
1995
(2) SA 1
(AD) at 27F-G
[15]
Supra
at paragraph 27J-28A
[16]
1974(1)SCA
614 A at paragraph 623
[17]
See
also
Vosal
Investments (Pty) Ltd v City of Johannesburg & others
[2009] JOL
23873
(GSJ)
and
Fundstrust
(Pty) Ltd (in liquidation) v Van Deventer
1997 (1) SA 710
(SCA)
[18]
Nel
and Others NNO v McArthur and Others
2003 (4) SA 142
(T) at paragraph 157H-158B
[19]
1990
(1) SA 680
(A)
[20]
Supra
at p694 at paragraph D-F