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[2021] ZAECPEHC 53
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Kok v Botha (1494/2020) [2021] ZAECPEHC 53 (5 October 2021)
NOT
REPORTABLE
IN THE
HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION – PORT ELIZABETH
Case No:
1494/2020
In
the Exception proceedings between:
SURINA
KOK
Excipient
and
RIAAN
BOTHA
Respondent
In
re:
In
the matter between:
RIAAN
BOTHA
Plaintiff
and
HUGO
VERMEULEN
First Defendant
JOHAN
WILLEM ALBERTUS VAN NIEKERK
Second
Defendant
HEIN
GUSTAV VAN
MOLENDORFF
Third
Defendant
SURINA
KOK
Fourth
Defendant
JUDGMENT
MAKAULA
J:
[1] On
13 July 2021, the Plaintiff issued summons against the Four
Defendants for undue enrichment. Pursuant to
a Notice to
Remove Causes of Complaint, the Fourth Defendant excepted to the
Plaintiffs Particulars of Claim (POC) on various grounds.
The
Plaintiff opposes the application. I shall refer to the parties
as the Plaintiff and Fourth Defendant.
[2] The
POC is divided into two parts. Paragraphs (3) to (5) relate to
a claim against the First to the Third Defendants,
whereas paragraph
6 is in the alternative and only relates to the Fourth Defendant.
[3] Paragraphs
3 to 5 are referred to as “Claim against the First to Third
Defendants (“the Sellers”).
In paragraphs 3.1 to
3.12, the Plaintiff avers that during June 2015, he concluded a
written agreement of sale with the sellers
purchasing Erf 8459 (the
Property) situate in Jeffreys Bay. At the relevant time of
signing the agreement, Johan Ferreira
represented the sellers from
Millieu 2000 Properties (the Agent). He was not in possession
of the original agreement nor
a copy thereof. However, the
property was transferred to his name on 10 September 2015. He
annexed to the POC a copy
of a signed agreement. The agreement
is an offer to purchase the property and reflects the street address
as 15 Nutmeg Crescent,
The Sands, Jeffreys Bay. The purchase
price was R150 000.00. The Plaintiff signed the agreement
on 4 July 2015.
Other than the fact that the agreement is on
the letterhead of Milieu 2000 the names of the sellers do not appear
and no one signed
on the latter’s’ behalf. Prior to
the conclusion of the agreement, the Plaintiff alleges that the Agent
took
him to the property and he inspected it. Once the transfer
of the property was done, he built a structure which is worth
R1 112 184.76, on the property. At all material
times, he thought he was building on Erf 8459. Pursuant to
the
completion of the structure, the Plaintiff occupied the property
dated about April 2017, when he decided to sell it.
It was only
then, that the conveyancer who was doing the transfers that brought
to his attention that the structure was built on
an adjoining
property (Erf 8458) instead of Erf 8459. The remaining relevant
averments in respect of the First to Third Defendants
read:
“
3.17
During April 2017, the Plaintiff, as a result of an attempt to sell
what he believed to
be the Property, was informed by the
Conveyancing Attorneys that the
dwelling that he caused
to be erected, was in fact constructed on the
adjoining property, which, in ownership, belongs to the Fourth
Defendant.
3.18
The Agent was at all material times aware that the Plaintiff would
act on the
assumption that
he was shown the factually correct property and the Agent
owed the Plaintiff a duty of care to show
him the correct property.
3.19
The representation by the Agent as to the purported location of the
Property was material and
was made with the intention of including
the Plaintiff to act thereon by constructing the dwelling on
such Property.
3.20
Similarly, the representation to Plaintiff’s building
contractor was also material and
induced Plaintiff to commence
construction of the dwelling.
3.21
The Plaintiff, relying on the truth of the representation that what
was shown to him was the
Property, concluded the agreement of sale
and caused the dwelling to be constructed on the Property in the
amount referred to
above.
3.22
The above representations were false in that what was shown to the
Plaintiff and his building
contractor was the incorrect property,
namely the adjoining property.
