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[2020] ZAGPJHC 134
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Ergo Mining (Pty) Limited v Ekurhuleni Metropolitan Municipality and Others (2014/45277) [2020] ZAGPJHC 134; [2020] 3 All SA 445 (GJ) (8 June 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
LOCAL DIVISION, JOHANNESBURG
(1)
REPORTABLE:
YES
(2)
OF
INTEREST TO OTHER JUDGES:
TES
(3)
REVISED.
CASE
NO: 2014/45277
In
the matter between:-
ERGO
MINING (PTY) LIMITED
Applicant/
First Defendant
and
EKURHULENI METROPOLITAN
MUNICIPALITY
Respondent/
Plaintiff
ESKOM
HOLDINGS SOC
LTD
Second
Defendant
JUDGMENT
SPILG, J
INTRODUCTION
1. This is an opposed application for leave
to amend a plea and claim in reconvention.
It will be useful
to briefly sketch the nature of the case.
2. Ekurhuleni Metropolitan Municipality, as
plaintiff sued Ergo Mining (Pty) Ltd for payment of close to
R73.5
million plus interest in respect of charges for electricity which it
alleges it has been supplying to Ergo at its Ergo plant
(“
E
Plant”
) since the end of November 2014. Ergo denied
the claim and raised a number of defences which included a denial
that the Municipality
had been supplying it with electricity
[1]
.
3. In its plea Ergo maintains that it receives its
supply of electricity from Eskom Holdings SOC Ltd and has
been paying
over to the Municipality only the amount it claims it is liable for
in terms of Eskom’s Megaflex tariff rates
- the Municipality’s
claim therefore is the difference between the Eskom tariff and what
it has been charging Ergo.
4. At the time it pleaded Ergo also instituted a
claim in reconvention for an amount of just under R89.5 million.
This
represents the difference between the amount it had in fact paid the
Municipality between the period December 2008 to November
2014 and
the amount which the Municipality was liable to pay over to Eskom,
being also the amount that it, Ergo, would have been
obliged to pay
Eskom directly in terms of the Megaflex tariff.
5. The causes of action relied on in the existing
counterclaim were based on unjust enrichment under the common
law in
terms of the
condictio sine cause
, alternatively under the
common law infused with the constitutional protection afforded to
property rights under s 25(1), (2) and
(3) of the Constitution.
This was expressed
as follows in para 48 of the counterclaim
“
All of
the payments …. were made by the defendant without just cause
and in the bona fide and reasonable but mistaken belief
that the
defendant was legally obliged, in respect of electricity supplied to
and consumed at the Ergo Plant, to pay to the plaintiff
the amounts
purportedly levied by the plaintiff in terms of the plaintiff’s
by-laws.”
The underlying
basis was a limitation on the Municipalities lawful entitlement to
raise a charge for electricity consumption by
Ergo at its E plant in
excess of that which Eskom would have charged Ergo directly for one
of several reasons pleaded in the alternative.
[2]
6. In response the Municipality raised a special
plea of prescription on the grounds that the amount claimed
was a
debt within the meaning of the
Prescription Act 68 of 1969
. It also
pleaded over on the merits.
7. In June 2018 Ergo gave notice under R 28(1) of
its intention to amend the plea and counterclaim. Plaintiff
objected
to the amendments on a number of grounds. This led to the plaintiff
delivering a revised notice of intention to amend
at the end of
August 2018.
The Municipality
remained dissatisfied and delivered a fresh notice of objection in
September 2018. Ergo responded with its present
application for leave
to amend under R. 28(4).
GENERAL
8. An amendment will generally be granted to enable
the real issues between the parties to be properly ventilated.
It
follows that a pleading which does not disclose a cause of action or
defence will not qualify or where it is self-evident that
no case
could be made out in fact or law. An amendment will also not be
granted if it results in prejudice that cannot be cured
by an award
of costs or a postponement. In this regard an amendment to cure a
tactical advantage which the other party may enjoy
is not the type of
prejudice which will suffice and although an exception may be raised
if the other party fails to cure a pleading
which is vague and
embarrassing the requirement of prejudice remains.
Prejudice will
however arise if an admission is sought to be withdrawn without a
reasonable explanation; if only because it is pointless
running a
trial if the party concerned is unable on paper to explain away a
material statement against interest.
