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[2023] ZAECMKHC 33
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Buchner N.O and Others v Buchner N.O and Others (906/2022) [2023] ZAECMKHC 33 (16 March 2023)
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IN THE HIGH COURT OF
SOUTH AFRICA
(EASTERN CAPE
DIVISION, MAKHANDA)
CASE
NO: 906/2022
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO
OTHER JUDGES: YES/NO
(3)REVISED.
DATE:
SIGNATURE:
In the matter between:
ESTELLE
BUCHNER N.O.
First
Plaintiff/Excipient
MALCOLM
GRAHAM MAC KENZIE N.O.
Second
Plaintiff/Excipient
FRANCES
BUCHNER N.O.
Third
Plaintiff/Excipient
DANEEL
IGNATIUS BUCHNER N.O.
Fourth
Plaintiff/Excipient
WERNER
CORNḖ BUCHNER N.O.
Fifth
Plaintiff/Excipient
and
GIDEON
GERHARDUS BUCHNER N.O.
First
Defendant
/
Respondent
MARIA
NEL BUCHNER N.O.
Second
Defendant
MARIA
NEL BUCHNER
Third
Defendant
JUDGMENT
POTGIETER
J
Introduction
[1]
The excipients, who are the plaintiffs in a pending action under the
above
case number, are excepting to the respondent’s first and
third claims in reconvention (in the pending action). The respondent
is the first defendant in the pending action. The second claim in
reconvention has been withdrawn.
[2]
The respondent is the co-executor in the estate of the late Thomas
Ignatius Buchner (”the deceased”) who leased
certain
cattle during 1997 to the Werner Buchner Family Trust (“the
Trust”). The excipients are the trustees of the
Trust.
[3]
The grounds of exception are identical in respect of both claims,
namely that they do not disclose a cause of action, alternatively
lack averments necessary to sustain a cause of action.
Exception
in respect of the first claim in reconvention
[4]
The excipients aver in respect of the first claim in reconvention,
which is for delivery of the leased cattle alternatively
damages,
that it is based upon an alleged written cancellation of the relevant
lease. It is averred that no valid cancellation
is alleged by the
respondent. More specifically, clause 11
[1]
of the lease provides that the
domicilium
of the Trust for purposes of the notice of cancellation of the lease
shall be the farm B[...], district Alexandria, Eastern Cape
Province.
Contrary to this provision, the notice of cancellation was not
delivered to the chosen
domicilium
of the Trust but was sent to the attorneys of the Trust. The notice
was accordingly ineffectual and cannot be relied upon to sustain
any
cause of action based upon the alleged notice of cancellation and the
cancellation of the lease. In the absence of proper cancellation
of
the lease, no cause of action is disclosed in respect of either
delivery of the cattle or damages and the averments necessary
to
sustain the cause of action are lacking. The excipients averred that
the exception in respect of the first claim in reconvention
should
accordingly be upheld and the claim be struck out, set aside or
dismissed with costs.
[5]
The gravamen of the ground relied upon in this regard by the
excipients appears from paragraph 1.6 of the notice of exception
which is to the following effect:
“
1.6
The First Defendant has failed to allege that notice of cancellation
was given to the Werner Buchner Family Trust in compliance
with
clause 11.1 of the lease agreement.”
[6]
Mr Grundlingh, who appeared on behalf of the excipients together with
Mr Van Wyk, reiterated that the notice of cancellation
was not sent
or delivered to the chosen
domicilium
but was instead sent to the attorneys of the Trust. He submitted that
the wording of clause 11.1 of the lease agreement is clear
and
unambiguous and requires that notice of cancellation should be given
at the chosen
domicilium
address. He referred to the following dicta in
Amcoal
Collieries Limited v Truter
[2]
:
“
Parties to a
contract may, however, choose an address for the service of notices
under the contract. The consequences of such a
choice must in
principle be the same as a choice of a domicilium citandi et
executandi, namely that service at the address chosen
is good
service, whether or not the addressee is present at the time.”
[7]
Mr Grundlingh referred to a number of other cases which he submitted
supported the excipients’ case that the notice of
cancellation
in this case should have been given at the chosen
domicilium
.
The notice relied upon by the respondent is accordingly legally
ineffective and cannot be relied upon in support of the first
claim
in reconvention which does not disclose a cause of action against the
Trust.
[8]
Mr Nepgen, who appeared on behalf of the respondent, indicated that
the respondent made the following averments with regard
to
cancellation in the claim in reconvention:
“
9. The First
Defendant pleads that on 14 December 2021 written notice of
cancellation of the lease was given to the Werner Buchner
Family
Trust as provided for therein, with the lease terminating on 31 March
2022. A copy of the relevant correspondence is annexed
to the
particulars of claim marked ‘G’.”
