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[2018] ZAGPPHC 730
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Government Employees Pension Fund v Van Rooyen and Another (52149/2015) [2018] ZAGPPHC 730 (22 March 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
Case
Number: 52149/2015
22/3/2018
In
the matter between:
GOVERNMENT
EMPLOYEES PENSION FUND
Applicant
And
ADRIAAN
WILLEM VAN ROOYEN
First Respondent
LOUISE
MULLER
Second Respondent
JUDGMENT
IN THE APPLICATION FOR LEAVE TO APPEAL DELIVERED ON
22
MARCH 2018
VILAKAZI
AJ:
1.
This
is application for leave to appeal against my order that I granted on
the 29th May 2017 upholding the exception by the Respondents
that the
applicant's Particulars of Claim does not disclose a cause of action
and I afforded the applicant an opportunity to amend
its Particulars
of Claim within 20 days of the order.
2.
The
applicant instituted two claims against the respondents jointly and
severally for damages it alleges it suffered as a result
of the
respondents unlawful conduct, in allowing ASP( in liquidation)to
continue to occupy and trade from the applicant's premises,
despite
the absence of the lease. The first claim is for the payment of
rentals it would have received but for the respondents'
unlawful
conduct. The second claim is for the payment of the amount it had
paid to the Municipality for electricity and water consumed
by
African Spirit 90 Proprietary Limited (in liquidation) whilst it
remained in unlawful occupation of the applicant's premises.
3.
The
applicant's claims have their genesis from the lease agreement
concluded by the applicant and African Spirit ( in liquidation)in
respect of the premises belonging to the applicant. The applicant
alleges that before its liquidation, African Spirit occupied
the
applicant's premises in terms of a lease agreement. African Spirit in
breach of the lease failed to pay monthly rentals and
as it was
entitled to, the applicant issued summons against African Spirit for
payment of arrear rental and for the cancellation
of the lease.
4.
In
the meantime, African Spirit was liquidated at the instance of one of
its creditors. The respondents were appointed joint liquidators
of
African Spirit on 22 December 2014.The applicant alleges that upon
their appointment as joint liquidators the respondents unlawfully
allowed African Spirit to continue to occupy and trade from the
premises. In support of its claim against the respondents it relied
on an email dated 16 February 2015 written by the first respondent to
the creditors of African Spirit in which it reads as follows:
"Please
note that there is not a danger of contribution at this stage, we are
trading the company in liquidation at this stage
and therefore did
not vacate the premises"
5.
The
respondents excepted to the applicant's particulars of claim on the
ground that that it does not disclose the cause of action.
In
amplification of their plea the respondents averred the following in
paragraph 10 of the exception:
"
The respondent does not allege negligence and or recklessness or any
other conduct on the part of the First and the Second
Excipients
which would substantiate that the First and the Second Excipients are
personally liable for the relief sought."
6.
The
applicant's claims are based on delict and in order to establish a
case for personal liability against the respondents it has
to plead
all the essential requirements for delict including fault.
7.
At
the hearing of the application, I
invited counsel for the parties to address me on whether the order I
made is appealable having
regard to the fact that I afforded the
applicant the opportunity to amend its Particulars of claim within
the period of 20 days.
Mr Gibbs on behalf of the applicant submitted
that my order is definitive of the rights of the parties in that I
have determined
that the respondents are afforded protection in terms
of s37(1) of Insolvency Act 24 of 1937. He argued that the thrust of
my judgment
bars the applicant from holding the respondents
personally liable.
8.
In
response thereto, Mr Greyling, for the respondents conceded that my
order is final. In my view this concession is incorrect.
9.
It
is evident from the particulars of claim that negligence has not been
alleged by the applicant. In my view the email viewed objectively
cannot be interpreted as establishing the basis for holding the
respondents personally liable for the loss suffered by the applicant
nor can negligence be inferred from it. Reliance by the applicant on
the email was therefore misplaced.
10.
There
is no averment in the particulars of claim that the respondents were
aware that the lease between ASP and the applicant had
terminated and
that despite that knowledge they allowed ASP to trade from the
premises. This was not pleaded and averred in the
particulars of
claim.
11.
I am not satisfied that the applicant is
not able to amplify its particulars of claim in the relevant respect
and that being the
case, my order is therefore not appealable.
12.
For the reasons set out above, the
application for leave to appeal should fail.
13.
The application for leave to appeal is
accordingly dismissed with costs.
T.
D VILAKAZI
ACTING
JUDGE OF THE GAUTENG DIVISION
OF
THE HIGH COURT OF SOUTH AFRICA
DATED
AND SIGNED AT PRETORIA ON 22 MARCH 2018
FOR
THE APPLICANT
:
ADV
W.W. GIBBS
INSTRUCTED
BY
: WESSELS
& VAN ZYL LE ROUX
FOR
THE RESPONDENTS
: ADV
P.
J. GREYLING
INSTRUCTED
BY
:
SCHABORT& WALKER ATTORNEYS
DATE
HEARD
: 20 MARCH 2018
DATE
DELIVERED
: 22
MARCH 2018