Finally, for
present purposes, provided the substance of the matter claimed in an
amendment, as opposed to say its precise legal
characterisation, is
set out in the original claim then it will remain the same “
debt”
for purposes of avoiding prescription. A claim for contractual
damages may be amended by introducing, in the alternative or even
in
substitution, a claim based in delict if it arises out of the same
set of events, even though in the latter case elements such
as
negligence and a duty of care would have to be introduced
[3]
.
Colman J in
Mazibuko v Singer
1979 (3) SA 258
(W) at 265H-266A said in
relation to cases where an amended cause of action was sought to be
introduced that:
'The effect of those cases, as I
understand them, was that in deciding whether prescription was
interrupted, in relation to a particular
claim, by prior process
served during the prescriptive period, one looks to see whether in
the earlier process the same claim was
preferred, not whether the
same cause of action (or any cause of action) was made out in the
earlier process. As pointed out in
one of the cases, it is inaction,
not legal ineptitude, which the
Prescription Act is
designed to
penalise.
It seems to me that in an inquiry of
this kind the expression "cause of action" can be
misleading. Its most common use
is as a technical term relating to
pleading, and in that sense it carries a connotation which is
inapposite when one is looking
to see whether or not the running of
prescription has been interrupted. It is true that Trollip J (as he
then was) used the term
"cause of action" when dealing with
a question of prescription and its interruption in Schnellen v
Rondalia Assurance
Corporation of SA Ltd
1969 (1) SA 517
(W). But, he
was not, I think, using the expression in its narrow technical sense;
what he meant by it was, I think, something
of a broader nature which
is sometimes referred to as a plaintiff's "right of action"
or as "the basis of his claim"
“
.
GROUNDS FOR OBJECTING TO AMENDMENTS
TO THE PLEA
Introducing an excipiable pleading
(paras 10.5 -10.7)
9. The Municipality’s first objection
is to the introduction in paras 10.5 to 10.7 of an allegation
that
Ergo and its “
predecessors in title
” at the E
Plant were supplied with electricity by Eskom and that they had been
supplied with electricity at another plant
of theirs, which also fell
within the area of the Municipality, in terms of a contract with
Eskom. These were among the allegations
made from which Ergo sought
to draw two conclusions; firstly that the supply of electricity was
“
accordingly”
excluded from the Municipality’s
licence at both plants and secondly that the Municipality was not
licenced to supply or sell
electricity in respect of the second
plant. It is contended that these conclusions do not support a
defence or that the allegations
themselves are vague and
embarrassing, and despite notice have not been cured.
10. It is evident that Ergo’s proposed amendment is intended to
answer the Municipality’s allegation that an application
by
Ergo for the connection of the supply of electricity constituted a
consumer agreement for the supply of electricity as defined
by the
Electricity By-laws. It is also intended to raise the defence that if
such an agreement was constituted then it is unlawful.
11. The defence as set out in the current plea is a rolled up one
containing at best a denial that the written application constituted
a consumer agreement.
The proposed
amendment is intended to be a plea in the alternative should the
court find that the application form constituted an
agreement.
It comprises six subparagraphs which according to Ergo’s
heads of argument amount to a plea that such
an agreement is unlawful
and that this is substantiated by the allegations made in the
subparagraphs 10.5 and 10.6.
[4]
12. Subparagraphs 10.5 and 10.6 refer to a state of affairs which is
alleged to have exited at all material times since the 1980s,
where
the defendant and its predecessors in title at the E Plant were
supplied with electricity by Eskom, that they had also been
supplied
with electricity from Eskom at their other plant which also fell
within the area of the Municipality and that such supply
to this
other plant was in terms of a contract.
It is these
averments which, according to counsel who drafted them, constitute
the factual matrix from which the conclusion is sought
to drawn in
para 10.7 that the agreement, if proven, would in any event be
unlawful.
Para 10.7 reads:
“
In the circumstances, the
plaintiff was not licensed to supply or sell electricity to the
defendant at the Ergo plant and the consumer
agreement relied upon by
the plaintiff was unlawful”
13. The allegations contained in para 10.5 and 10.6 would be relevant
when considering whether the parties intended the application
to
constitute an agreement for the Municipality to supply electricity as
envisaged by the legislation as opposed to it being a
mere conduit
between Eskom and Ergo.
