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[2017] ZAFSHC 55
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Mangaung Metropolitan Municipality v Maluti Plant Hire (A19/2016) [2017] ZAFSHC 55 (9 February 2017)
IN
THE
HIGH
COURT
OF
SOUTH
AFRICA,
FREE
STATE
DIVISION,
BLOEMFONTEIN
Case
Number: A19/2016
In
the matter between:
MANGAUNG
METROPOLITAN
MUNICIPALITY
Appellant/ Plaintiff
and
MALUTI
PLANT
HIRE
Respondent/ Defendant
CORAM:
MOLEMELA JP,
et
HANCKE J,
et
TSATSI AJ
JUDGMENT
BY:
TSATSI, AJ
HEARD
ON:
14 NOVEMBER 2016
DELIVERED
ON:
9 FEBRUARY 2017
INTRODUCTION
[1]
This was an appeal against the whole of the judgment and order
of Naidoo J, delivered on 26 May 2015. Leave to appeal
was granted by
the Court a quo on 18 November 2015.
[2]
The respondent (plaintiff in the Court a quo) instituted an
action against the appellant (defendant in the Court a quo)
for
payment of the amount of R 2 760 854, 76 for services rendered by the
respondent to the appellant. For the sake of convenience
the parties
will be addressed as appellant and respondent.
[3]
The Court a quo granted the following order:
“
In
the circumstances I am satisfied that plaintiff has established its
claim in
respect of the alternative and I grant the
following order:
5.
Payment
in
the
amount
of
R2
760
854,
76.
Interest
on
the
aforesaid
amount a tempore morae and costs of
suit
”.
[4]
The notice of appeal reflects
inter
alia
the
following grounds of appeal:
“
1.
The
learned
Judge erred
in
not
dismissing
the respondent’s
claim,
where the respondent had correctly
conceded and abandoned the
unsustainable
contractual
claim
against
an
organ
of
state.
Once
the respondent abandoned the contractual
claim as it was inconsistent with the Construction, Municipal Finance
Management Act and
supply chain
laws and regulations of
the appellant, it was not competent of the court to determine the
alternative claim of unjust enrichment.
2.
The learned Judge erred in finding that the evidence led by
the respondent was sufficient to discharge the onus to succeed on a
claim based on unjustified enrichment.
3.
The
Learned
Judge
erred
in
finding
that
the
court
was
not
required
to engage in the exercise of determining by what amount the
Plaintiff was impoverished and by what amount the Defendant was
enriched”
FACTS
[5]
It is common cause that:
5.1
The respondent instituted an action against the appellant as follows:
Claim
one
5.1.1
Payment of R1 257 294, 60 based on the oral agreement entered into
between the respondent
and the appellant. The appellant was duly
represented by Mr Jacob Lourens and the respondent was duly
represented by Mr. Drake
Kwashie Ahadji.
5.1.2
The oral agreement was for the hire of equipment TLB’s,
bulldozers,
backloaders and landfill compactors.
Claim
two
5.2.1
Payment of the amount of R1 257 294, 60 and R1 814 027, 02 on a
written service
delivery agreement which was attached to the
particulars of claim as annexure “B”.
5.2.2
The written agreement was for the hire of equipment comprising TLB’s,
Bulldozers and compactors.
ALTERNATIVE
TO CLAIM ONE AND TWO ABOVE
[6]
It being found that no valid agreement and/or agreements existed
between plaintiff and defendant, plaintiff asked for the payment
of
the amounts of R1 257 294,60 and R1 814 027,02 based on common law
claim of unjustified enrichment.” At the commencement
of the
proceedings, the latter amount was amended to R1 510 560, 60.
ISSUES
[7]
The crux of the matter is whether or not the respondent had
established that he was entitled to payment, on the evidence led,
of
the amount of R 2 760 854,76 against the appellant based on
unjustified enrichment. The other issue was whether or not the
respondent satisfied its claim despite the fact that the respondent
actually abandoned the contract whose legality and validity
was a
point of dispute.
THE
APPELLANT EVIDENCE
[8]
The appellant did not lead evidence in the Court a quo. At the
end of the trial the defendant’s attorney excused
himself. The
matter was unopposed.
