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[2023] ZAECQBHC 54
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I.L.L v L.V.H and Others (2807/2022) [2023] ZAECQBHC 54 (26 September 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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Policy
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, GQEBERHA)
Case
No. 2807/2022
In the matter between:-
I[...]
L[...]
L[...]
Plaintiff
and
L[...]
V[...] H[...]
First Defendant
S[...]
V[...] H[...]
Second Defendant
SPROINK
(PTY) LTD
Third Defendant
JUDGMENT
BANDS J:
[1]
The present proceedings concern an exception noted by the defendants
to
the plaintiff’s particulars of claim on the basis that it
lacks averments necessary to sustain a cause of action against the
second and third defendants. The exception is taken on three
grounds, one of which was, advisedly, abandoned during argument
by
the defendants’ counsel.
The
facts alleged
[2]
The import of the plaintiff’s claim can be summarised as
follows.
[3]
The plaintiff is the biological mother of the first defendant.
The
second defendant is the husband of the first defendant and
accordingly, the plaintiff’s son-in-law. The third
defendant
is a company, alleged to have been incorporated as a
special purpose vehicle to hold property, more fully described as
Portion
0 of erf 1[…], Beachview, King Williams Town, Eastern
Cape (“
the immovable property
”), on the
plaintiff’s behalf. The first and second defendants are
the sole shareholders and directors of the
third defendant. In
addition, the first defendant, has “
signing powers in
respect of the plaintiff’s account to assist the plaintiff with
her day-to-day living expenses.
”
[4]
The plaintiff claims payment from the first; second; and/or third
defendants
in the sum of R2,940,000.00. According to the
particulars of claim, the first defendant; alternatively, the second
defendant,
unlawfully and without the consent of the plaintiff,
transferred an amount of R9,000,000.00 from the plaintiff’s
bank account,
on or about 1 December 2021, to the bank account of the
first defendant, held with First National Bank (“
the 512
account
”).
[5]
It is alleged that on the same day, the first defendant;
alternatively,
the second defendant, transferred the sum of
R6,060,000.00 from the 512 account into a further account held in the
name of the
first defendant, with First National Bank (“
the
393 account
”). The latter sum of money was thereafter
transferred by the first defendant; alternatively, the second
defendant,
to the first defendant’s investment account, held
with Old Mutual, in four separate transactions on 1; 2; 3 and 4
December
2021, in the sums of R400,000.00; R1,900,000.00;
R1,970,000.00; and R1,790,000.00 respectively.
[6]
The plaintiff further pleads that on 4 July 2022, the first
defendant;
alternatively, the second defendant, unlawfully and
without the consent of the plaintiff, transferred an amount of
R120,000.00
from the plaintiff’s account to the first
defendant’s 512 account.
[7]
It is common cause that the plaintiff, pursuant to urgent
anti-dissipation
proceedings, obtained two interim orders of court on
8 and 19 July 2022 against the first to third defendants, with a
rule
nisi
returnable on 16 August 2022. On the return day, an
order was granted by agreement between the parties for,
inter
alia
, (i) the return of the amounts of R6,060,000.00 and
R120,000.00 from the first defendant’s investment and 512
accounts, respectively;
(ii) that the plaintiff is to institute
action, on or before 30 September 2022, for the recovery of the
remainder of the monies
not paid to the plaintiff; and (iii) that a
caveat be registered over the immovable property in favour of the
plaintiff as security
for any claim that the plaintiff may in due
course prove. Summons was thereafter issued on 29 September
2022 against the
first to third defendants for payment of the sum of
R2,940,000.00, being the balance of the sum of R9,120,000.00, which
has not
been returned to the plaintiff and remains unsecured.
The present application emanates from the plaintiff’s
particulars
of claim relevant to such action proceedings.
[8]
In addition to the aforesaid facts, which were gleaned from the
particulars
of claim, the basis for the plaintiff’s claim is as
follows:
“
PLAINTIFF’S
CLAIM
22.
The Plaintiff specifically pleads that of the R9,120,000.00
transferred unlawfully and without any authority
or consent from the
Plaintiff’s Account on 1 December 2022 and 4 July 2022, the
R120,000.00 was returned by First National
Bank and only a sum of
R5,858,745.26 (R201,254.74 less than ordered, and for which the First
to Third Defendants remain liable)
was returned by Old Mutual.
Judgment has been secured by way of the Order on 16 August 2022 and
the full amount of R6,060,000.00
has therefore been secured.
23. The
balance of R2,940,000.00 has not been returned by the First, Second
and/or Third Defendants and was:
23.1
spent, used, alienated and/or dissipated by the First, Second and/or
Third Defendants; alternatively
23.2
spent and/or used to pay for improvement to the Third Defendant’s
Property; further alternatively
23.3
spent and/or used for the benefit of the Third Defendant.
24.