3.23
The Agent was negligent in making the aforesaid representations
because he
did not make proper enquiries
concerning the location and identification of the
Property as he was obliged to do.
4.
Because of the Agent’s representations, the Plaintiff has
suffered damages
calculated as follows:
4.1
The construction costs incurred in erecting the dwelling on the
adjoining property
in the amount of R1 112 184.76, the particulars of
which are set out in a schedule annexed hereto marked
POC2.
5.
The Sellers are accordingly liable to compensate the Plaintiff for
the damages
sustained, namely the costs of construction of the
dwelling in the amount of R1 112184.76, which amount, the Sellers,
notwithstanding
demand, refuse, fail and/or neglect to pay to the
Plaintiff”.
[4] The
averment in respect of the claim against the Fourth Defendant read:
“
6.
In the event of a finding by the above Honourable Court that the
Plaintiff is not entitled
to damages as against the Sellers the
Plaintiff claims as against the Fourth Defendant as follows:
6.1
At all relevant times the Plaintiff was a
bona
fide
possessor of the adjoining property.
6.2
The construction of the dwelling on the adjoining property
constitutes useful expenses
which enriched the Fourth Defendant.
6.3
The costs of the improvement of the adjoining property (the costs of
construction
of the dwelling house) is less than the enhanced value
of the adjoining property by virtue of the dwelling construction
thereon.
6.4
Accordingly, the Fourth Defendant has been unjustifiably enriched at
the expense of
the Plaintiff in the amount expended to construct the
dwelling, namely R1 112 184.76.
6.4
The aforesaid expenses in constructing the dwelling were therefore
useful for the
improvement of the adjoining property.
6.6
The Fourth Defendant has not rejected but accepted the enrichment
flowing from the
useful improvements made by the Plaintiff.
6.7
Accordingly, the Fourth Defendant is liable to pay Plaintiff the
amount of R1 112184.76”.
A.
Cause of Complaint
:
[5]
Essentially, the exception is premised on the basis that the POC is
vague and embarrassing, alternatively it lacks facts which
are
necessary to sustain a cause of action. This complaint is
hereunder premised on the alleged Plaintiff’s failure
to comply
with the requirements of Rules 18(4) and 18(6) of the Uniform Rules
of Court.
[6]
In a summary manner, the Fourth Defendant’s exception is based
on the following:
“
1.
That the Plaintiff failed to plead the identities of the Sellers.
2.
Failure to plead the legal basis for the liability of the Sellers.
3.
Whether the property was held in the
bona
fide
possession or registered of all or either of
the Sellers.
4.
Failure to specify that the Plaintiff fulfilled its obligations in
terms of the
agreement.
5.
Whether the property was eventually transferred to his name.
6.
The Fourth Defendant requires the Plaintiff to comply with the Rule
18(4) in
the POC must contain a clear and concise statement of the
material facts upon which the Plaintiff relies for his claim with
sufficient
particularity to enable the Fourth Defendant to plead
thereto.
7.
If I understand this ground clearly, the Fourth Defendant seeks the
Plaintiff
to prove the allegations he is making in respect of the
property and the alleged written agreement.
8.
That the Plaintiff has failed to plead any material facts with
sufficient particularity
in respect of,
inter
alia,
the alleged property and or the alleged agreement of the sale of the
property”.
[7] The
Fourth Respondent, in respect of the above complaints, submit that
the failures by the Plaintiff to plead with particularity
and the
non-compliance with the rules of pleading generally render the
pleadings are vague and the Fourth Defendant is embarrassed
thereof,
and shall be prejudiced if the order sought is not granted.
[8] The
other ground upon which the exception is brought is that the Fourth
Defendant except on the basis that the Plaintiff
failed to provide a
completed and or signed written offer to purchase the property and in
doing so:
“
1
the Plaintiff failed to comply with Rule 18(6) and 18(4);
2.
fails to plead a clear and concise statement of material facts with
particularity,
and upon which he relies for his claim for payment by
the Fourth Defendant of alleged unjustified enrichment of the latter
through
the Plaintiffs alleged reasonable error and subsequent
“useful expenses”.”
