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[2015] ZAKZDHC 25
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R.G.W v L.C (13778/2013) [2015] ZAKZDHC 25 (18 March 2015)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, DURBAN
CASE
NO: 13778/2013
In
the matter between:
R[…]
G[…]
W[…]
........................................................................................................
PLAINTIFF
and
L[…]
C[…]
................................................................................................................
DEFENDANT
JUDGMENT
THATCHER
AJ:
[1]
The plaintiff and the defendant were married to each other in 1991.
Two children were born of the marriage, namely I[…],
a boy,
born on […] 1993, and B[…], a girl, born on […]
1995. The plaintiff and the defendant were divorced
in this
court on 13 June 1996 and an order was made that the plaintiff pay
maintenance to the defendant for the minor children
at the rates of
R425,00 and R300,00 per month for I[…] and B[…]
respectively. In 1997, the magistrates’
court in Pinetown
increased the maintenance to a total of R1 550,00 per month and
the maintenance was again increased in terms
of a consent order on 4
August 2009 so that the plaintiff was obliged to pay maintenance to
the defendant at the rate of R7 200,00
per month per child.
[2]
On 11 December 2013, the plaintiff brought an action in this court in
which he made two claims. In claim one, he alleged
that “from
June 2010 to date” he, in the mistaken belief that the
maintenance payable by him was to increase by the
Weighted Consumer
Price Index on an annual basis, made increased maintenance payments
in accordance with that index. In consequence,
he alleges, he has
paid an amount of R49 571,28 in excess of his obligations in
terms of the maintenance order. He alleges
in paragraph 10 of
his particulars of claim as follows:
“
In
the premises the Defendant has been unjustly enriched, and the
Plaintiff requires reimbursement of the aforesaid amount of
R49 571,28
by the Defendant.”
[3]
In his second claim, the plaintiff alleges, in summary, the
following:
(a)
In December 2012, I[...], having turned 18 on 29 June 2011, completed
his matric, left the defendant’s home and moved
to Port
Elizabeth to attend an aviation school;
(b)
as of 1 January 2012 the plaintiff ceased making payments in terms of
the maintenance court order because that obligation to
pay the
defendant had lapsed by operation of law on the 29 June 2011, and
instead the plaintiff funded I[...]’s board and
lodging and the
costs of those studies or a portion of them, from 1 January 2012;
(c)
taking into consideration the obligation to pay R7 200,00 per
month, for the period 1 January 2012 to date, an amount of
R331 732,33 has been paid by the plaintiff “in excess of
this maintenance obligation”. It can be discerned
from
this that the maintenance obligation in terms of the maintenance
court order for that period is a total of R172 800,00
(the
period 1 January 2012 to the end of 2013, 24 months at R7 200,00
per month) or if the payments increased by the Weighted
Consumer
Price Index it would be more than R172 800,00;
(d)
the defendant has launched an application for payment of arrear
maintenance relating to the period 1 January 2012 to date
(a period
of 24 months);
(e)
if the defendant succeeds in her application for arrear maintenance,
she will have been unjustly enriched in the amount of R331 732,33
and if she is not successful, she will have been unjustly enriched in
the amount of R272 529,50 being 50% of all expenses
incurred by
the plaintiff on behalf of I[...] from 1 January 2012 to date.
[4]
The defendant delivered an exception to the particulars of claim,
raising five causes of complaint. At the hearing, Ms
Konigkramer
, who appears for the defendant/recipient,
indicated, that she did not intend proceeding with the first cause of
complaint. This
was a wise decision as there was patently no merit in
this point.
[5]
The second and third causes of complaint related to the first claim.
As I understood them, they were as follows:-
(a)
the plaintiff had failed to plead all the essential elements of an
enrichment action, namely that the defendant must be enriched,
the
plaintiff must be impoverished, the defendant’s enrichment must
be at the expense of the plaintiff, and that the enrichment
must be
unjustified or
sine causa
;
(b)
maintenance for a child is a payment of expenses for the child and
both parents have an obligation to contribute towards those
expenses.
The plaintiff was required to plead that the payment to the defendant
had enriched her. Not only had he failed
to plead this, but
also given the fact that the increased payments were maintenance for
a dependent child, “the plaintiff
had failed to plead and
allege a completed cause of action, alternatively it is vague and
embarrassing”.
[6]
The fourth and fifth causes of complaint relate to the second claim
of R331 732,33 alternatively R272 529,50.
[7]
The defendant’s fourth cause of complaint is that on the
plaintiff’s own version he has not paid any amount to the
defendant in respect of maintenance for I[...] since 1 January 2012,
but despite this, pleads that the defendant would be unjustifiably
enriched and the plaintiff is entitled to repayment of the amounts
claimed. In addition it is alleged the plaintiff has not
pleaded all the essential elements of an unjustified enrichment
action.
[8]
The defendant’s fifth cause of complaint is that it is not
apparent
ex facie
the particulars of claim how the sums of
R331 732,33 or R272 529,50 are calculated and neither is it
apparent how either
of these sums could be amounts in excess of his
maintenance obligations to the defendant and accordingly the claim is
vague and
embarrassing..
[9]
Counsel for the defendant argued that the exceptions to both claims
ought to be upheld with costs, and that the plaintiff be
ordered to
deliver amended particulars of claim.
[10]
In terms of Rule 18(4), every pleading must contain a clear and
concise statement of the material facts upon which the pleader
relies
for his claim “with sufficient particularity to enable the
opposite party to reply thereto.” The pleading
should be
so phrased that the other party may reasonably and fairly be required
to plead thereto.