[9]
He submitted that the respondent thus pleaded that the notice of
cancellation was given “
as provided for”
in the
lease. This averment must be accepted as true in accordance with the
applicable rule relating to exceptions. The factual
contention to the
contrary by the excipients cannot be considered in determining the
exception. It is only the averments by the
respondent that are
relevant for purposes of the exception. The claim in reconvention can
be reasonably interpreted to particularise
compliance with the lease
agreement. In any event, the notice provision is not framed as a
peremptory requirement in respect of
the method of delivering of
notices or the address for delivery. There is accordingly no merit in
the exception to the first claim
in reconvention.
[10]
In supplementary heads of argument, it was submitted on behalf of the
excipients that the correctness of the factual averments
in the claim
in reconvention is assumed
,
unless they are palpably untrue,
manifestly false or so improbable that they cannot be accepted. The
respondent is relying on annexure
“G” to the particulars
of claim as the basis for the cancellation of the lease. The case of
the respondent must be
considered on the basis of the averments in
the claim in reconvention together with the supporting annexures. The
reference to
annexure “G” and the document itself cannot
simply be ignored in determining the exception. Annexure “G”
is a notice addressed to the attorneys of the Trust and not to the
domicilium
of the Trust. Clause 11.1 is peremptory and
stipulates that notice “
shall”
be given at the
domicilium
of the Trust which did not occur. The opposition of
the respondent to the exception in respect of the first claim in
reconvention
accordingly lacks any merit.
[11]
I have considered the arguments advanced on behalf of the parties and
had regard to the general principles applicable to deciding
exceptions as set out in the applicable case law which I was referred
to by counsel. I am satisfied that the averments contained
in
paragraph 9 of the claim in reconvention can reasonably be
interpreted as averring due compliance with the notice requirements
of clause 11.1 of the lease agreement. The narrow basis of the
exception is that the claim in reconvention does not make such
averment. This contention is misguided given the express wording of
paragraph 9. The stance of the excipients appears to raise a
dispute
of fact in this regard which is in any event not appropriate to
resolve in exception proceedings in the absence any evidence
having
been led. This is quintessentially an issue for determination by the
trial court.
[12]
Clause 11.1 is furthermore reasonably susceptible to the
interpretation that service at the
domicilium
address of the
Trust is not a peremptory requirement, but rather that the clause
provides that if service at the
domicilium
is resorted to it
must (“sal”) be effected at the address nominated by the
Trust. In those circumstances, service of
the notice on the attorneys
of the Trust as happened by means of annexure “G” to the
excipients’ particulars
of claim, would constitute effective
service in terms of clause 11.1. It should be added that the notice
clearly came to the attention
of the excipients in view of the fact
that they enclosed it as an annexure to their particulars of claim.
[13]
It follows that the claim in reconvention does disclose a cause of
action and contains the averments which are necessary to
sustain a
cause of action against the Trust in respect of the first claim in
reconvention.
Exception
in respect of the third claim in reconvention
[14]
The respondent’s third claim in reconvention is for the return
of certain cattle premised upon the
rei vindicatio,
alternatively and in the event of a failure to return the cattle, for
payment of damages premised upon the
actio ad exhibendum.
(i)
Rei vindicatio
[15]
It was correctly pointed out on behalf of the excipients that in
order to succeed with a claim premised on the
rei
vindicatio
the respondent was required to allege that the Trust was in
possession of the cattle when the claim in reconvention was
instituted.
[3]
[16]
The respondent relies upon the following averments in the claim in
reconvention for the return of the cattle:
“
23. The herd
was thereafter dealt with by the Werner Buchner Family Trust as if it
was the owner and
the current whereabouts of the cattle
concerned
, or whether they are still alive
are
unknown
to the First Defendant.”
(emphasis
supplied)
[17]
It was submitted on behalf of the excipients that the failure by the
respondent to aver that the cattle were in the possession
of the
Trust when the claim in reconvention was instituted, was fatal for
any reliance on the
rei vindicatio.
The claim based on this
ground accordingly does not disclose a cause of action, alternatively
lacks averments necessary to sustain
a cause of action against the
Trust.
[18]
Mr Nepgen submitted that paragraph 23 must be read together with
paragraphs 24 and 25 of the claim in reconvention. It is plainly
implicit in paragraphs 24 and 25 that the claim for the return of the
cattle is premised on the basis that the cattle are in the
possession
of the Trust. He submitted that it is evident that the alternative
claim for damages is premised on the basis that the
cattle are either
no longer alive or have been disposed of by the Trust. This carries
with it an implicit averment that the claim
for the return of the
cattle is premised on the basis that they are still alive and have
not been disposed of and are thus in possession
of the Trust. The
claim in reconvention can be reasonably interpreted to contain such
an implicit averment.