[9] The
contention by the Fourth Defendant, the failures by the Plaintiff
strike at the root of the cause of action pleaded
and prohibit her
from pleading thereto without embarrassment or prejudice.
[10] The
Plaintiff opposes the granting of the order on the basis that the POC
sufficiently particularises the cause of action
as nothing more than
a claim based on negligent misrepresentation, which caused damage by
virtue of the Sellers identifying an
incorrect property which
resulted in him constructing a dwelling on the Fourth Defendant’s
property.
[11] The
Plaintiff highlights that the claim against the Fourth Defendant is
dealt with in paragraph 6 of the POC and is not
excipiable. The
Plaintiff avers that he has pleaded all the essential facts necessary
to sustain a cause of action in respect
of undue enrichment. He
has pleaded that he is a
bona
fide
possessor of the property, and as such seeks to enforce his claim for
compensation for necessary and useful expenses. The
Plaintiff
argues that he has pleaded that the construction of the dwelling on
the property constituted useful expenses, which ordinarily
are
understood to mean a tangible improvement to the property that
increases its market value. He submits that he has specifically
pleaded that the Fourth Defendant has not rejected that she has been
enriched but accepted it.
B.
Rule 23 of the Uniform Rules of Court
:
[12] A
pleading that is vague and embarrassing or lack averments, which are
necessary to sustain an action may be excepted
by a defendant.
A defendant shall do so only after he or she serves on the Plaintiff
a notice giving the Plaintiff an opportunity
to remove the cause of
complaint.
[13] An
exception that a pleading is vague or embarrassing is not directed at
a particular paragraph, it goes to the whole
cause of action, which
must be demonstrated to be vague and embarrassing. The
exception is intended to cover the case where,
although a cause of
action appears on the summons and there is some defect or
incompleteness in the manner in which it is set out,
which results in
embarrassment to the defendant
[1]
.
An exception that a pleading is vague and embarrassing strikes at the
formulation of the cause of action and not its legal
validity
[2]
.
An exception based on vagueness and embarrassment shall only be
allowed if the exception shall be seriously prejudiced if
the
offending allegations are not expunged
[3]
.
The onus lies with the excipient to show both vagueness amounting to
embarrassment and that such results in the excipient
being prejudiced
his case
[4]
. The
proposition that an exception is that a pleading is vague and
embarrassing involves a twofold approach or consideration:
‘
(a)
whether the pleading lacks particularity to the extent that it is
vague; and
(b)
whether the vagueness causes embarrassment to an extent that the
excipient is prejudiced
[5]
”.
C.
Analysis
:
[14] The
POC make it clear that the sellers are the First to Third
Defendants. The heading to paragraph 3 reads:
“
Claim against
First to Third Defendants (“The Sellers”)
Paragraph
3.5 stipulates that throughout the transaction purchase of the
property, the Sellers acted through an Estate Agent, Johan
Ferreira
from Milieu 2000 Properties. The POC is clear that paragraphs 3
to 5 only pertains to the First to Third Defendants
and have no
bearing to the claim against the Fourth Defendant. The cause of
action is different in the first three Defendants
to choose not to
defend the action against them is completely different from that of
the Fourth Defendant. The material facts
pleaded in respect of
the claim against the first three Defendants are clear and are set
out in a manner that if traversed they
would support the right to
have judgment in the Plaintiff’s favour. As put
succinctly by Mr Beyleveld, for the Plaintiff,
the claim against the
first three Defendants is nothing more than a claim based on a
negligent misrepresentation by them which
caused damage by virtue of
the Defendants identifying the incorrect property purchased by the
Plaintiff and which resulted in the
Plaintiff constructing a dwelling
on the Fourth Defendants property. The pleading in accordance
with the following dictum
by Wallis JA
[6]
:
“
Causes of action
are not in the first instance dependant on questions of law.
They require the application of legal principle
to a particular
factual matrix.
The
test on exception is whether on all possible readings of the facts,
no cause of action is made out
.
