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[2015] ZAGPPHC 323
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Blackberry Limited and Another v Silver Meadow Trading 257 (Pty) Ltd t/a Phat Concepts and Others (50304/14) [2015] ZAGPPHC 323 (11 May 2015)
REPUBLIC
OF SOUTH AFRICA
IN
THE GAUTENG DIVISION OF THE HIGH COURT, PRETORIA
CASE
NO: 50304/14
DATE
HEARD: 7 May2015
DATE:
11 MAY 2015
In
the matter between:
BLACKBERRY
LIMITED
..................................................................................................
First
Plaintiff
BLACKBERRY
MOBILE SOUTH AFRICA (PTY)
LTD
...........................................
Second
Plaintiff
and
SILVER
MEADOW TRADING 257 (PTY) LTD
t/a
PHAT
CONCEPTS
......................................................................................................
First
Defendant
CHRISTOPHER
SHAUN DE
BOD
............................................................................
Second
Defendant
RICO
WESSELS
.............................................................................................................
Third
Defendant
JUDGMENT
J
W LOUW, J
[1]
This is an exception by the defendants against claim A of the
plaintiffs’ declaration as being vague and embarrassing.
The relevant allegations in the declaration are the following:
”
7.
The first defendant performed certain
marketing activities
for
and on behalf of the plaintiffs since 2009.
8.
In 2009
Tot
par. 13
[2]
The defendants’ complaint is that it was not clear what the
legal basis was of the plaintiffs’ claim, i.e. whether
the
claim was based on contract or delict. In this regard, Adv.
Arnoldi SC, who appeared with Adv. Uys for defendants, submitted
that
it was not clear whether the “
assistance of certain
employees of the plaintiff”
referred to in par. 8
occurred with or without the plaintiffs’ authority. If
the assistance was with the plaintiffs’
authority, the claim
would be a contractual one. If it was without the plaintiffs’
authority, the claim would be delictual.
It was pointed out in
this regard that the allegation in para 9 that the fund was
“
off-balance sheet in the sense that, to the knowledge of
the defendants, it was not reflected in plaintiffs’ books of
account,
but only in the first defendant’s books of account”
seemed to indicate that no authority was given by the plaintiffs,
i.e. that the first defendant created and irregular fund with the
assistance of the plaintiffs’ employees. On the other
hand, the allegations in par. 12 of the particulars of claim
suggested that there was authority and that a contract was therefore
concluded between the plaintiffs and the first defendant which
contained the terms pleaded in this paragraph.
[3]
I agree with these submissions. It was, however, submitted by
Adv Van Eeden SC, who appeared for the plaintiffs, that
the
plaintiffs’ claim was neither contractual nor delictual, but
that it was a
quasi-vindicatory
claim. It has been
recognised by our courts that where a particular fund has been
earmarked as belonging to someone, it can
be recovered with a
quasi
rei vindicatio
. It was submitted by Mr. Van Eeden that the
necessary allegations to sustain a
quasi-vindicatory
claim
have been made in the particulars of claim,
viz.
that the
plaintiffs were the beneficial owners of the fund as it comprised of
money that had to be repaid to the plaintiffs, that
the defendants
controlled the fund, that the plaintiffs demanded repayment and that
the defendants refused to pay same to the plaintiffs.
[4]
If those were the allegations that had to be made, it is difficult to
understand why, in particular, the allegations in paras.
8, 9, 10 and
12.2 to 12.4 needed to be made. It was submitted by Mr. Van
Eeden that those allegations simply provided background
relating to
how the plaintiffs obtained
quasi-
ownership of the fund and
how the defendants came into possession or control of the money.
That may be correct as far as paras.
8 to 10 are concerned, but it is
certainly not correct in respect of paras. 12.2 to 12.4. Those
paragraphs have nothing to
do with a
quasi-
vindicatory claim
and can only be indicative of a contractual claim.
The
vagueness and ambiguity therefore remain.
[5]
I conclude, therefore, that the exception should be upheld and
accordingly make the following order:
(a)The
defendants’ exception is upheld.
(b)The
plaintiffs are afforded 10 days from date of service of this order to
amend their particulars of claim, failing which they
will
ipso
facto
be barred from doing so.
(c)
The plaintiffs are ordered, jointly and severally, to pay the
defendants’ costs of the exception, including the costs
of two
counsel.
Counsel
for defendants: Adv. AF Arnoldi SC; Adv. PL Uys
Instructed
by: Hills Incorporated, Pretoria
Counsel
for plaintiffs; Adv. H Van Eeden SC
Instructed
by: Hogan Lovells South Africa, Johannesburg