[19]
Mr Grundlingh submitted in reply that the respondent does not take
issue with the trite principle that he had to allege that
the Trust
was in possession of the cattle when the claim in reconvention was
instituted in order to succeed with the
rei vindicatio
. It is
common cause that no such pertinent allegation appears from the claim
in reconvention. The reliance on paragraphs 24 and
25 of the claim in
reconvention was misplaced. These paragraphs can by no stretch of the
imagination be construed as by necessary
implication averring that
the Trust was in possession of the cattle at the time that the claim
in reconvention was instituted.
This ignores the clear wording of
paragraph 23 that the whereabouts of the cattle was unknown to the
respondent.
[20]
I agree with the submission of Mr Grundlingh that the averments in
paragraphs 24 and 25 are not susceptible to the interpretation
that
the cattle were in the possession of the Trust at the time when the
claim in reconvention was instituted. This conflicts with
the express
averment in paragraph 23 that the respondent was unaware of the
whereabouts of the cattle.
[21]
It follows that the exception in this regard must be sustained.
(ii)
Actio ad exhibendum
[22]
With regard to the alternative damages claim based on the
actio ad
exhibendum,
it was submitted on behalf of the excipients that it
was incumbent upon the respondent to aver that the loss of possession
of the
cattle by the Trust was
mala fide.
The respondent
failed to do so in the claim in reconvention. The exception is to the
following effect:
“
3.6 In order to
succeed with the alternative claim premised on the actio ad
exhibendum the First Defendant has to allege that the
loss of
possession of the cattle by the Werner Buchner Family Trust was mala
fide.
3.7 The First
Defendant has failed to aver that the loss of possession of the
cattle by the Werner Buchner Family Trust was mala
fide.
3.8 The First
Defendant’s claim alternative
(sic)
based on the actio
ad exhibendum accordingly does not disclose a cause of action
alternatively lacks averments necessary to sustain
a cause of action
against the Werner Buchner Family Trust.”
[23]
Mr Nepgen indicated that through an oversight the present ground of
exception was not dealt with in his heads of argument.
It should not
be understood as a concession that there is merit in this ground. He
in fact submitted that the short answer to the
exception is that it
is not supported by the applicable law in that it is not a
requirement for the respondent to have alleged
mala fides
on
the part of the Trust as contended by the excipients.
[24]
Reference was made to a number of authorities in the excipients’
heads of argument (which was repeated in oral argument)
in apparent
support of their contention that an allegation of
mala
fides
was necessary to sustain a cause of action based on the
actio
ad exhibendum
.
Only two of the authorities referred to come anywhere close to
supporting this submission. Both are judgements by single judges
in
the Gauteng Division handed down in quick succession during August
2019.
[4]
I do not read these
judgements as authority for the proposition that a claimant must
allege
mala
fides
on the part of the defendant as one of the necessary elements of the
actio
.
If this had been their effect I would be in respectful disagreement.
Both judgements baldly state, without reference to authority,
that
the plaintiff must aver and prove that the defendant’s loss of
possession was
mala
fide.
The
judgments go on to state that the plaintiff has to prove that the
defendant intentionally disposed of the property or caused
its
destruction intentionally or negligently. The latter statement is in
line with the requirements for the
actio
set out by the Supreme Court of Appeal in
Rossouw
NO v Land & Agricultural Development Bank of South Africa:
[5]
“
In order to
succeed with the actio ad exhibendum, the Bank had to prove the
following requirements:
(a) that it was the
owner of the pivots at the time of its disposal by the Trust;
(b) that the Trust had
been in possession of the pivots when it disposed of them;
(c) that the Trust
acted intentionally in that it had knowledge of the Bank’s
ownership or its claim to ownership when it
parted with possession of
the pivots;
(d) that the Bank
would be entitled to delictual damages as well as the extent thereof
(taking into account inter-alia the value
of the pivots when the
Trust had sold them).”
[25]
It is of note that neither of the abovesaid two decisions in the
Gauteng Division referred to the earlier decision in that
Division in
the matter of
Unimark
Distributors (Pty) Ltd v Erf 94 Silvertondale (Pty) Ltd
[6]
where the following was stated:
“
For the actio
ad exhibendum to succeed, the plaintiff must prove, in addition to
ownership, that the defendant was in possession
of the property, that
the defendant disposed of the property with knowledge of the
plaintiff’s ownership and that the plaintiff
suffered
patrimonial loss, as well as the amount which the plaintiff is
entitled to. What is required is therefore an intentional
act of
dispossessing and
an element of mala fides
.”
(emphasis
supplied)
[26]
In my view the statement in the above extract constitutes the
highwater mark with regard to
mala fides
in the present
context. It is a manner of characterising the required state of mind
of the possessor of the
res
at the time of disposing thereof.
Where the possessor intentionally disposes of the
res
while
being aware of the ownership of the claimant, it is convenient to
describe such conduct as entailing “
an element of mala
fides”.