THE
RESPONDENT’S EVIDENCE
[9]
The version of the respondent was narrated by Mr. Drake Kwashie
Ahadji, who is the sole member of the respondent. The respondent
is
Maluti Plant hire CC.
[10]
Mr Ahadji testified as follows: He concluded an oral agreement with
Jacob Lawrence, a manager of Solid Waste Department of
the appellant
(‘the manager’) around April 2005. It was agreed that the
respondent will supply earthmoving machines
to Solid Waste department
to be used on the landfill site. It was also agreed that the machines
would be supplied with operators
and timesheets. The representatives
of both the appellant and respondent would sign the timesheets every
day. The respondent would
have to collect the timesheets everyday
based on the signatures of both parties. Subsequent to that the
respondent will calculate
the total hours worked for the month and
then issue an invoice to the appellant. The respondent will submit a
quotation and then
the appellant would issue a written order.
[11]
It was Mr Ahadji’s, testimony that the appellant told him (“the
respondent”) that there was a backlog at
the supply chain and
the respondent was asked to carry on working due to the fact that the
respondent offered essential service.
The respondent was paid for the
months of April, May and June 2011. The respondent continued working
during July, August and September
2011 but there were no orders
coming through. This resulted from the respondent stopping to work on
or around 20 September 2011
because it did not receive any orders
from the appellant. At this stage the amount outstanding was of
work done from
July to September 2011 amounting to R1 257
294, 60.
[12]
At the beginning of October 2011, Mr Lawrence the manager for the
appellant asked for the quotations from the respondent which
he
submitted. Around September 2011 a meeting was held between the
appellant’s Supply Chain Department and the Mechanical
Workshop, where Mr Ahadji furnished the manager with all outstanding
invoices of which no payment was made. Another
meeting was held at the end of September 2011 where Mr Ahadji
represented the respondent and the appellant was represented by Mr
Leco Mahoko from Solid Waste Department and Mr Willem Pretorius from
Mechanical workshop. The discussion at this meeting was that
the
landfill was piling up and there was fire when the respondent stopped
the machine. In addition it was the respondent’s
testimony that
part of the discussion was that the appellant did not have any
equipment to stop the fire and clean the place therefore
the
respondent will have to assist the appellant in that regard. When Mr
Ahadji enquired about the R250 000.00 that he was owed
he was told
that the money will be paid.
[13]
He further testified that the appellant asked him to issue quotations
for his machines which he did and the appellant provided
a written
order. The said agreement was attached to the pleadings as annexure
“B”. The said agreement was signed on
4 October 2016. The
respondent was issued with new orders from October 2011 and the
respondent was paid for until January 2012.
The respondent stopped
working in May 2012 because he was not paid the amount of R1 814 027,
02 and the invoices were attached
as annexure “C”. There
was an amount of R303 000, 00 which was not for renting the machinery
but for repair work. This
amount was to be deducted from the amount
claimed. Further testimony was that the ground engaging tools wore
out and needed to
be replaced. Mr Ahadji testified that the charges
reflected in the invoices issued by the respondent were based on the
guidelines
set out in the Contractors Plant Hire Association (CPHA).
The CPHA sets out the average recommended rates. Ground engaging
tools
are excluded from the prescribed rates of CPHA. As a result the
respondent charged more than what was recommended in the CPHA book.
This was accepted by the appellant.
[14]
Mr Ahadji testified that between 2005 and 2008 the appellant
issued tender processes three times but these processes
were not
finalised. As a result the respondent rendered services to the
appellant without tender.
[15]
He confirmed his testimony under cross examination. He further
testified that the time he issued invoices that formed part
of his
claim there were no written orders issued by the appellant in respect
of the work that was reflected in the invoice. He
indicated
that the reason why the respondent continued rendering service
despite the fact that there were no orders issued by the
appellant
was because he was asked to work due to the fact that the appellant
had a backlog. Had he known that the respondent could
not have been
paid for the work done, he would have taken the respondent’s
machines to other contractors queuing up for the
respondent’s
machines.
[16]
The timesheets were not signed daily as agreed but weekly as the
appellant’s representatives had a lot of things to do.