[5]
14. The allegations are also material to show that throughout the
period relevant to a consideration of the applicable legislation,
it
was Eskom which supplied and sold electricity to Ergo at its plants
which fell within the jurisdiction of the Municipality.
As appears from the
earlier judgment delivered during October 2019 in relation to the
same subject matter, albeit brought on motion
by Ergo against the
Municipality for an interdict and declarators, the latter’s
right to sell, supply or distribute was dependent
on the consumer not
being an existing customer of Eskom. Moreover in the motion
proceedings the Municipality has pertinently relied
on a long
standing relationship with regard to the supply of electricity
between it and Ergo as well as Ergo’s predecessors
in title
[6]
.
One can therefore anticipate that at the trial the Municipality
itself will rely on the earlier relationships.
15. It is therefore evident that paras 10.5 to 10.6 are factual
allegations intended to demonstrate that Schedule 1 to the licence
NERSA (the National Energy Regulator of South Africa) issued to the
Municipality which gives it the authority to supply electricity
did
not extend to Ergo and that any relationship that did exist was not
one to which the Municipality’s licence could extend.
The relevant part
of the Municipality’s licence to supply electricity, as pleaded
by Ergo in para 10.4 of its proposed amendment,
reads “
Customers being supplied by Eskom or any other Licensed
Distributor at the date of commencement of this licence are
excluded
from this licence.”
.
16. Accordingly the Municipality’s objection that it is unclear
how the supply of electricity at the other plant is relevant
is
answered on the basis that it is an allegation of fact on which Ergo
intends to rely, both in support of its contention and
to rebut the
Municipality’s case to the contrary.
Pleading these
alleged facts also avoids the risk of the Municipality contending
that the allegations relied on did not form part
of the pleadings and
should not be admitted into evidence when the basis and rationale for
the discussions and alleged agreement
between the Municipality and
Ergo’s predecessors are sought to be led in evidence or dealt
with in cross-examination. Whether
the allegations carry any
weight in the context of the evidence as a whole is a different
matter which should be left for the trial
judge to determine in due
course.
17.
Moreover it is the Municipality which first relied
on its relationship with Ergo’s predecessor in title to support
its contentions.
It cannot now be heard to say that it is irrelevant.
More particularly when the date that the Municipality’s licence
commenced
would have been at the time Ergo’s predecessor in
title owned the property where the plant is situated. In the earlier
judgment
I considered that the term “
customer
” in
relation to both Eskom and the Municipality’s licences could
only mean the customer who owned or occupies the property
in question
and its predecessor or successor in title.
[7]
18. In my view the first set of objections which relates to paras
10.5 to 10.7 cannot succeed.
Withdrawal of admission and
excipiable as no defence raised or vague and embarrassing (para 13.2)
19. The Municipality alleges in its particulars that from the end of
November 2014 the defendant made only partial payment in respect
of
each account and has failed, refused or neglected to make payment of
the balance.
20. The current plea;
a. denies a liability to pay any amount in respect
of electricity charges levied against it “
in respect of
electricity supplied to the property”
and refers to
its counterclaim;
b. states that from 30 November 2014 it has been
paying “
to the plaintiff the amounts charged by Eskom
to the plaintiff in respect of electricity consumed by the defendant”
Ergo alleges that
it has done so in order “
not to enrich itself unjustly at
the expense of the plaintiff”
21. The amendment sought to be introduced raises an alternative
defence if the court should find that Ergo is liable to pay any
amount in respect of electricity supplied to the property. The
proposed alternative plea avers that;
a. The electricity was supplied in the absence of a
consumer agreement between it and the Municipality;
b. The permissible charges are limited to one under
a particular By-law, identified as By-law 3(1) and referred
to by the
Municipality as
section 3(1)
of the By-law, which is no more than;
i. the amount which the Municipality was liable to
pay to Eskom for the electricity supplied; alternatively,
ii. the amount which would have been due by Ergo to
the Municipality had the premium in the latter’s Tariff
J been
payable to it in respect of electricity consumed at the E Plant.
