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[2014] ZAGPPHC 352
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Murray t/a G-Tech v Mpumalanga Economic Growth Agency (16360/09) [2014] ZAGPPHC 352 (13 June 2014)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER:16360/09
DATE:
13/6/2014
In
the matter between
GRANT
MURRAY t/a
G-TECH
.................................................................
PLAINTIFF/
RESPONDENT
and
MPUMALANGA
ECONOMIC GROWTH
…..............................................
DEFENDANT/EXCIPENT
AGENCY
JUDGMENT
TLHAPI
J
[1]
The excipient and the respondent entered into an agreement in terms
of which the respondent rendered certain goods and services
to the
excipient. The excipient neglected to make payment for the services
rendered and installations in the amount of R5 150 331.97
for the period October 2006 up to an including December 2008. In its
plea the excipient pleaded that the agreement entered into
was not
enforceable. The respondent proceeded to amended its particulars of
claim to include a claim based on unjust enrichment
and couched the
claim and circumstances of the purported enrichment as follows:
“
12.1
In the alternative to the above-mentioned and in the event that the
honourable Court finds that the agreement between the parties
does
not constitute an enforceable agreement, for whatever reason, the
Plaintiff specifically pleads that the defendant was unduly
enriched
under these circumstances as a result of the following...
12.1.1
The Plaintiff provided the Defendant with information Technology
Services and installations which included, but was not limited
to the
following:
12.1.1.1 The
provision of access to and the use of Internet access, backup,
disaster recovery and support services on a application
service
provider basis;
12.1.1.2
Maintenance and support solutions comprising of the provision of
access to and the use of Internet access, backup, disaster
recovery
and support services on an application service provider basis;
12.1.1.3 The
hosting and support services received”
The
respondent pleaded that the excipient ‘
has
been enriched’;
that
the respondent ‘
has
been impoverished’ ; that the services and installations were
rendered whilst the
respondent held the bona fide belief that the respondent was to
receive payment ..in terms of the agreement’.
[2]
The exception raised is on the basis that the alternative claim based
on unjust enrichment does not sustain a cause of action.
The
excipient argued that the respondent was confined to raise its claim
under the
conditiones,
recognised in
South African Law, which included the ‘
Conditio
indebiti;
the
‘
Conditio ob
turpem vel iniustam causam;
the
‘
Conditio
causa data causa non secuta’
and,
the “
Conditio
sine causa (specialis).
According
to the excipient there was no transfer of property, which was a
requirement for all claims based on the recognized
conditiones,
rather the
respondent’s claim was based on what it claimed was a delivery
of services to the excipient, that is, the
delivery of the
value of a
factum
.
The
excipient further argued that this was not a case that warranted the
extension of the
conditiones
, as this would be
at ‘odds and frustrate the objects of section 217 of the
Constitution of the Republic of South Africa Act,
1996’ in as
far as it related to principles and procedures governing procurement.
[3]
The respondent has argued that the time was ripe for this area of the
law to be developed and be expanded to include situations
as
presented themselves in this action, and that the claim as pleaded in
the alternative should be accepted as a claim under the
conditio
indebiti.
In
order to achieve this, there was need for a proper ventilation
on the issues, as canvassed in
Fidelity
Supercare Services Group (Pty) Ltd v Johannesburg Metropolitan Police
Department
(Case
7209/2009 NGD delivered 16/01/23). The facts of this matter were not
envisaged under the Roman Dutch Law, it is therefore
not only the
objects of section 217 of the Constitution that should be observed,
holistically the interests of justice would be
served as espoused in
section 173 of the said Constitution if the issues were properly
ventilated.
It
was trite that the court was duty bound to consider first an
exception taken to a pleading. The issues presented in this matter
call for a deviation. In my view it is only when the merits are
determined when a court could be in a position to make a finding
whether it was appropriate in these modern times to expand the
application of the
conditiones,
rather than
close the door to the litigant on exception. In my view while not
dismissing the exception raised, this is a proper
case in the
interests of justice to order the postponement of the hearing of the
exception to be argued together with the merits
of the case.
[4]
In the result the following order is given:
1.
That the exception be
argued at trial.
2.
Costs are reserved.
___________
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON : 26 MARCH 2014
JUDGMENT
RESERVED ON : 26 MARCH 2014
ATTORNEYS
FOR THE PLAINTIFF : MALAN KRUGER INC
ATTORNEYS
FOR THE DEFENDANT : KT MOKOENA ATT