However
he stated that he was never present when the timesheets were signed
by either the respondent’s operator or by a representative
of
the appellant. The respondent’s contention was that it rendered
services to the appellant which entitled it for payment
as claimed.
SUBMISSIONS
[17]
Adv.
Moerane
SC,
(“Adv
Moerane”)
submitted
on
behalf
of
the
appellant
that
the
question
of
legality
and
validity
of
the
contract
was
not
dealt
with
properly.
He
submitted
that
the
respondent
abandoned
the
contract.
According
to
Adv
Moerane
this
was
fatal to
the respondent’s case.
He further
submitted that the court
a quo
should have dealt with the validity and legality of the
contract.
It
was
submitted
on
behalf
of
the
appellant
that
the
respondent’s
claim should not have been entertained on the
further
ground that
it was
based on an unlawful transaction which
was
in
violation
of
the
constitution,
the
Municipal
Finance
Management
Act
and
the
Supply
Chain
Management
laws
and
regulations
of
the
appellant.
He
argued
that
the
contract
should
have been
set aside. He submitted that the court a quo enforced
the
unenforceable
contract.
Adv
Moerane
relied
on
the
case
of
Department
of Transport and Others v Tasima (Pty) Limited
[1]
[18]
It was submitted on behalf of the appellant that the Court
a
quo
did not deal with the principles of unjust
enrichment. The argument was also that the court a quo did not do the
exercise of unjust
enrichment to ascertain the respondent’s
impoverishment and the appellants’ enrichment. He submitted
that impoverishment
meant diminishing of assets whereas enrichment
meant increasing of assets. The Court a quo should have established
the facts of
what was done to impoverish the respondent and also what
was done to enrich the appellant. He argued that the fact that the
Court
a quo included profit in the calculation of the respondent’s
claim is demonstration that the principles of unjust enrichment
were
not taken into consideration. Profit should not have been included in
the calculations of the respondent’s claim.
[19]
Adv. Moerane submitted that the onus was on the respondent to prove
enrichment. He referred us to Jacques Du Plessis: “The
South
African Law of Unjustified Enrichment”, page 40 paragraph 2.2.7
which states that: “
The
burden
of
proof
of
enrichment,
as
with
other
elements
of
enrichment
liability,
rests
on
the
plaintiff.
“……
the Courts have held that the burden of proving the quantum is also
on the plaintiff. However the burden
of proof regarding the defence
of loss of enrichment rests on the defendant”. In
addition he submitted that the respondent
was supposed to have proved
that the enrichment was unjustified at his expense. He argued that
none of the requirements were proved.
His other submission was that
even though the respondent testified that contractors were in a queue
waiting to use his machines,
none of those contractors were ever
identified. He submitted that the impoverishment should be
patrimonial in nature.
[20]
Adv. Moerane submitted that the onus was on the respondent to prove
enrichment. He referred us to Jacques Du Plessis: “The
South
African Law of Unjustified Enrichment”, page 40 paragraph 2.2.7
which states that: “
The
burden
of
proof
of
enrichment,
as
with
other
elements
of
enrichment
liability,
rests
on
the
plaintiff.
……”
the
Courts have held that the burden of proving the quantum is also on
the plaintiff. However the burden of proof regarding the
defence of
loss of enrichment rests on the defendant”. In addition he
submitted that the respondent was supposed to have
proved that the
enrichment was unjustified at his expense. He argued that none of the
requirements were proved. His other submission
was that even though
the respondent testified that contractors were in a queue waiting to
use his machines, none of those contractors
were ever identified. He
submitted that the impoverishment should be patrimonial in nature.
[21]
Adv. Snyman on behalf of the respondent conceded that the respondent
abandoned the contract. He submitted that the respondent
was
impoverished by way of using his machines and not getting
paid. He argued that the fact
that
there were contractors who were in a queue to use the
respondent’s machines was never challenged at
trial. He
submitted that it was upon the appellant to rebut the impoverishment
and enrichment issues. According to Adv. Snyman
it was proven that
the respondent was impoverished because the respondent could have
used his machines somewhere else and earned
the same amount of money.