22.
Adv Hulley
for the Municipality contends that Ergo
had accepted, when extracting an undertaking not to disconnect the
electricity, accepted
that it, Ergo, was challenging the
existence of an agreement, not that in the absence of an agreement
the Municipality could
charge no more than the amounts Ergo contend
for in the proposed amendment.
23. I am afraid that I do not read the existing plea or the terms of
the undertaking which was sought from the Municipality
in
that way. The undertaking was sought not on the basis of making a
concession of any fact. The undertaking was sought on an insistence
that if the Municipality did not provide it then Ergo would approach
the court urgently to interdict the threatened cut off.
24. Moreover it cannot be contended that when Ergo sought the
undertaking it was accepting that the Municipality may have had some
right it could legitimately exercise to terminate the supply. It is
evident that Ergo was not prepared to take the risk of approaching
only Eskom to ensure that the supply of electricity was not
interrupted since the Municipality had the physical ability to do so.
But this did not amount to a concession that the Municipality had any
legitimate entitlement to charge Ergo, at least in any amount
greater
than would have been payable to Eskom. In short, as
Adv Chaskalson
argued, the undertaking was sought because Ergo was concerned
about the Municipality interfering with the supply of electricity to
its plant, not Ergo’s obligation to pay the amounts claimed by
the Municipality; and this is evident from the terms of Francis
J’s
order in that regard..
25. If regard is had to the manner in which Ergo has raised its
defences both in the existing plea and the motion proceedings
themselves it would be stretching the issue to leverage an admission
of the nature sought. The number of subparagraphs that the
Municipality’s counsel found necessary to explain “
the
substance of the municipality’s complaint”
that there
was a withdrawal of an admission speaks volumes- no less than five
spanning two full pages. The argument is tenuous at
best.
26. Finally, the issue is a real and live one which should be
ventilated, particularly where there is a ready explanation dealing
with seeking and obtaining the undertaking from the Municipality not
to cut of the electricity supply.
27. The second complaint to the introduction of para 13.2 is that it
fails to set out a proper defence in law or remains vague
and
embarrassing despite Ergo being given an opportunity to remedy the
complaint.
28. The Municipality argues that the allegations which Ergo wishes to
introduce are not borne out by
s 3(1)
of the By-laws read with
ss
3(2)
and
4
(2).
29. However Ergo contends that
s 3(1)
is intended to deal with
the theft of electricity, not the unique set of facts that this case
presents. It also contends that the
term “
cost
” on
which the Municipality heavily relies is not the cost as charged to
Ergo, particularly as there are a broad range of
tariffs to which the
term might be applied.
30. I would hesitate in making any findings one way or the other as I
cannot be satisfied that some evidence may not be relevant
or that
all the permutations which may require to be considered have been, or
can necessarily be addressed, at the pleading stage.
I am however
satisfied that the Municipality understands the issue and therefore
is not prejudiced.
31. Accordingly the objection to this paragraph must also fail.
Excipiable pleading and contradictory
averments (para 13.4)
32. Ergo also seeks to amend the allegation that the amounts it has
paid since November 2014 for electricity consumed were made
so as not
to enrich itself.
33. The amendment wishes to add that such payments “
discharged
any liability to the plaintiff imposed on it under By-law 3(1) of the
Plaintiff’s electricity By-laws”
.
34. The first objection repeats that raised in respect of para 13.2,
namely that the By-law does not support the contention advanced.
I
have already indicated that broader issues of fact or law may be
involved which defeats the raising of an exception.
35. The second objection is that the averment would contradict the
principle denial that the plaintiff ever supplied electricity
to the
E Plant or that Ergo is liable to pay any sum to the Municipality in
respect of charges levied by it for electricity supplied
to that
property.
36. I do not agree that the words sought to be introduced contradict
para 12.1 of the plea. That paragraph is a denial that the
Municipality is the supplier of the electricity consumed by Ergo
while para 13 is concerned with whether or not there was an agreement
or legislative obligation imposed on Ergo to pay the Municipality for
its consumption of electricity. Ergo has never denied that
it has
consumed electricity; the issues are from whom, how that arose and at
what cost.
