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[2016] ZANCHC 70
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Strohmenger v Victor; In re: Victor v Strohmenger and Another (2020/2015) [2016] ZANCHC 70 (25 November 2016)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH AFRICA
(NORTHERN
CAPE DIVISION, KIMBERLEY)
Case
No: 2020/2015
In
the matter between:
SUSARA
MAGRIETHA
STROHMENGER
Excipient
and
SCHALK
WILLEM
VICTOR
Respondent
In
Re:
SCHALK
WILLEM
VICTOR
Plaintiff
and
SUSARA
MAGRIETHA STROHMENGER
1
st
Defendant
THE
REGISTRAR OF
DEEDS
2
nd
Defendant
Coram:
Lever AJ
JUDGMENT
Lever
AJ
1.
The
first defendant has excepted to the plaintiff’s Particulars of
Claim on the basis that it does not disclose a cause of
action. The
matter was argued before me on the 5 August 2016 as an opposed
motion. At the hearing, the plaintiff was given leave
to file further
written submissions on certain points. The plaintiff was given until
the 12 August 2016 to file such further written
submissions. The
first defendant was given until the 19 August 2016 to file written
submissions in response to those of the plaintiff,
if she so wished.
2.
The
plaintiff filed his written submissions on the 11 August 2016. The
first defendant did not avail herself of the opportunity
to respond
to the plaintiffs further written submissions.
3.
The
plaintiff’s claim is based on an oral contract, in terms of
which the plaintiff would buy three properties in the town
of
Postmasburg to the combined value of R1 600 000.00 (one million six
hundred thousand Rand). The plaintiff would cause these
properties to
be transferred into the name of the first defendant. Simultaneously
with the transfer of the third property into
the name of the first
defendant, or shortly thereafter, first defendant would transfer a
property belonging to her, identified
as [...] V. S., Postmasburg,
into the name of the plaintiff.
4.
In
partial fulfilment of the said agreement, the plaintiff acquired two
properties and caused them to be transferred into the name
of the
first defendant. Before plaintiff could acquire the third and final
property and cause it to be transferred into the name
of the first
defendant, she caused a letter to be written by her attorney
repudiating the agreement.
5.
Plaintiff
pleads that he accepted such repudiation and in the alternative if it
is found that he did not accept such repudiation
prior to the issuing
of the summons, pleads that he accepts such repudiation in his
Particulars of Claim.
6.
Plaintiff
then pleads that first defendant then sold one of the aforesaid
properties to an innocent third party. Plaintiff appreciates
that he
cannot claim transfer of this property into his name. Plaintiff
claims that he is entitled to be put into the position
he would have
been in, but for the first defendant’s repudiation. In respect
of this property, plaintiff claims the amount
he paid for the
property together with the costs associated with transferring it into
the name of the first defendant.
7.
In
respect of the second property transferred into the name of the first
defendant, plaintiff claims transfer of this property into
his name,
alternatively payment of its current value plus
morae
interest on such amount from the date of service of the summons on
the first defendant to date of payment. This property is identified
as [...] M. S., Postmasburg.
8.
First
defendant in her exception argues that the plaintiff has premised his
claim on a verbal agreement for the sale of immovable
property. That
plaintiff contends that such agreement is “unlawful and
illegal” in terms of s 2(1) of the Alienation
of Land Act.
[1]
That plaintiff seeks restitution of his part performance.
9.
The
exception goes on to contend that the abstract theory of transfer
applies to immovable property. That in terms of the abstract
theory
the validity of the transfer of ownership of immovable property is
not dependent upon the validity of the underlying transaction.
10.
Further,
the exception contends that the passing of ownership of immovable
property takes place when there has been delivery effected
by
registration of transfer coupled with an intention on the part of the
transferor to transfer ownership and, the intention of
the transferee
to become the owner.
11.
The
exception goes on to contend that a valid (or lawful) underlying
agreement is not required and that the transfer remains valid.
Accordingly, first defendant submits in the exception that
plaintiff’s Particulars of Claim lack the necessary averments
to sustain a cause of action against her.
12.
Curiously,
the first defendant in her exception contends in the alternative that
plaintiff’s cause of action is incomplete
in that he fails to
tender restitution of what he received from the first defendant. I
say curiously, because it is clear from
plaintiff’s Particulars
of Claim that he received nothing from the first defendant. First
defendant has not pleaded or put
her case before the court yet. Quite
correctly, Mr Snellenburg SC who appeared on behalf of the first
defendant did not pursue
this alternative exception.
13.
The
final aspect of the exception deals with the plaintiff’s
alternative claim for the value of the property identified as
[...]
M. S., Postmasburg. Here first defendant contends that the
plaintiff’s Particulars of Claim do not comply with the
rules
of court and does not substantiate the alternative claim.
14.
An
exception must be decided on the basis that the facts pleaded have
been established.
[2]
The nature
of the onus which the excipient bears was set out by Nicholas AJA, as
he then was, in the matter of LEWIS v ONEANATE
(Pty) Ltd AND
ANOTHER
[3]
, where he stated
that:
“…
Since
these are proceedings on exception, it must be borne in mind …that
the excipient (must) persuade the Court that upon
every
interpretation which the particulars of claim (including the
annexures), can reasonably bear, no cause of action is disclosed.”
15.
It
follows from what is set out above that the document or documents
that encompass the relevant claim should be read as a whole.