The transfer by the First and/or Second Defendant of the sum of
R9,120,000.00 from the Plaintiff’s
Account was made unlawfully,
without the Plaintiff’s consent and/or authority, as a result
of which, the Plaintiff has suffered
damages in the sum of
R2,940,000.00.
25.
The First, Second and Third Defendant, despite demand, refuse,
neglect and/or fail to return
the sum of R2,940,000.00 to the
Plaintiff, which amount is due, owing and payable to the Plaintiff.
”
The
exception
[9]
The two grounds of exception, which remain for determination are as
follows:
“
FIRST
EXCEPTION – SECOND DEFENDANT
1.
In attempting to establish a claim against
the Second Defendant, the Plaintiff pleads as follows:
1.1.
In paragraph 11 the Plaintiff pleads that
the First Defendant was given signing powers on her account.
1.2.
In paragraph 12 the Plaintiff pleads that
money was transferred to the First Defendant’s bank account.
1.3.
In paragraph 13 the Plaintiff pleads that
money was transferred from the First Defendant’s one bank
account to another bank
account held by the First Defendant.
1.4.
In paragraph 14 the Plaintiff pleads that
money was thereafter transferred from one of the First Defendant’s
bank accounts
to the First Defendant’s linked investment plan
held by Old Mutual.
1.5.
In paragraph 15 the Plaintiff pleads that a
further sum of money was transferred to the First Defendant’s
bank account.
2.
The plaintiff has accordingly failed
to plead facts establishing a cause of action to sustain the relief
as prayed for against the
Second Defendant.
SECOND
EXCEPTION – AS AGAINST THE THIRD DEFENDANT
3.
In paragraphs 10 to 15 of the particulars
of claim, the Plaintiff avers that certain payments were made to the
First Defendant from
the Plaintiff’s bank account unlawfully
and without her consent and accordingly she has suffered damages.
4.
The Plaintiff has accordingly failed to
plead facts establishing a cause of action to sustain the relief as
prayed for against the
Third Defendant.”
[10]
The principles relevant to the adjudication of exceptions are well
established. For
the purposes of this judgment, I am not called
upon to recount them at any great length other than as set out
hereunder.
[11]
Mindful of the purposes of an exception, in the context of the
present proceedings; being
to weed out claims that should not proceed
to trial given the lack of a cognisable claim on the pleadings, a
pragmatic approach
to the examination of the plaintiff’s
particulars of claim is required.
[12]
As pointed
out by Harms JA in
Telematrix
(Pty) Ltd t/a Matrix Vehicle Tracking v Advertising Standards
Authority SA
,
[1]
exceptions should be dealt with sensibly, with an over technical
approach serving only to destroy their utility. The
test is
whether on all possible readings of the facts, no cause of action may
be made out. It is for the excipient to satisfy the
court that the
conclusion of law for which the plaintiff contends, cannot be
supported on every interpretation that can be put
upon the facts.
[2]
[13]
The
above principles were succinctly summarised and restated by Ponnan
JA, writing for the Supreme Court of Appeal, at paragraph
[14] in
Luke
M Tembani and Others v President of the Republic of South Africa and
Another
as follows:
[3]
“
Whilst
exceptions provide a useful mechanism ‘to weed out cases
without legal merit’, it is nonetheless necessary that
they be
dealt with sensibly. It is where pleadings are so vague that it
is impossible to determine the nature of the claim
or where pleadings
are bad in law in that their contents do not support a discernible
and legally recognised cause of action, that
an exception is
competent.
The
burden rests on an excipient, who must establish that on every
interpretation that can reasonably be attached to it, the pleading
is
excipiable. The test is whether on all possible readings of the
facts no cause of action may be made out; it being for
the excipient
to satisfy the court that the conclusion of law for which the
plaintiff contends cannot be supported on every interpretation
that
can be put upon the facts.”
[14]
The
plaintiff, in order to avoid an exception on the ground that her
particulars of claim lacks averments which are necessary to
sustain a
cause of action, must ensure that the essential facts (the
facta
probanda
and not the
facta
probantia
or
evidence necessary to prove the
facta
probanda
)
of her claim
are
set out with sufficient clarity and completeness so that if the
correctness of these facts is accepted, they support the legal
conclusion relied upon and legally entitle her to the relief that she
seeks.
[4]
Accordingly,
proceedings of this nature must be approached from the premise that
the allegations contained in the plaintiff’s
particulars of
claim are correct.
[15]
As I understand it, the defendants’ exceptions are predicated
on the assumption that
since it is the first defendant who has
signing powers on the plaintiff’s account (and not the second
and third defendants),
coupled with the fact that the money was at
all times transferred into bank accounts in the first defendant’s
name, the plaintiff
has failed to plead facts establishing a cause of
action to sustain the relief sought against the second and third
defendants.
