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South Africa: North Gauteng High Court, Pretoria
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[2014] ZAGPPHC 146
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CES Africa (Pty) Ltd v Burger (49806/2013) [2014] ZAGPPHC 146 (2 April 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
CASE
NO: 49806/2013
DATE:
2/4/2014
In
the matter between:
CES
AFRICA (PTY)
LTD
..............................................................................................
Plaintiff
and
SCHALK
JACOBUS
BURGER
..................................................................................
Defendant
JUDGMENT
BAM
J
1.
On 13 August 2013 the plaintiff instituted action against the
defendant claiming payment for damages in the amount of more
than R2M.
2.
The defendant filed a Notice to Defend and subsequently a Notice of
Exception. The exception is based on the grounds that the
particulars
of claim lack averments sustaining a cause of action.
3.
The plaintiff’s averments can be summarized as follows:
(i)
The defendant was a director of the plaintiff and a director of a
company named Cost Engineering Mozambique Lda ,“
CEM”
;
(ii)
The defendant was responsible to collate, generate and render
invoices to
CEM
on
behalf of the plaintiff, in respect of professional services rendered
by the plaintiff to
CEM
,
for the collection of such invoiced amounts;2
(iii)
The
defendant failed to collate, generate and render the said invoices
for the work rendered by the plaintiff to
CEM
for
the months of February, March and April 2013;
(iv)
CEM
was
paid by its client for the said work done by the plaintiff.
(v)
The defendant has breached his fiduciary duties as a director of
plaintiff as contemplated in the Companies Act, by
(i)
abusing his position as director of plaintiff:
(a)
in order to gain advantage for
CEM
and/or
himself;
(b)
in that the defendant knowingly caused harm to the plaintiff in not
collating, generating and rendering invoices to
CEM
for
the said months;
(c)
not excercising his powers/ and or performing his duties as required
from a person in his position;
(vi)
Consequently the defendant caused the plaintiff to suffer damages.
4.
In the defendant’s heads of argument the grounds of exception
are stated to be twofold:
(a)“
Firstly,
in the absence of an allegation by the plaintiff that the amounts due
in terms of the invoices, cannot be recovered, it
can simply not be
found that the plaintiff had suffered damages.”
(b)”
The
fact
that
the
invoices
were
allegedly
not issued timeously, does not preclude plaintiff from
generating the invoices and delivering same to the third
party for
payment thereof.”
5.
The averments in the particulars of claim pertaining to the
defendant’s conduct and the breach of his fidicuary duties
as
director of the plaintiff, are clearly set out and, in my view,
indeed sustain a cause of action and are therefore not excipiable.
6.
In respect of the damages allegedly suffered by the plaintiff, the
defendant’s contentions that the plaintiff was obliged
to aver
that the funds in question “
cannot
be
recovered”,
is
evenly without substance. The plaintiff, in paragraph 8.3 of the
particulars, clearly stated that
CEM
failed
to pay the amounts in question at
the
instance
of
the
Defendant,
and in paragraph 9, that notwithstanding demand the defendant did not
pay the said amounts to the plaintiff. In my view
the plaintiff was
not obliged to say anything more.
7.
Accordingly, in my opinion, the particulars of claim contain all the
necessary averments to enable the defendant to plead. It
must be kept
in mind that the issue to be considered in this application is not
whether the plaintiff will eventually succeed in
proving its case.
8.
Accordingly I make the following order.
The
exception is dismissed with costs.
A
J BAM
JUDGE
OF THE HIGH COURT
31
March 2014