It is for the Defendant to satisfy the court that the conclusion of
law for which the Plaintiff contends cannot be supported
upon every
interpretation that can be put to the facts”. (Emphasis
added)
[15] As
alluded to the claim against the Fourth Defendant is based on undue
enrichment and is dealt with in paragraph 6 of
the POC and is pleaded
in the alternative.
[16] The
requirement or elements of undue enrichment are stated as follows in
The South African Law of Unjustified Enrichment
[7]
.
“
. . . first, that
the plaintiff was impoverished; secondly, that the defendant was
enriched; thirdly, that the defendant’s
enrichment
was at the plaintiff’s expense; and fourthly, that there is no
legal ground or justification for retention
of the
enrichment”.
[17]
It is common cause that the claim for enrichment is premised on the
materialised improvements effected by the plaintiff
on the property
belonging to the Fourth Defendant. This fact cannot be gainsaid
and is made clear in paragraph 6.2 of the
POC. South African
Law distinguishes between various types of improvements
[8]
,
viz:
“
(a)
the legal relationship between the improver and the property; and
(b)
whether he was a possessor”.
[9]
The
Plaintiff in paragraph 6.1 makes the point that at all relevant
times, he was the possessor of the property.
[18] The
POC establishes the essential elements necessary to establish the
claim of unjust enrichment. The relevance
of the Deed of Sale
and the Title Deed, that would establish that the Plaintiff is the
owner of Erf 8459, loses me. With
respect, it has nothing to do
with the cause of action against the Fourth Defendant. The
issue is whether there have been
improvements or construction of a
dwelling on her property and whether that construction was made in
error and enriched her.
Put differently, whether the market
value of the property has improved as a result of improvements to the
amount claimed by the
Plaintiff.
[19]
I find there is no merit in the grounds of Exception raised by the
Fourth Defendant.
[20] Consequently,
the application is dismissed with costs.
______________________
M
MAKAULA
Judge
of the High Court
Appearances
:
Counsel for Excipient
(Fourth Defendant): Adv
A Jansen Van Vuuren
Sandton
Instructed
by: Gerda
Small Attorneys
Parys
c/o Van Der Berg Attorneys
Port
Elizabeth
Counsel for
Respondent/Plaintiff: Adv
I Bands
Port Elizabeth
Instructed
by: Friedman
Scheckter Attorneys
Port
Elizabeth
Date
heard:
13 May 2021
Date
reserved: 13
May 2021
Date
delivered:
05 October 2021
[1]
Erasmus: Superior Court Practice Volume 2, 2
nd
Edition,
Van Loggenberg: Service 7, 2018 at D1-298, see also often cited
decisions
Jowell v Bramwell-Jones and Others
1998 (1) SA 836
(W);
Trope v South African Reserve Bank and Another
1992 (3)
SA 208
(T) (on appeal:
[1993] ZASCA 54
;
1993 (3) SA 264
(A)):
Levitan v Newhaven
Holiday Enterprises
CC
1991 (2) SA 297
(C);
Nasionale
Aardappel Kooperasie Bpk v Price Waterhouse Coopers
2001 (2) SA
790 (T).
[2]
Trope v South African Reserve Bank
[1993] ZASCA 54
;
1993 (3) SA 264
(A) at 269
I.
Inzinger v Hofmeyr and Others
7575/2010) [2010]
ZAGPJHC 104 (4 November 2010) [also reported as
[2010] JOL 26423
(GSJ) paragraphs 4-5.
[3]
Levitan v Newhaven Holiday Enterprises CC
1991 (2) SA 639
(C)
at 645 B - C.
[4]
Supra fn
at 817 (F).
[5]
Trope v South African Bank
1992
(3) SA 208
(T) at 221 A – B.
[6]
Children’s Resource Centre Trust v
Pioneer Food
2013 (2) SA 213
(SCA) at
para 36.
[7]
By Professor Jacques du Plessis, First Edition, page 2.
[8]
On unauthorised improvements of author’s property.
[9]
The South African Law of Unjustified Enrichment paragraph 9.4 on
page 274.