[16]
To uphold such a contention would be to adopt a piecemeal approach to
the plaintiff’s
particulars of claim and would require me to
ignore the following pleaded facts, which I must accept to be
correct, namely that:
(i) the transactions referred to were effected
by the first; alternatively, the second defendants (this being
relevant to the defendants’
first exception); and (ii) that the
balance of the R2,940,000.00 has not been returned by the first,
Second and/or Third Defendants
and was spent, used, alienated and/or
dissipated by,
inter alia
, the First, Second and/or Third
Defendants (this being relevant to the first and second exceptions).
That it is not pleaded
that the second and third defendant had
signing power on the plaintiff’s account is of no moment.
How the transactions
were specifically made, in the absence of such
signing power, remains an issue to be ventilated at trial.
[17]
In my opinion, it is sufficiently clear, when reading the particulars
of claim as a whole,
pragmatically, that the plaintiff’s claim,
as pleaded, is that the conduct complained of was undertaken by the
defendants,
with the knowledge and acquiescence of all of them and in
collusion between them.
[18]
It was argued on behalf of the plaintiff that her cause of action is
sustainable under
the
condictio furtiva
; alternatively, the
rei vindicatio
; further alternatively, the actio
ad
exhibendum
. Prior to examining the cause of action on the
pleadings, the approach adopted by the plaintiff in argument requires
comment.
It ill behoves a litigant to approach the court with
an amalgam of allegations to support a number of possibilities as to
what
the basis or bases of the defendant/s alleged liability may be.
[19]
As
commented by Binns-Ward J in paragraph [15] of
Super
Group Trading (Pty) Ltd t/a Super Rent v Bauer and Another
:
[5]
“
It
would not be competent for the plaintiff to purport to advance its
claim on a jumble of causes of action. If it intended
to
advance its claim on the basis of more than one cause of action, it
would have to do so by pleading them in the alternative
to each
other. If the pleader indeed intended to advance the
plaintiff’s claim on all four of the aforesaid bases in
the
alternative, it is not clear from the pleading where the one ends and
the other begins.
”
[20]
Be that as it may, and notwithstanding the argument advanced on
behalf of the plaintiff,
it is for the court seized with the
exception proceedings, to determine whether the pleading in question
contains sufficient averments
to sustain a cause of action in law.
In the present matter, and whilst the plaintiff’s particulars
of claim is pleaded
somewhat clumsily, the answer to this question
must be in the affirmative for the simple reason that on any
interpretation, and
regardless of the label advanced in argument
regarding the plaintiff’s cause of action, the particulars of
claim contains
sufficient allegations to sustain a cause of action
based on common law fraud; alternatively, theft.
[21]
Given the
finding to which I have arrived, I need not examine the various
causes of action upon which the plaintiff has sought to
place
reliance, suffice to comment that the submission that the
rei
vindicatio
;
alternatively, the
actio
ad
exhibendum
as causes of action are available to the plaintiff, is misplaced.
On the facts pleaded, the plaintiff cannot rely on a cause
of action
based on ownership. It is well established that once money is
deposited into a bank account and is mixed with other
money (in this
case with that of the banking institution), ownership passes to the
said institution by operation of law.
In such instance, a party
thereafter retains a special interest in the money deposited and has
a personal claim against the bank.
[6]
[22]
Notwithstanding the aforesaid, and properly considered, there is no
doubt that a cause
of action has been made out on the particulars of
claim against all three defendants. In the circumstances, the
defendants’
exceptions fall to be dismissed. There exists
no reason, nor was any reason advanced, to depart from the usual
order as to
costs.
[23]
Accordingly, the following order is issued:
1.
It is recorded
that the excipients abandoned the “
Third
Exception – All Defendants
”
contained in the first to third defendants’ exception, dated 2
December 2022.
2.
The first to third
defendants’ remaining exceptions in terms of the said notice of
exception are dismissed with costs.
I
BANDS
JUDGE
OF THE HIGH COURT
Date
heard:
25 May 2023
Judgment
granted:
26 September 2023
For
the plaintiff:
Adv JHF le Roux
Instructed
by:
Jacques du Preez Attorneys
96 Mangold Street
Newton Park
Gqeberha
For
the defendants:
Adv KM Morris
Instructed
by:
Quinton van der Berg Attorneys Inc.
132 Cape Road
Mill Park
Gqeberha
[1]
2006
(1) SA 461
(SCA) at para [3].
[2]
See
also
H
v Fetal Assessment Centre
2015 (2) SA 193 (CC).
[3]
2023
(1) SA 432
(SCA
)
at para [14].
[4]
Manyatshe
v South African Post Office
[2008]
4 All SA 458 (T).
[5]
2022 (5) SA 622
(WCC) at paragraph [14].
[6]
First
National Bank of Southern Africa v Perry N.O. and Others
[2002]
3 All SA 331
; and
Roestoff
v Cliffe Dekker Hofmeyer Inc
2013 (1) SA 12.