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[2020] ZAGPPHC 38
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Kole v Pienaar and Others (44064/19) [2020] ZAGPPHC 38 (11 February 2020)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES/
NO
(3)
REVISED
Case
number 44064/19
10/2/2020
In
the matter between
NICHOLAS
N KOLE
PLAINTIFF
And
JACOBUS R K
PIENAAR
FIRST DEFENDANT/EXCIPIENT
CREDIT
BUILD BUILDING SUPPLIES (PTY) LTD
SECOND DEFENDANT
KOBUS
VAN DER WESTHUIZEN N.O
THIRD DEFENDANT
MOLELEKWA
ASHWORTH TAU N.O
FOURTH DEFENDANT
MASTER
OF THE HIGH COURT
FIFTH DEFENDANT
AIR
CHEFS SOC LTD
THIRD DEFENDANT
MINISTER
OF FINANCE
FOURTH DEFENDANT
JUDGMENT
VAN STADEN. AJ:
[1]
In this matter the plaintiff inter alia sues the defendants for
payment of tile amount
of R90 000, the amount the plaintiff paid to
the second defendant over a period of lime as lay-buy payment for
tiles and roofing
material.
[2]
The first defendant Is the director of the second defendant, a
company In liquidation
The third and fourth defendants are the
liquidators of the second defendant.
[3]
The plaintiff resides in Soshanguve and has been building a dwelling
on his erf In
Soshanguve since 2005, by sourcing material from
companies such as the second defendant.
[4]
Section 65
(2) of the
Consumer Protection Act 68 of 2008
determines:
'(2) When a supplier has
possession of any prepayment, deposit, membership fee, or other
money, or any other property belonging
to or ordinarily under the
control of a consumer, the supplier-
(a)
must not treat that property as being
the property of the supplier:
(b)
in
the handling, safeguarding and utilisation of that property, must
exercise the degree of care, diligence and skill that can reasonably
be expected of a person responsible for managing any property
belonging to another person, and
(c)
is
liable to the owner of the property for any loss resulting from a
failure to comply with paragraph (a) or (b),
[5]
The plaintiffs particulars of claim (the POC) allege that the first
and second defendants
did not comply with secbon65 (2) of the CPA
[6]
The first defendant raises
an
exception against the POC,
alleging that no cause of action is disclosed as regards himself.
[7]
During argument Mr Letswalo for the plaintiff conceded that no cause
of action1s disclosed
in the POC as regards the first defendant He
attempted to widen the cast net, by saying that one should have
regard to all the
circumstances of the matter , to determine Whether
a cause of action is disclosed.
[8]
This is unfortunately not sufficient. As indicated by Van
Loggerenberg
Erasmus
Superior Court Practice, at page D1-303·
'In suitable, cases legrt1mate
inferences can be drawn as to the meaning of the particulars and by
Implication the necessary averments
can be supplied. However, while,
the court should endeavour to look benevolently instead of over
critically al a
pleading,
it should not push that benevolence
to the length of upholding a declaration or particulars or claim
which as it stands discloses
no cause of action,
by
altering
its language, by reading into it what Is not there, and ignoring what
is, and by thus making for the plaintiff a cause
of action he has not
himself put up.'
[9]
I am satisfied that the POC in casu do not make out a cause of action
and to find
that it does, would push the court's benevolence to an
unacceptable length The first defendant's exception ls accordingly
upheld.
[10] I am.
however, not satisfied that the normal rule in respect of costs
should
follow
t believe it would be fair and just that no order as to costs be
made.
[11]
Section 65
(2) of the CPA places a heavy burden on a supplier to deal
appropriately with the money of a person who acquires goods or
services
on lay-buy. The first defendant, as director or the second
defendant, was its controlling mind. Ultimately he decided how the
money,
albeit paid into the second defendant's bank account. had to
be dealt with. Ultimately he was responsible for the manner in which
the plaintiffs money was dealt with.
[12]
The money was entrusted to the second defendant -for something very
close to the plaintiff his d welling.
He saved up for his dwelling
over a long period of time and to penalize him with costs for doing
so, where he Is attempting to
recover the money he had saved up,
would be unjust and unfair.
[13] This
is especially so bearing in mind the heavy burden placed on both the
first and second defendants
in terms of
section 65(2)
of the CPA. In
dealing with the plaintiff's money.
[14]
Accordingly, I make the following order.
1
The first defendant's exception is upheld and the plaintiff’s
particulars of claim Is
set aside as far as the first defendant is
concerned.
2.
The plaintiff is granted leave to amend
his particulars of claim within 15 days from date of order.
3.
There is no order as to costs.
M VAN STADEN
ACTING JUDGE OF THE HIGH COURT
OF SOUTH AFR1CA
GAUTENG
DIVISION, PRETORIA
DATE
OF HEARING: 10 FEBRUARY 2020
DATE
OF JUDGMENT: 11 FEBRUARY 2020
ATTORNEY
FOR EXCIPIENT: LOMBARD & PARTNERS INC
ADVOCATE
FOR EXCIPIENT: ADV LERM
ATTORNEY
FOR PLA.INTIFF: MB POTGlETER ATTORNEYS
ADVOCATE
FOR PLAINTIFF: ADV LETSWALO