37. I agree with Adv Hulley that the words sought to be introduced
may be understood to contradict the denial of liability to pay
“
any
sum
” whatsoever in respect of electricity charges levied. I
do not believe that the allegation sought to be introduced (that the
payments made would be in discharge of a
section 3(1)
liability) are
rendered compatible with para 13.1 of the Plea by simply prefacing
the word “
liability
” with “
any”
.
Ergo contends that
the words sought to be introduced covers the primary defence raised
in para 13.1, which is to the effect that
Ergo never incurred a
liability to pay any sum whatsoever to the Municipality
[8]
.
I disagree.
38. I am reluctant to require an amendment, which inevitably will
follow, where I believe it is possible to construe the word “
any
liability”
to mean “
any liability that may be
found by the court”
. Although it may not have been
argued in this way, the implying such wording would provide the
necessary internal limitation
equivalent to the usual “
in
the alternative”
formula.
39. I therefore agree that the words sought to be introduced are
vague, but I consider the issue to be
de minimis
and that it
is unnecessary to require a formal revision on the basis, as
indicated in the previous paragraph, that the words “
that
may be found by the court“ should
be read into the proposed
amendment immediately after the words “
discharged any
liability”
.
GROUNDS FOR OBJECTING TO INTRODUCTION
OF CLAIMS C AND D TO THE COUNTERLAIM
The issues
40. I mentioned earlier that the current formulation of Ergo’s
counterclaim, as set out is based on an unjustified enrichment
claim
and in the alternative a remedy based on the development of the
common law in respect of such a remedy where constitutionally
protected property rights are infringed by an organ of State. These
have now been split into Claims A and B.
41. The proposed Claims C and D are pleaded in the alternative to the
existing claims, and to each other. Their purpose is to introduce
an
allegation that the amount paid by Ergo to the Municipality exceeds
the maximum amount which the Municipality is legally entitled
to
recover from Ergo should a court find that
s 3(1)
of the By-laws
apply. Save for that, Claim C follows Claim A while Claim D follows
Claim B.
42. The Municipality raised five objections:
a. The exception previously raised in relation to
the plea with regard to the correct interpretation of
s 3(1)
of the
By-laws.
I have already
found that evidence and other legislation may be introduced which
precludes the issue being decided on the narrow
legal point raised by
the Municipality in what amounts to an exception.
b. The claims sought to be introduced are for
amounts which arose more than three years ago and therefore have
become prescribed;
c. Tariff J on which Ergo seeks to rely was not in
existence at the relevant time
d. Certain amounts in Claim C and D are incorrectly
claimed
e. Claim D lacks averments to sustain a cause of
action or are vague and embarrassing
Prescription
43. The prescription point has two legs. Essentially the one is that
the proposed amendments cannot piggy-back on the exiting claims
in
order to avoid the running of prescription as the
facta probanda
are different. The other is that even if they can, both they and
the first set of claims have become prescribed.
44. Adv Hulley accepts that the proposed claims are also based on an
enrichment action or a constitutionally based extension of
one.
He however argues that Ergo has introduced an essential fact that was
not previously put forward and which has created
a different “
right
of action”.
45. In support of the submission reliance is placed on the leading
case of
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
(A) at
825F and 838D-H and 839F-G.
It is to be born in
mind that the majority decision in
Evins
did not consider the
judgment of Colman J in
Mazibuko
cited earlier. Trollip J in a
minority concurring judgment did and said the following at
825F-826A :
“
I prefer
to use the term 'right of action' to 'cause of action' because, I
think, the former is strictly and technically more legally
correct in
the present context (cf Mazibuko v Singer
1979 (3) SA 258
(W) at
265D
- G).’Cause of action' is ordinarily
used to describe the
factual basis, the set of material facts, that begets the plaintiff's
legal right of action and, complementarily,
the dependant's 'debt',
the word used in the
Prescription Act. The
term, 'cause of action',
is commonly used in relation to pleadings or in statutes relating to
jurisdiction or requiring prior written
notification of a claim
before action thereon is commenced. But it is not used in either the
CMVI Act or the
Prescription Act. And
its use in the present context
may possibly lead to erroneous reasoning. For in claims in delict for
damages under the common law
or for compensation under the CMVI Act,
I am not sure that it necessarily follows that, because one factual
basis differs from
another in some respect or respects, separate or
different rights of action arise; on the contrary, both cases may
nevertheless
beget only one right of action or debt, eg one for the
plaintiff's entire patrimonial loss. The cases of Green v Coetzer
1958 (2) SA 697
(W) and Schnellen v Rondalia Assurance Corporation of
SA Ltd
1969 (1) SA 517
(W) - if they were correctly decided - are
apposite illustrations of that.