Trope v South African Reserve Bank
1992(3) SA 208 (T) at 210G.
A pleading contains sufficient
particularity if it identifies and defines the issues in such a way
that it enables the opposite
party to know what they are.
Nasionale Aartappel Koӧperasie BPK v Price Waterhouse
Coopers Inc.
2001(2) SA 790 (T) at 798F–799J.
Obviously the degree of particularity will depend upon the
circumstances of each
case.
[11]
In
Lockhat & Others v The Minister of the Interior
1960(3)
SA 765 (D) at 777 D, Henochsberg J summarised the approach to
exceptions to declarations as follows:-
“
As
long as a declaration reasonably states the nature, extent and
grounds of the cause of action, the court will not as a rule strike
out paragraphs as vague and embarrassing, provided the information
given is reasonably sufficient and provided it does not appear
to the
Court that the paragraphs cannot be pleaded to by the defendant. “
[12]
Turning to claim one, the plaintiff alleges that he mistakenly paid
more than he was obliged to and accordingly the defendant
has been
unjustly enriched. It is true that there is no precise
allegation that the plaintiff paid the defendant R49 571,21
in
excess of what he was obliged to pay and that he was correspondingly
impoverished and she correspondingly enriched in that amount.
However it is alleged that the plaintiff made payment in terms of the
divorce order which surely must mean that he paid and that
the
payments were made to the defendant. There is sufficient
definition of the issues enabling the defendant to know what
they
are.
[13]
It is also true that one cannot discern exactly how the amount of
R49 571,28 is calculated, but it is clear from paragraphs
8 and
9 of the particulars of claim that that amount is calculated using
the Weighted Consumer Price Index over the relevant period.
It
is open to the defendant in a request for further particulars for the
purposes of preparation for trial to seek particularity
on how the
amount of R49 571,28 is calculated.
[14]
In any event, the claim is not one for damages. If it was,
there would have to be complI[...]ce with Rule 18(10), the
purpose of
which is to ensure that in damages claims the plaintiff sets out the
claim “in such a manner as will enable the
defendant reasonably
to assess the quantum thereof.”
Grindrod (Pty) Ltd v Delport
1997(1) SA 342 (W) at 346G. Here Rule 18(4) only has to be
complied with and in my view it has been.
[15]
Dealing with the second complaint about the first claim, it is true
that both parents have an obligation to contribute towards
the
expenses of the child. However it is open to the defendant in
her plea to plead as much, and in her plea to disclose
the amount of
maintenance she has received from the plaintiff for the child and to
disclose whether the payments alleged by the
plaintiff to have been
made in error were in fact used to maintain the child so that she,
the defendant, has not been unduly enriched.
[16]
In the circumstances, the exception to the first claim must fail.
I turn now to the second claim.
[17]
I have summarised the second claim above. Ms
Konigkramer
contended that the cause of action relied upon in the second claim
did not subsist at the time of the issue of the summons.
I did
not understand this to have been raised as one of the five grounds
for the exception. Be that as it may, I do not think
that it
renders the claim excipiable. I say so because the plaintiff
has pleaded that there is pending an application by
the defendant for
payment of arrear maintenance from the period 1 January 2012 to
date. The plaintiff further pleads that
if the defendant
succeeds in that application she will be unjustly enriched in the
amount of R331 732,33 because that is the
amount in excess of
the maintenance order that the plaintiff has paid not to her, but to
I[...] for I[...]’s maintenance.
In the alternative the
plaintiff pleads that if her application in the maintenance court
fails, he in any event has a claim against
her for one half of the
expenses incurred by the plaintiff on behalf of I[...] from 1 January
2012 to date, namely R272 529,50.
Whether this is a claim
properly described as a claim for unjust enrichment or whether it is
a claim by the plaintiff against the
defendant arising from their
joint responsibility for maintaining I[...] is unclear. However
the pleading identifies the
issues in such a way that the defendant
is in a position to know that they are. Obviously this claim
cannot be adjudicated
before the maintenance court proceedings are
determined. When those proceedings are concluded, presumably
claim two would
be amended. In the meantime, the defendant is
able to discern what the issues are and can plead to them.
[18]
Ms
Konigkramer
further alleged that claim two was vague
because it was not apparent
ex facie
the particulars of claim
how the sums of R331 732,33 and R272 592,50 were arrived at
or calculated. For the reasons
set out above regarding the
inability to discern how the amount of R49 571,28 is calculated,
it is unnecessary for the plaintiff
in his particulars of claim to
set out how the sums of R33 732,33 and R272 592,50 were
arrived at or calculated.
The defendant may request further
particulars for the purposes of preparation for trial as to how
amounts are calculated.
[19]
I am according of the view that there is no merit in the exception to
the second claim.
[20]
Insofar as the question of costs is concerned, I see no reason to
depart from the Rule that costs follow the result.
Accordingly
I make the following order:-
The
defendant’s exception to the plaintiff’s particulars of
claim is dismissed with costs.
__________________
Date
of Hearing : 10 March 2015
Date
of Judgment: 18 March 2015
Counsel
for Plaintiff : Adv. W.N Shapiro
Instructed
by : Tate Nolan & Knight Attorneys
031-5631874
(S MOORE/WAG3/0002/SD2)
Counsel
for Defendant : Adv. M.A Konigkramer
Instructed
by : Benita Ardenbaum Attorney
031-2022490
(Ms KM Botha/nm)