This is clearly not equivalent to stating that
mala
fides
is an independent element of the
actio ad exhibendum
which must be pleaded so as not to render a claim based on the
actio
to be excipiable
.
I have not been referred to any
binding authority to that effect nor am I aware of such authority. It
accords with considerations
of justice, fairness and logic that the
claimant should not be burdened with an onus of establishing
mala
fides
as an independent element of liability for claims in terms
of the
actio ad exhibendum
over and above the requirement of
either
dolus
or
culpa
on the part of the possessor
.
[27]
For the purpose of deciding the exception, I accordingly proceed on
the basis of the legal position as expounded above. I therefore
find
that it was not a legal requirement in respect of the claim premised
upon the
actio ad exhibendum
for the respondent to have
averred that the actions of the Trust in disposing of the cattle were
mala fide.
[28]
It follows that there is no merit in the exception to the alternative
damages claim under the third claim in reconvention and
that the
exception falls to be dismissed.
Costs
and relief
[29]
Mr Grundlingh submitted that if the exceptions are upheld, the
defects in the claim in reconvention are incapable of being
cured and
the claim should be dismissed out of hand. No useful purpose would be
served by affording the respondent an opportunity
to amend the claim
in reconvention. In the event of the court finding in the excipients’
favour in respect of some of the
exceptions only, this would still
amount to substantial success in which event they should be awarded
their costs. He submitted
that in view of the complexity of the
matter, it was reasonable for the excipients to engage the services
of two counsel and they
are entitled to recover such costs. He
submitted that the court also has the option of referring the
exceptions for adjudication
by the trial court.
[30]
Mr Nepgen submitted that in the event of the court finding for the
excipients in respect of only some of the exceptions, each
party
should be ordered to pay their own costs. In any event, the
excipients are not entitled to the costs of two counsel which
is not
justified in the circumstances of the present matter. Both the
particulars of claim as well as the notice of exception were
prepared
and signed under the name of an attorney. Counsel was only engaged by
the excipients to argue the exception. Furthermore,
the respondent
has only engaged the services of one counsel. Mr Nepgen submitted
that it would not be appropriate to refer the
exceptions to the trial
court. I agree with this submission. In my view it would be in the
best interests of both parties for the
exceptions to be disposed of.
The matter has been fully argued and is ripe for a decision.
For the sake of completeness,
it should be pointed out that I am in
agreement with the submission of Mr Nepgen that the employment of two
counsel was not justified
in this matter.
[31]
In light of the mixed success of the parties I am of the view that it
would be just and fair for each party to pay their own
costs.
Conclusion
[32]
In the result I make the following order:
(a) the exception
to the respondent’s third claim in reconvention premised upon
the
rei vindicatio
is upheld;
(b) the respondent
is granted leave to amend the abovesaid third claim in reconvention
within 30 days of the date of this
order;
(c) save as
aforesaid, the exception is dismissed;
(d) each party shall pay
their own costs.
D.O. POTGIETER
JUDGE OF THE HIGH
COURT
APPEARANCE
Counsel
for the plaintiffs/excipients:
Adv
R Grundling and Adv ASL van Wyk,
instructed by
Hefferman Attorneys, c/o Dold & Stone,
10
African Street, Makhanda
For
the first defendant:
Adv
JJ Nepgen<
instructed
by Goldberg & de Villiers Inc, c/o Netteltons,
118A
High Street, Makhanda
Date of
hearing:
23 February 2023
Date of delivery of
judgment: 16 March
2023
[1]
Clause 11.1 of the lease agreement stipulates as follows:
“
Die Verhuurder
en die Huurder kom hiermee ooreen dat hierdie ooreenkoms
gekanselleer kan word deur skriftelike kennis aan die
ander party te
gee dat hierdie ooreenkoms binne drie maande na die datum van
kennisgewing beendig sal word. Die partye kom verder
ooreen dat
hulle verskeie domicilia vir hierdie kennisgewing die volgende sal
wees:
Die Verhuurder:
Lidney plaas, distrik Alexandria
Die Huurder:
Boslaagte plaas, distrik Alexandria”
[2]
1990(1) SA 1 (A) at 6
[3]
Vulcan
Rubber Works (Pty) Ltd v South African Railways and Harbours
1958 (3) SA 285
(A) at 289F-G; Chetty v Naidoo 1974(3) SA 13 (A) at
20B-C.
[4]
Iceland
Industrial Projects (Pty)Ltd v Matthews
(53514/2011) [2019] ZAGPPHC 411 at para [36];
Visser
& Ano v Moore
(27676/2014) [2019] ZAGPPHC 426 (30 August 2019) at para [15].
[5]
[2013] 4 All SA 318
(SCA) at para [4]. No reference was made by the
court to a requirement of
mala
fides.
[6]
1999(2) SA 986 (D) at 1011I-1012B.