In the latter
kind of cases problems, similar to those mentioned in the judgment of
Corbett JA, could also arise.”
46. Moreover the Supreme Court of Appeal in
Standard Bank of
South Africa Ltd v Oneanate Investments (Pty) Ltd (in Liquidation)
[1997] ZASCA 94
;
1998 (1) SA 811
(SCA) at 827I approved the passage just cited
of Trollip JA, applied
Mazibuko
and expressly adopted the
following statement by Colman J at 266B-C:
“
The
question to be asked, therefore, is this one: ``Did the plaintiff, in
the earlier process, claim payment of the same debt as
now forms the
subject-matter of the claim which is said to be prescribed?'' If the
answer is in the affirmative, prescription has
been interrupted, even
if one of the grounds upon which the claim is now based differs from
the ground or grounds relied on at
the earlier stage.'”
This had followed on from the following
statement by the court in
Oneanate
at 826 G-H:
“
The real
question which arises is whether the subsequent pleading is
inconsistent with the claim proffered in the initiating summons.
In
the instant case I can see no inconsistency between what is averred
in the plaintiff's amended declaration of June 1993 and
what is
averred in its simple summons. The plaintiff's declaration as finally
amended indicates that the plaintiff was seeking
to enforce the same
debt referred to in its simple summons or a debt which is cognisable
in the simple summons. The amendment merely
clarified or added
details which do not appear in the simple summons.”
47. The fact that a counterclaim is not couched in a simple summons
type form should not detract from the point. A “
debt”
for purposes of the
Prescription Act is
not as limiting in scope
as either the concepts of “
cause of action”
or the “
facta probanda”
if that is strictly
construed to mean all the facts on which the claim relies.
Ergo has raised a
basic enrichment claim under the
condictio sine causa
which
requires no more than an allegation that a payment was made by the
plaintiff to the defendant in error without just cause
[9]
,
extending it only as a matter of law by reference to constitutionally
protected rights to property against an organ of State-
but this was
already raised in the alternative Claim B.
The label in
the present case is founded on an enrichment claim based on the
mistaken belief that it was owing. Although the
onus is on the
claimant to demonstrate the mistaken belief it is really the other
party who raises the justification.
The position of Ergo
remains consistent; both the existing and proposed counterclaims are
based on the Ergo not being obliged to
pay the Municipality any
amount, but if there was any liability then it could be no more than
the amount Eskom would have charged
Ergo directly, or at best a
permutation of that- accordingly any amount paid in excess must be
repaid to it under an enrichment
action. The debt remains nonetheless
substantially the same debt.
48. In the other case relied on by the Municipality of
De
Kock v Middelhoven
2018 (3) SA 180
(GP) the court at para 26 said
the following:
‘
Therefore,
in order to establish whether the causes of action are similar or
different, one merely has to look at the facts that
a litigant has to
prove in order to succeed with his or her claim. Once the facta
probanda are different, then the causes of action
can never be the
same.’
49. Unfortunately the court was not referred to
Oneanate
, its
adoption of Trollip J’s approach in
Evins
or its
acceptance of
Mazibuko
and the distinction to be drawn between
a “
cause of action
” and a “
right of
action
” for the purposes of determining the meaning to be
attributed to a “
debt
” under the
Prescription Act.
The
very situation with which
Oneanate
was concerned is one
where not all the
facta probanda
were alleged; only the label
to which the debt is to be attributed.
The court was also
not referred to the judgment of
Erasmus
which had considered a
number of cases in reaching the conclusion that a claim in contract
could be supplemented with an alternative
one in delict. The effect
is that the amended pleading would require the introduction of facts
supporting causation and possibly
a duty of care (in cases where the
duty did not flow naturally) which are unnecessary factual elements
in a purely contractual
claim.