[22]
It was submitted on behalf of the respondent that in the respondent’s
industry the charge is per hour. The charge is
nine and half hours
whether or not the machines are used. He referred us to the
record where it was stated that the charges
that the respondent made
were in accordance with the tariff except that it included two extra
items that was ground engaging equipment
and diesel which were
excluded from the tariffs set out by the CPHA. The submission was
that in the respondent’s capacity
as an expert in the field he
has worked in this field for many years and according to the
respondent whether or not it was him
doing the work or somebody else
the same charge would have accrued.
[23]
Adv. Snyman submitted that as the evidence stands the respondent has
fulfilled his obligations. The onus of rebuttal rested
squarely on
the appellant. The appellant should have proved that the respondent’s
machines did not enrich the appellant.
The appellant failed to prove
this fact. Adv. Snyman further argued that the principles of
enrichment do make provision for profits.
The Court a quo was correct
when it included profits in its calculations for the respondent’s
claim. It was submitted
on behalf of the respondent that the
respondent has made out a proper case for the amount claimed.
THE
LAW
REQUIREMENTS
OF
UNJUST/UNDUE
ENRICHMENT
[24]
To succeed
with a claim based on undue enrichment the plaintiff
must
comply
with
four
general
requirements:
First
the
plaintiff
must
be
enriched, secondly the defendant must be impoverished,
thirdly
the
defendant’s
enrichment
must
be
at
the
plaintiff’s
expense and
finally the defendant’s enrichment must be
unjustified,
which means that it must be without a legal cause.
[2]
[25]
In
Legator
McKenna
Inc
v
Shea
[3]
the
court
found
that
a
party
may
reclaim
performance
made
in
terms
of
an
invalid
contract
if
invalidity
is
due
to
failure
to
comply
with
the
prescribed
formalities.
A
party
performing
in
terms
of
the
contract
which
is
unenforceable
or invalid due to constitutional invalidity, still has a right to
claim for performances rendered
[4]
.
[26]
The
well-established
doctrine
of
our
law
is
that
no
man
may
enrich
himself at the expense or to the detriment of another
[5]
.
[27]
In
Nortje
en ‘n Ander v Pool NO
[6]
,
the majority of the court held
that
there
was
no
general
enrichment
action
in
our
law,
but
that
such an action could develop in future.
The
majority of the court
held
that
there
is
no
general
enrichment
action,
and
that
there
is
no
evidence of the existence of a general enrichment action under
Roman
Dutch law.
CONDICTIO
SINE CAUSA
[28]
A
plaintiff
will
only
succeed
with
the
condictio
sine
causa
(“
condictio
”)
if the general requirements for enrichment are met as
discussed
above (Jacques Du Plessis) 2012: p218: ibid).
In
order
for
the
condictio
to
succeed
a
third
requirement
has
to
be
met
which
is that the enrichment is unjustified.
[7]
Only if the law
determines
that
there
is
no
cause
for
the
retention
of
the
enrichment
by
the
defendant,
that
is
only
if
the
enrichment
is
unjustified,
can
the
plaintiff
succeed
with
an
enrichment
claim
(
Hutchison
et
al Wille’s Principles of South African Law 8 ed
at
634 -
5
).
ONUS
OF PROOF
[29]
In
Kudu
Granite Operations (Pty) Ltd v Caterna Ltd
[8]
the
court
found
the following:
“
[21]
A
presumption
of
enrichment
arises
when
money
is
paid
or
goods
are
delivered.
A
defendant
then
bears
the
onus
to
prove
that
he
has
not
been enriched:
De
Vos
(supra
2nd
ed
at
183),
quoted
with
approval
in
African
Diamond Exporters (Pty) Ltd v
Barclays Bank International Ltd1978 (3) SA 699 (A) at 713G - H…”
The
defendant bears the full onus in an enrichment case.
[9]
PROFIT
[30]
If
a
person
is
enriched
as
a
consequence
of
services
performed
by another,
the measure of enrichment is the value of the service.
The fact
that profits were earned as a consequence of the service
is
causally
irrelevant.
These
profits
are
not
added
to
the
enrichment
claim.
[10]
A
plaintiff
cannot
include
a
profit
when
calculating
his
impoverishment
[11]
.
