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[2019] ZAGPPHC 169
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Burger v Nair and Another (67056/2018) [2019] ZAGPPHC 169 (31 May 2019)
REPUBLIC OF SOUTH AFRICA
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 N0:67056/2018
30/5/2019
In
the matter between -
CORNELIUS
CRONJE BURGER
Plaintiff
and
SUGENTHIREN JOHN
NAIR
First
Defendant
RIAAN
BREDENKAMP
Second
Defendant
JUDGMENT
STRYDOM
AJ
[1]
This
is an exception raised against the plaintiff's particulars of claim.
[2]
The
plaintiff sued the defendants jointly and severally, the one paying
the other to be absolved for an amount of R700 000 plus
interest. The
plaintiff based his claim on contract and in, the alternative, on
unjust enrichment.
[3]
When
an exception was raised against the contractual claim, the plaintiff
by way of notice withdrew this claim. The second defendant
then
pleaded to the alternative claim. The first defendant then raised a
further exception against the alternative claim.
[4]
Three
grounds of exception were raised, each of which relate to the
plaintiff's claim for enrichment against first defendant. The
second
defendant pleaded to the claim.
[5]
The
plaintiff raised a point
in limine
that the exception was delivered out
of time. The plaintiff did not pursue this point.
[6]
The
first defendant raised three causes of complaint. Paragraph 10 of the
alternative claim reads as follows:
"In the alternative to the
plaintiff's main claim and only if it is found that no binding and/or
enforceable contract came
into being, then and in that event only,
plaintiff claims from first and second defendants jointly and
severally
as
stated infra."
[7]
According
to this paragraph, the plaintiff's claim is still rendered
conditional upon a finding whether or not the contract which
was the
subject matter of the main claim is unenforceable or not. It was then
argued that paragraph 12 of the particulars of claim
is in conflict
with this paragraph, rendering the pleading vague and embarrassing,
as it is stated:
"In the bona fide belief
that the contract was valid and enforceable in all respects
...
"
[8]
This quoted portion implies that the
contract was not valid and enforceable in all respects. This is in
conflict with paragraph
10 to the extent that paragraph 10 still
leaves the question open whether the contract was enforceable or not.
[9]
I am of the view that this contradiction
is occasioned by the changed circumstances, i.e. the withdrawal of
the main contractual
claim. After the withdrawal of the contractual
claim the claim for unjust enrichment is based on the
unenforceability of the contract.
I am further of the view that the
plaintiff should have amended paragraph 10 by alleging that the
contract was unenforceable for
whatever reason. This would have
tidied-up the particulars of claim after the withdrawal of the main
claim.
[10]
It was argued on behalf of the excipient that if the first defendant
for instance plea to paragraph 10 that the contract
was in fact
enforceable it will render the entire further enrichment claim
meritless. I do not agree with this argument as the
plaintiff can
then in reply challenge this plea by alleging that the contract is in
fact unenforceable. A legal dispute would thus
be raised which will
then be determined as part of the action on the alternative claim.
[11]
As
stated there exists some confusion if paragraph 10 and paragraph 12
of the particulars of claim are compared. I am of the view
however
that in light of the withdrawal of the main claim the excipient is
not prejudiced by this vagueness. If the pleading is
considered in
its totality it becomes clear that the plaintiffs claim is based on
unjust enrichment on the basis that the contract
was invalid and
unenforceable. The first defendant cannot be embarrassed, let alone
prejudiced, by the contents of paragraph 10
read with paragraph 12.\
[12]
The
other two causes of complaint raised by the excipient relate to
annexure B to the particulars of claim. The plaintiff alleges
that it
made payment or caused payment to be made in the amount of R700 000
to the defendants, jointly and severally, on 2 November
2015 by way
of an electronic funds transfer into the nominated bank account of
the first and second defendants. In confirmation
of this the
plaintiff then annexed a document marked "B".
[13]
If
the document is considered, it purports to be a printout on the
letterhead of Standard Bank addressed to Johann. It reads that
it
confirms that the following payment has been made into an account
from Johann. The beneficiary's name is SJ Nair. The amount
is R700
000 and the beneficiary reference is M Coetzee. It was argued when
this document is considered in conjunction with the
contents of
paragraph 12, it is in conflict with the allegations contained in
this paragraph in two ways. First, the payment was
made to SJ Nair,
the first defendant, and not to the first and second defendants
jointly and severally. It was accordingly argued
that it renders the
pleading vague and embarrassing as it is unclear whether the two
defendants were enriched by receiving an undue
payment.
[14]
Second, as the plaintiff averred that he
either made the payment or caused the payment to be made, it is
unclear whether the plaintiff
was impoverished by making of the
payment.
[15]
These arguments in my view have no
merit. It was specifically stated in paragraph 12 that electronic
funds transfer was made into
the nominated bank account of the first
and second defendants. This can be interpreted that the account of
the first defendant
was the nominated account. If there is
uncertainty in regard to an intention, an excipient cannot avail
himself unless he shows
that upon any construction of the pleadings
the claim is excipiable.
[1]
[16]
For
the same reason the other complaint is also meritless. The plaintiff
alleged that he made the payment or caused the payment
to be made.
The "cause payment to be made" part can only be interpreted
to mean that the payment was made on behalf of
the plaintiff. The
reference to "cause payment to be made" is in line with
annexure B which refers to Johann and not
to the plaintiff. The fact
is the plaintiff also alleges that he made the payment and in my view
it would be a matter for evidence
to explain why annexure B refers to
Johann as the party that made the payment. If Johann made the payment
on behalf of the plaintiff,
it will require evidence to explain why
the plaintiff alleges that he made the payment and accordingly was
impoverished by making
the undue payment.
[17]
It was further argued on behalf of the
excipient that the plaintiff should have pleaded what the underlying
condictio
for
the unjust enrichment was. This point raised was not part of the
exception and the excipient cannot raise further grounds for
exception not mentioned in its notice of exception.
[18]
An excipient is obliged to confine its
complaint to the stated grounds of his exception.
[2]
[19]
I am of the view that the plaintiff made
all the necessary allegations to sustain a cause of action based on
unjust enrichment.
These allegations are not vague and embarrassing
to the extent that the first defendant would not be able to plead
thereto. To
the extent that there is a limited uncertainty between
the contents of paragraph 10 read with paragraph 12, this does not
prejudice
the first defendant. Accordingly the exception is dismissed
with costs.
Date
heard:
21 May 2019
Date
delivered: 31 May
2019 at 10h00
Counsel
for plaintiff/ respondent:
Adv G. F. Heyns
Counsel
for defendant/ excipient:
Adv J. M. Hoffman
[1]
Amalgamated Footwear and Leather Industries v Jordan & Co Ltd
1948(2) SA 891(C) at 893
[2]
Cotas v Williams
1947 (2) SA 1154
(T); Wicksteed v George
1961 (1)
SA 651
(FC