Oneanate
was
overruled by the Constitutional Court on a different point in
Paulsen
and another v Slip Knot Investments 777 (Pty) Ltd
2015 (3) SA 479
(CC). However its
ratio
on the issue under consideration has
been consistently applied, as has
Mazibuko
[10]
.
See for instance
Unilever Bestfoods Robertsons (Pty) Ltd and
others v Soomar and another
2007 (2) SA 347
(SCA) at para 18 and
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd
2004 (2) SA
622
(SCA) at paras 5 and 6. In
CGU
the plaintiff had initially
relied on a different contract which would amount to a different
cause of action and different
facta probanda
yet the SCA found
that the debt remained the same for the purposes of prescription.
50. Another illustration where the
facta probanda
would be
different but the debt remains the same for purposes of prescription
is
Groter Johannesburgse Oorgangs Metropolitaanse Raad
v Schwartz
2002 (5) SA 584
(T) a full court decision which
upheld the decision of du Plessis J (reported in
2001
(2) SA 1014 (T)
).The court a
quo applied
Mazibuko
and
the full court endorsed the finding that amending a claim to allege
the negligence of the owner of the bus as opposed to the
driver based
on different acts of negligence and a different duty did not amount
to a different debt. This was because the amount
claimed still arose
by reason of a collision with the bus. In the present case the amount
claimed arose by reason of an alleged
mistaken payment based on there
being no lawful duty to pay because the Municipality had no lawful
right to charge anything more
than the amount Eskom could have
charged Ergo, or a permutation of that.
At
best the proposed amendment may result in Ergo reducing the amount of
its original enrichment claim should the court find that
the
Municipality was entitled to charge Ergo some amount directly by
reason of some deeming legislation.
51.
Accordingly if the claims made by Ergo
constitute a “
debt”
for
the purposes of the
Prescription Act, and
this is not conceded by
Ergo, then I am bound by the
ratio
of
the Appellate Division and the Full Court which, irrespective of the
language used, all support and have applied the fundamental
propositions explained in
Mazibuko.
It also becomes
unnecessary to consider the other technical and procedural arguments
raised by Adv Chaskalson on behalf of Ergo.
52. Whether Claims C and D are for recovery of a debt as envisaged
under the
Prescription Act
(
vide
Makate v Vodacom Ltd
2016 (4)
SA 121
(CC), or arising from appropriation or some other grounds
excluding the application of the
Prescription Act, need
not be
considered at this stage: The Municipality has already raised a
special plea of prescription to the existing counterclaims
and there
is no good reason why the prescription pleas to all Ergo’s
claims should not be heard before the same judge, if
only to avoid
the risk of different outcomes.
Tariff J
53. Ergo calculates the amount overpaid by reference inter alia to
the Municipality’s Tariff J. the Municipality contends
that
Tariff J did not exist at the relevant time. In my view this is a
matter for the Municipality to plead. It certainly was not
common
cause as to when Tariff J came into existence.
54. The Municipality argues that Ergo should have alleged that the
Tariff was in existence at the time. I believe that this is
necessarily inferred.
55. If as a fact Ergo is wrong then it is for the Municipality to
plead as much
Certain amounts in Claim C and D are
incorrectly claimed
56. The Municipality objected to a number of calculations which it
contends cannot be aggregated.
These have been
conceded by Ergo. For sake of completeness: In para 63.1 of Claim C
and para 69.3 of Claim D the words “
and/or”
are to
be replaced with “
alternatively”
; similarly at the
end of prayers (i) and (iii).
Claim D lacks averments to sustain a
cause of action or are vague and embarrassing
57. The difficulty facing Adv Hulley is that the issue of whether the
enrichment claim based on the
condictio sine causa
differs
from the constitutionally developed enrichment action contended for
by Ergo is that it raises the long standing legal debate
as to
whether there is a
numerous clausus
of
condictiones
and
if not, how it is to be developed as we do not recognise a general
enrichment action.
58. In my view the resolution of this issue without having regard to
the facts as ultimately proven may lead to a determination
of a broad
principle when what is called for at this stage is a more cautious
casuistic approach, particularly since novel constitutional
considerations are sought to be introduced into a
condictio
under
the common law.