This
is
obvious
if
the
plaintiff
did not
forgo the opportunity of making the profit through dealings
with a
party
[12]
.
[31]
In
BK
Tooling
(Edms)
Bpk
v
Scope
Precision
Engineering
(Edms)
Bpk
[13]
,
the Appellant Division did not indicate the criterion
for
calculating
the
extent
of
the
defendant’s
enrichment
derived
from
the
contractor’s
defective
performance.
It
can
be
inferred
that the
calculation is to precede according to normal enrichment
principles
and
that
the
benchmark
is
not
the
contract
price
[14]
.
Since
the
contract
price
will
include
a
profit
for
the
contractor,
it should
not play a part in determining the plaintiff’s
impoverishment
or the defendant’s enrichment
[15]
.
[32]
In
Hauman
v Nortje
[16]
,
Lord De Villiers stated as follows:
“
This
compensation he must make, not because of any supposed new contract
with the contractor, as in certain cases of English Law,
but because
of
the
application
of
the
equitable
principle
of
our
law
that
no
one
shall
be unjustly enriched at
the expense of another. The mode of enrichment provide against is not
the attainment of benefits stipulated
for in the contract
, but
the unjust absorption by the one party of the expenditure or of the
fruits of the labour of the other party in a manner not
contemplated
by the parties to the contract”.
APPLICATION
OF THE LAW TO THE FACTS
REQUIREMENTS
OF
UNJUST/UNDUE
ENRICHMENT
[33]
In my view and in light of the submissions made by counsel for the
appellant, it is clear that the appellant’s
contention
herein
was
based on the fact that the contract
between the parties was
unenforceable.
In
addition
the
contention
was
based
on
the
fact
that
the
Court
a
quo
did
not
do
an
exercise
to
determine
the
appellant’s enrichment and the
respondent’s impoverishment.
The
argument
was
that
the
Court
a
quo
enforced
the
said
unenforceable contract.
I disagree with the argument that
because
the
contract was
unenforceable
therefore
the
respondent
was
not
entitled
to
payment.
My
considered
view
is
that
the
Court
a
quo
based
its decision on the principles of unjust enrichment not on an
unenforceable contract. Submissions on behalf of the appellant
were confusing invalidity with unlawfulness. An unlawful contract
could not sustain a claim for enrichment. The action before us could
be used to claim performance on an invalid contract as is
demonstrated by the authorities above. Even though the contract was
invalid, the respondent was still entitled to payment due to
the fact
that it rendered services.
CONDICTIO
SINE CAUSA
[34]
The
respondent’s
case
was
based
on
condictio
sine
causa.
The
requirements of
condictio
sine causa
are dependent on each
other
in
order
to
establish
liability.
The
conduct
between
the
appellant
and the respondent complies with the
requirements of unjust
enrichment.
According to the authorities cited above, the
respondent
has
made
out
a
case
of
unjust
enrichment
and
therefore was entitled to payment. The
appellant was enriched in
that
the
respondent
rendered
services
to
the
appellant
which
the
appellant
benefitted
from
but
failed
to
make
payment
for.
The
appellant was enriched at the
respondent’s expense.
The
enrichment was unjustified in that there
was no agreement that the
respondent
was going to render services for free to the appellant.
The agreement was that the appellant was
expected to pay for the
service
which it
failed to do.
There
is authority that a party
performing
in
terms
of
the
contract
which
is
unenforceable
or
invalid
due
to
constitutional
invalidity,
still
has
a
right
to
claim
for
performance
rendered
(see
Legator
McKenna
Inc
supra
)
.
Where
an
individual
is
unjustly
enriched,
the
law
imposes
an
obligation upon the recipient to make
restitution.
[35]
It
is acknowledged that a procurement contract concluded in
breach
of
the
provisions
of
section
217
of
the
Constitution
is
invalid.
[17]
The
respondent’s
contention
herein
was
based
on
the
principle
of restoration to each party what has been received in an
unenforceable
contract.
In
both
its
amended
particulars
of
claim
and
in the testimony of Mr Ahadji, the respondent pointed out that
after
the
tender
process
was
not
proceeded
with;
it
genuinely
believed
that
the
contract
entered
into
with
the
appellant
was
validly
entered
into.
