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[2018] ZAGPPHC 753
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Swire Express (Pty) Ltd v Gordan N.O and Another (60569/16) [2018] ZAGPPHC 753 (2 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
(1)
NOT REPORTABLE
(2)
NOT OF INTEREST TO OTHER JUDGES
(3)
REVISED
CASE
NUM BER: 60569/16
DATE:
2 March 2018
SWIRE
EXPRESS (PTY)
LTD
Plaintiff
V
PRAVIN
GORDAN
N.O.
First Defendant
SOUTH
AFRICAN RESERVE
BANK
Second Defendant
JUDGMENT
MABUSE
J :
[1]
In this act ion the Plaintiff seeks an
order in terms whereof:
1.
Notice
272 of 2016 is set aside;
2.
the
First Defendant, alternatively the Second Defendant, further
alternatively both Defendants are ordered jointly and severally
to
pay the Plaintiff an amount of Rl,101,240.00 together with interest
and accruals thereon as at May 2016;
3.
interest
thereon
a tempore morae.
[2]
The
Plaintiff is a company with limited liability registered in terms of
the company laws of the Republic of South Africa with its
registered
address at 1st Floor Finance House, 25 Ernest Oppenheimer Avenue,
Bruma, Gauteng. The First Defendant is cited herein
in his capacity
as head of the South African Ministry of Finance, Department of
National Treasury. The Second Defendant is the
South African Reserve
Bank, the central bank of the Republic of South Africa established as
such in terms of the Currency and Bank
Act of 10 August 1920 with its
principal place of business at 370 Helen Joseph Street , Pretoria.
[3]
The
Plaintiff' s case must be seen against the following background.
During October 2014 the Plaintiff had purchased foreign currency
from
Bidvest Bank. The said foreign currency was the purchase price
destined for a foreign company for the purchase of, inter alia,
motor
vehicles and equipment. This purchase price could not be paid over as
the Second Defendant, acting in terms of the Regulations,
prevented
payment thereof and queried certain aspects of the transaction. These
queries were all answered by the Plain tiff . In
addition the
Plaintiff provided the Second Defendant with an explanatory affidavit
in which it set forth the bona fide and lawful
purpose of the
transactions. On or about 8 July 2015 the Second Defendant sent a
letter, in terms of
s 9
of the
Currency and Exchanges Act 9 of 1933
,
to the plaintiff. In the said letter the Second defendant had set out
a list of several Regulations that it was alleged the Plaintiff
had
flouted or was suspected of having contravened either when he entered
into the transaction or bought foreign currency. Furthermore
the said
letter prohibited any withdrawal of the money in the said bank
account.
[4]
I
now turn to m a consideration of the Particulars of claim in the
present matter and complaints on which the exception is based.
The
Plaintiff pleaded its case as follows:
"15. On
6 May 2016 the Second Defendant published Notice 272 of 2016
(attached as "E") in
the Government Gazette ordering that
the capital amount of R1 ,101,240.00 in the account, together with
interest and accruals thereon
(the "monies"}, be forfeited
to the State (the 'forfeiture").
16.
In deciding to order the
forfeiture the Second Defendant did not properly exercise its
discretion as it acted capriciously, without
having properly applied
its mind and without there being a proper factual basis for the
decision as:
16.1
the
Plaintiff had not contravened any provision of either the Act or the
Regulations, whether listed in the
Section 9
letter or at all; and
16.2
the
decision was made without the Second Defendant having grounds upon
which to form a reasonable suspicion that the Plaintiff had
contravened any provision of either the Act or the Regulations,
whether listed in the
Section 9
letter or at all;
17.
Alternatively
in
the event of the Honourable Court finding that the Plaintiff had
contravened the Regulations or that sufficient grounds to form
a
reasonable suspicion of such contravention were available to the
Second Defendant when the decision to order the forfeiture was
made,
then and in that event , the Plaintiff pleads that the Second
Defendant's discretion was still not properly exercised as
in the
circumstances the forfeiture has caused an injustice and undue
hardship,
further
alternatively
the Second
Defendant failed to consider whether the forfeiture would cause
injustice and undue hardship.
18.
In the premises the monies stand
to be returned to the Plaintiff."
The
bank account referred to in paragraph 15 of the Particulars of Claim
is account number 1130000064 under the name of Swire Express
with
Bidvest Bank.
[5]
The Second Defendant raised an exception against the Plaintiff's
particulars of claim
on the grounds that they are vague and
embarrassing and do not disclose any cause of action . Nowhere in the
Particulars of Claim
has the applicable law been identified. In
particular the Second Defendant contended that its decision to
declare or forfeit the
money constituted an administrative action
which stood as a fact until it was set aside.