59. I have already identified the differences between the various
claims (both existing and proposed) which leaves for consideration,
I
believe, only the point that there are insufficient factual averments
or that they are vague.
I do not share that
view. Ergo has set out the facts which it believes are adequate to
support the relief sought. The pleading of
a
condictio
is
relatively straight forward as appears from the reference to
Amler
cited in an earlier footnote. In any event most of these facts
have already been pleaded in the existing counterclaim without
demur.
COSTS
60. I subsequently realised that the question of costs has not been
dealt with. It is preferable to insert it into the main body
of the
judgment.
61. Ergo relies on
Rabinowitz v Van Graan and others
2013 (5)
SA 315
(GSJ) at para 45 in support of the general proposition that
costs should be awarded to the successful party since a “
bona
fide amendment with the object of ventilating the real issues between
the parties must be allowed. The party choosing to contest
issues is
expected to decide at its own risk whether or not to declare battle”
.
62. The Municipality refers to a few occasions where Ergo was
compelled to make concessions and, relying on
Grindrod (Pty) Ltd v
Delport and others
1997 (1) SA 342
(W) at 347C, contends that
since the opposition to the amendments was “
reasonable and
not vexatious or frivolous”
it should be awarded the costs
.
Grindrod
is premised on the proposition that an application for
an amendment is above all one seeking an indulgence. It is
unnecessary to
consider whether that is necessarily the single most
important factor when a proposed amendment is opposed; there being a
significant
difference between the additional costs incurred as a
consequence of acceding to an amendment with the need to address the
revised
pleading, consult and deliver a consequential amendment on
the one hand and engaging in a full blown opposed application on the
other.
63. While the amendment was not vague, save to the extent mentioned
earlier, I certainly believe that I gained a better understanding
of
the full import of the case, issues and subtleties that will have to
be grappled with at the trial. It most probably has also
contributed
to each parties understanding of the formidable task that may lie
ahead for both in trial preparation.
Finally, although
the challenge to the additional counterclaims on the ground that they
cannot piggy-back on the existing claims
to avoid prescription was
unsuccessful, there was always the risk that if the point had not
been taken at this stage then the Municipality
may have been
criticised for not doing so and been deprived of significant costs if
a trial court had considered the point to be
good.
64. I am of the view that overall the interests of both parties has
been served by engaging in this process. In the exercise of
my
discretion and for the considerations mentioned, the appropriate
order is that costs should be in the cause.
ORDER
65. It is ordered that:
1.
The application for leave to
amend is granted
a.
and that the words “that
may be found by the court“ are to be read immediately after the
words “discharged any
liability” in para 13.4 of the
amended Plea
b.
save that the words “and/or”
are to be replaced with “alternatively” in;
i.
para 63.1 of Claim C and para
69.3 of Claim D;
ii.
at the end of prayers (i)
and (iii)
2.
Costs to be in the cause
(SIGNED)
SPILG, J
DATE OF
JUDGMENT
8 June 2020
FOR
APPLICANT
Adv Chaskalson SC
Adv A Williamson
Mendelow-Jacobs Atto4rneys
FOR FIRST
RESPONDENT Adv
G1 Hulley SC
Adv JC Uys
Klopper Jonker Attorneys
FOR SECOND RESPONDENT
Adv NH Maenetje SC
Adv ALS Msimang
Nyapotse Inc
[1]
Plea para 12.1
[2]
Compare paras 29 to 34 of the earlier judgment delivered in October
2019 between the same main parties
[3]
See
Erasmus v Inch and another
1997 (4) SA 584
(W) per Wunsh
J at 591F-592A.
[4]
Para 8 of Ergo’s heads
[5]
Paras 29 to 32 of the earlier judgment handed down in October 2019
explains the relevance of whether the relationship between
the
Municipality and Ergo was one of supplier in terms of the
legislation or simply a convenient conduit, or a reseller, with
Ergo
being billed by the Municipality no more than the rate it would have
been charged by Eskom directly.
[6]
Judgement of October 2019 para 21
[7]
Para 28 of October 2019 judgment
[8]
Para 42 of Ergo’s Heads.
[9]
Harms
Amler’s Precedents of Pleadings
– under the
headings “
Condictio sine causa”
and
“
Enrichment”