That
generally, it would be improper to isolate a passage or a few
passages and analyse them without reference to the rest of the
document or documents that make up such claim.
16.
What
is to be alleged in respect of a particular claim is essentially a
matter of substantive law. One should also not take an overly
technical approach in assessing whether a cause of action is
disclosed.
[4]
17.
Turning
now to assess the exception in this particular case. The plaintiff,
somewhat unfortunately refers to his contract as an
‘illegal’
contract. The said contract runs foul of a statutory prescription
relating to the sale of immovable property.
It may have been more
appropriate to refer to it as an ‘invalid’ contract. From
the pleadings it is clear that plaintiff
is aware that by virtue of
the invalid contract that he cannot claim specific performance from
the first defendant, hence his claim
for restitution.
18.
The
exception was based on the judgment of the Supreme Court of Appeal
(SCA) in the matter of Legator McKenna Inc and Another v
Shea and
Others
[5]
. Mr Grobler, who
appeared on behalf of the plaintiff submitted that the facts of the
present case are distinguishable from the
facts of Legator’s
case. In that on the facts of Legator’s case both the
transferee and transferor had fulfilled their
respective obligations
under their agreement. In the present case the plaintiff had
partially performed and it is clear from the
content and context of
the particulars of claim that first defendant had not performed at
all. At this point one must remember
that for the purposes of
adjudicating the exception the facts set out by the plaintiff must be
accepted as being established.
19.
Mr
Snellenburg did not pursue the exception based on the Legator case.
The first defendant’s exception morphed into a contention
that
the plaintiff’s claim should not be couched in contract but
should have been based either on the
condictio
ob turpem vel iniustum causam
or the
condictio
indebiti.
Since the first defendant has not amended its Notice of Exception nor
forewarned of such change of approach in its heads of argument,
I do
not think it is fair to the plaintiff to allow the first defendant to
fundamentally change the nature of its exception in
such
circumstances.
20.
However,
based on the view I take of the first defendant’s exceptions
and in the interests of finalising this matter I will
consider these
new grounds of exception.
21.
Fundamental
to both the aforementioned
condictiones,
is that the plaintiff must show that the first defendant has been
enriched at his expense. It is clearly and necessarily implied
in the
Particulars of Claim that first defendant has not performed at all.
At the very least this is a viable interpretation of
the plaintiff’s
Particulars of claim as they stand. First defendant, through her
attorney repudiated the agreement before
she was obligated to perform
and deliver her end of the bargain. This is clear from the
plaintiff’s Particulars of Claim.
In these circumstances, the
plaintiff does not have to specifically plead that first defendant
has not performed her side of the
bargain at all.
22.
The
fact that plaintiff has partially performed and first defendant has
not performed at all, is sufficient to show that first defendant
has
been enriched and plaintiff has been impoverished to the extent of
his partial performance.
23.
Plaintiff’s
Particulars of Claim are set out in narrative form. His Particulars
of Claim tell a story. Plaintiff is not required
to give his claim a
label. He is merely required to plead sufficient facts that would
entitle him to the relief which he claims.
In my view, plaintiff has
pleaded a sufficient basis for an enrichment claim.
24.
Turning
now to the first defendant’s second exception, dealing with the
plaintiff’s alternative claim for the present
value of [...] M.
S. as opposed to transfer of the said property into plaintiff’s
name. The basis of this exception is that
paragraph 12 of the
Particulars of Claim does not substantiate the alternative claim.
Further, that the ‘valuation’
annexed to the Particulars
of Claim does not indicate the basis of the alternative claim. Also,
that “…the allegation
fails to comply with the rules of
court and does not substantiate the alternative claim at all.”
25.
On
this aspect, Mr Grobler submitted on behalf of the plaintiff, that in
respect of the alternative claim, paragraph 12 of the Particulars
of
Claim must be read in conjunction with paragraphs 11.1, 3.3 and the
prayers set out in the said Particulars of Claim. Mr Grobler
submits
that if the relevant passages are read in this way, a sufficient
basis is set out for the plaintiff’s alternative
claim in
respect of [...] M. S., in plaintiff’s Particulars of Claim. In
my view Mr Grobler is correct.
26.
For
the reasons set out above, the exceptions raised by the first
defendant stand to be dismissed.
27.
Turning
to the issue of costs, Mr Snellenburg did not bring any factors to my
attention as to why costs should not follow the event
if I dismissed
the relevant exceptions. I can also find no reasons why costs should
not follow the event in accordance with the
ordinary rule.
Accordingly, costs will be awarded to the plaintiff.
In
the circumstances, the following order is made:
1)
The
exceptions are dismissed.
2)
The
first defendant is to pay the plaintiff’s costs herein on the
ordinary party-and-party scale.
___________
Lawrence
Lever
Acting
Judge
Northern
Cape High Court, Kimberley
On
behalf of Applicant/ Excipient:
Adv S Grobler
Engelsman
Magabane Inc
On
behalf of Respondents:
Adv N Snellenburg SC
Haarhoffs
Inc
Date
of hearing:
05 August 2016
Date
of Judgment:
25 November 2016
[1]
Act 68 of 1981.
[2]
AB Ventures Ltd v Siemans Ltd
2011 (4) SA 614
(SCA) at para 2.
[3]
[1992] ZASCA 174
;
1992 (4) SA 811
(A) at 817 F-G.
[4]
South African National Parks v Ras
2002 (2) SA
537
(C) at 541 I-J.
[5]
[2009] All SA 45
(SCA).