It
is
undisputed
that
an
oral
contract
previously
entered
into
between
the
respondent
and
certain
officials
of the appellant was, a few years later, reduced to writing
and
signed
by
other
officials
of
the
appellant.
Importantly,
the
respondent’s
evidence that after his refusal to render further
services
he
was
implored
by
the
appellant’s
official
to
continue
with
the
service
due
to
the
fact
that
it
was
an
essential
service
and
that
the
appellant
did
not
have
the
necessary
equipment
to
extinguish
the fire at the landfill was not disputed at all. All of this
must
have
re-enforced
the
respondent’s
belief
that
the
contract
was
validly
entered
into.
These
are
factors
that
must
be
taken
into
account.
[18]
[36]
In
argument,
the
appellant’s
counsel
stated
that
the
respondent
bore
the
onus
of
proving
enrichment
whereas
respondent’s
counsel stated that the appellant’s
bore such an onus. There is a body of authorities which confirm that
condictio
sine
causa
, gives rise
to
a
duty
of
rebuttal
which
rests
upon
the
recipient,
in
casu
the
appellant.
It
was
the
appellant’s
duty
to
prove
that
it
was
not
enriched
by
the
services
that
the
respondent
rendered.
The appellant
failed
to
discharge
such
an
onus.
Since
the
appellant
admittedly produced no evidence
whatsoever to prove that it has
not
been
enriched,
I
am
persuaded
to
rule
in
the
respondent’s
favour.
PROFIT
[37]
The question of profits being included
in the enrichment
calculations
is
clarified
by
the
authorities
quoted
above.
The
measure of enrichment is the value of
the service rendered.
The
fact
that
profits
were
earned
as
a
consequence,
profits
are
not
added
to the enrichment claim.
A
plaintiff cannot include a profit
when
calculating
his
impoverishment.
On
this
particular
aspect,
the
following
unchallenged
evidence
has
to
be
taken
into
account:-
firstly,
that
subsequent
to
the
respondent’s
refusal
to
make his machinery and its operator available to the appellant on
account
of
the
appellant’s
non-payment,
the
appellant’s
official
implored the respondent to carry on with
the service, pointing out
that
such
service
was
regarded
as
essential
service,
and
also
pointing
out
that
due
to
the
fact
that
the
appellant
did
not
have appropriate machinery and
equipment, it was unable to extinguish
a
fire
that
was
raging
at
the
landfill
site. Secondly,
there
were
other clients who were queuing for the
rental of the respondent’s
machinery
and
equipment.
Thirdly,
the
rates
charged
by
the
respondent
were
in
line
with
those
set
out
in
the
CPHA,
which
were
the recommended tariffs in the construction industry. Under
such circumstances, there is no reason why the amount agreed
upon in the contract should not be regarded as reflecting the value
of the service which the respondent rendered.
Therefore
the
Court
a
quo
was
correct
in
ruling
that
the
respondent
has
established its claim in the amount of R
2 760 354, 76.
QUANTUM
[38]
The court has to consider whether, on the evidence, the respondent
was impoverished by failure of the appellant to make payments
that
have enriched the appellant and at the same time question whether the
alleged enrichment was made at the expense of the respondent.
[39]
The amount of R 2 760 354,76 which is said to have constituted the
enrichment of the appellant, accrued to the respondent as
a result or
consequence of having rendered services to the appellant, based on
the agreement which failed. Again, looking at the
overall picture the
appellant was enriched at the expense of the respondent by receiving
the benefits of services rendered by the
respondent in the belief
that there was a valid agreement. That agreement failed, not owing to
the respondent’s breach, but
as a direct result of
non-fulfilment of the appellant obligations.
CONCLUSION
[40]
Whenever a contract is defective in its incidents, followed by total
or partial performance in an honest belief in its validity,
is
repudiated or found to be unenforceable, there immediately arises
a
situation
calling
for
a
relief.
In
any
bilateral
contract
where
one
party
has
admittedly
partially
performed
his
part
and
the
other
party
receives a benefit therefrom, the former can sue the latter by
a
condictio
on
the
ground
of
unjust
enrichment.