[6]
In
his heads of argument counsel for the Plaintiff stated that the
forfeiture of the said amount was done in terms of the provisions
of
Regulation 22B
of the Regulations ("the Exchange Control
Regulations") made under
Section 9
of the
Currency and Exchanges
Act No. 9 of 1933
, as amended. Regulation 220 of the Exchange Control
Regulations provides as follows:
"Any
person who feels himself aggrieved by the attachment of any money or
goods under paragraph (a) of regulation 22A(l) or
regulation 22C(l}
or the issue or making of an order under the provisions of paragraph
(b) or (c) of regulation 22A{l ) or sub
regulation (2) of regulation
22C or any condition imposed thereunder may-
(b)
in the case of a decision under regulation 228(1) or 228(1), read
with regulation 22C(3), to forfeit
to the State such money or goods,
at any time but not later than
90
days after the date of publication of
the said notice institute an action in a competent court for the
setting aside of any such
decision,
And
any such court may set aside any such attachment or order or
decision, as the case may be, on the grounds set out in the
provisions
of paragraph (d}(i) or (iii} of section 9(2) of the Act."
[7]
He
stated furthermore in his heads of argument that the said Regulation
22D does not set out any grounds for the bringing of an
action but
only requires that the action must be brought within 90 days of the
notice in a competent court. According to him, an
action in terms of
the regulations is different from a review application in terms of
the
Promotion of Administrative Justice Act, 3 of 2000
. Finally, he
submitted in his heads that a person whose funds or goods have been
forfeited under
Regulation 22B
and who is aggrieved thereby must
proceed by means of an action in terms of
Regulation 22D.
[8]
Unfortunately
what counsel for the Plaintiff stated in his heads of argument was
not, as argued by Ms Muller, counsel for the Second
Defendant and
duly assisted by Adv. K Magano, contained in the Plaintiff' s
particulars of claim. As the matter stands t h e feet
of clay in the
Plaintiff's case is that the Plaintiff made out its case in it s
counsel' s heads of argument, which is not permissible
and not in his
particulars of claim., in other words, what the counsel has stated in
his heads of argument would have made a good
case for the Plaintiff
had it been stated in the Particulars of claim.
[9]
Ms.
Muller argued that the Second Defendant is not so much concerned with
the merits of the Plaintiff's claim as he was with the
source or the
basis of the Plaintiff' s cause of action. The merit s of the
Plaintiff's claim are, as far as it is concerned, not
in dispute. She
argued, in the first place, that, in pleading its case, the Plaintiff
must comply with Rule 18 (4) of the Uniform
Rules of Court, which
provides that :
"Every
pleading shall contain a clear and concise statement of the material
facts upon which the pleader relies for his claim,
defence or answer
to any pleading, as the case may be, with sufficient particularity to
enable the opposite party to reply thereto
."
Furthermore
in support of her argument , she relied on a paragraph she referred
'this Court to in the case of Yannikou v Appollo
Club 1974(1) SA
614(A), where the Court had the following to say:
"Hence if
he relies on a particular section of the Statutes he must either
state the number of the
section and the statutes he is relying on
or formulate his defence sufficiently clearly so as to
indicate
that he is relying on it."
See also Trope v South African
Reserve Bank and Another
1992 (3( SA 208
TPD, 210F- 211E; Nasionale
Aartappel Kooperasie Bpk v Price Waterhouse Coopers Ing 2001(2) SA
790 (T), 798F-79 9J.
[10]
All
that was required of the Plaintiff, which he has failed to do in his
particulars of claim and which is the principle reason
the except ion
must succeed , is that in failing to comply with the provisions of Ru
le 18 (4) of the Uniform Rules of Court the
Plaintiff failed to plead
whether he relied on the provisions of Regulation 220 of the Exchange
Control Regulations or the provisions
of the Promotion of Justice Act
3 of 2000. Accordingly, the Plaintiff's claim is not formulated with
any measure of clarity . The
Second Defendant will be embarrassed and
prejudiced should the Plaintiff be allowed to lead evidence on facts
which the Reserve
Bank allegedly should have conceded in coming to
the decision to declare the money forfeited. It would also be
prejudiced should
the Plaintiff be allowed to lead factual evidence
substantiating a ground of review listed in section 6 of PAJA but not
identified
in the particulars of claim.
[11]
I have therefore concluded that the
Plaintiff's particulars of claim fail to set out a cause of action
or, alternatively, lack the
necessary averments to sustain a proper
cause of action. Finally the averments are vague and embarrassing .
Accordingly
, the following order is made:
1.
The exception is hereby upheld, with
costs;
2.
The Plaintiff is hereby granted leave to
amend its Particulars of Claim to remove the cause of complaint
within fifteen (15) days
of this order.
M
MABUSE
JUDGE
OF THE HIGH COURT
Appearances
:
Counsel
for the Plaintiff
:
Adv. DJ Erasmus
Instructed
by:
Luu Mawela Attorneys
Counsel
for the Second Defendant/Excipient:
Adv. E Muller
Adv.
K Magano
Instructed
by:
Gildenhuys Malatji Inc
Date
heard:
28 February 2018
Date
of
Judgment:
2 March 2018