The
condictio
is
available only in cases of genuine
dispute or misfortune (see
Mackeurtan
in
his
work
“Sale
of
goods
in
South
Africa”3rd edition
p330
to
333).
In
casu
the
conduct
of
both
the
appellant
and respondent
complied
with
the
requirements
of
unjust
enrichment,
specifically condictio sine causa.
[41]
In light of the preceding I am satisfied that the
respondent
had on a balance
of
probabilities
established
that
he
was
entitled
to
payment,
on
the
evidence
led,
of
the
amount
of
R
2,760,
854.76
against
the
appellant
based
on
unjustified
enrichment.
I
am
also
satisfied that the respondent satisfied
its claim despite the fact that the respondent abandoned the contract
whose legality and
validity
was
a point of dispute.
[42]
Accordingly the following order is made:
42.1
The appeal is dismissed with costs.
_________________
E.K.
TSATSI, AJ
M.B.
Molemela, JP and S.P.B. Hancke, J concurred with the judgment.
On
behalf of appellant:
Adv. MTK Moerane SC
With
him: Adv L Mfazi Instructed by:
N
W Phalatse and Partners BLOEMFONTEIN
On
behalf of respondent: Adv. C. Snyman
Instructed
by: Matsepes Inc. BLOEMFONTEIN
[1]
Department
of
Transport and Others v Tasima (Pty) Limited
(CCT5/16)
[2016] ZACC 39.
[2]
Jacques
Du Plessis, The South African Law of Unjustified Enrichment
(2012)
page 24 at para 2.1. See
LAWSA, Vol
9 at para 76 by Lotz revised by Horak and also
Bowman
De Wet Du Plessis NNO & Others v
Fidelity
Bank Ltd
1997
(2) SA 35
(A) at 43D-F.
[3]
Legator
McKenna Inc v Shea
[2009]
2 All SA 45 (SCA).
[4]
Allpay
Consolidated Investment Holdings (PTY) Ltd and others v Chief
Executive Officer, South African Social
Security
Agency and others
(2014)
(4) SA 179 (CC).
[5]
Human
v
Nortje
1914
AD at 298.
[6]
Nortje
en ‘n Ander v Pool NO
1966
(3) SA 96 (A).
[7]
First
National Bank of Southern Africa ltd v East Coast Design CC
2000
(4) SA (D) 141I-142C.
[8]
Kudu
Granite
Operations (Pty) Ltd v Caterna Ltd
2003 (5) SA 193
(SCA) para 2.
[9]
Mohamed
and
Another v Jassiem
[1995] ZASCA 115
;
1996
(1) SA 673
(A) at 709H.
[10]
BC v
Commissioner of Taxes
1958
(1) SA 172
(SR) 176 quoted in Jacques Du Plessis above page 396.
[11]
Gorfinkel
v Miller
1931
CPD 251
(pointing out that profit would be recoverable if the
parties concluded a
tacit
agreement to this effect) quoted in Jacques Du Plessis above at 42.
[12]
For a comparative perspective see the Dutch decision of
Baartman
v Huijbers
(HR
11April 1986, NJ
1986,622)
and also Jacques Du Plessis above at page 42.
[13]
BK
Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk
1979
1 SA 391 (A).
[14]
Hitchins
v Breslin
1913
TPD 677
at 685. See the reference by Jansen JA at 422.
[15]
De Wet and Van Wyk Kontraktereg en Handelsreg 5ed 202.
[16]
Hauman
v
Nortje
1914
AD at 298 (supra).
[17]
See
Department
of Transport and others v Tasima (Pty) Ltd
(supra)
at para 79.
[18]
Jajbhay
v Cassim
1939
AD 537
at 545 and 550, where the following was stated:
“And
it follows from what I
have said
above, in cases where public policy is not seriously affected by a
grant or refusal of the relief claimed, that a Court
of law
might well decide in favour of doing justice between the individuals
concerned and so prevent unjust enrichment.
…
The
principle underlying the general rule is that the courts will
discourage illegal transactions, but the exceptions show that
when
it is necessary to prevent injustice or to promote public policy, it
will not readily enforce the general rule. “