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[2013] ZAGPPHC 519
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Department of Justice and Constitutional Development v Lebese and Others (41013/12) [2013] ZAGPPHC 519 (2 October 2013)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NUMBER: 41013/12
In
the matter between:
DEPARTMENT
OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
…........................................................................
PLAINTIFF
and
MORRIS
WAPSTER
LEBESE
............................................................................
FIRST DEFENDANT
C
E VAN RHEEDE-VAN
OUDTSHOORN
...................................................
SECOND DEFENDANT
ELSABE
SNYMAN
..............................................................................................
THIRD
DEFENDANT
HESTER
SUSSANA
BEZUIDENHOUT
........................................................
FOURTH
DEFENDANT
FELICAI
GERBER
…..........................................................................................
FIFTH
DEFENDANT
ABEDNINGO
RICHARD
VUKEYA
..................................................................
SIXTH
DEFENDANT
THOMAS THEMBI
MASINDI
.....................................................................
SEVENTH
DEFENDANT
JUDGMENT
TLHAPI
J
[1]
In this application the defendants, who were employees of the
plaintiff noted an exception to the plaintiff’s particulars
of
claim, in terms of rule 23 of the Rules of Court.
[2]
The plaintiff issued summons in which it claimed that there was a
breach by the defendants of their employment contracts on
various
grounds in that, they had made ‘fraudulent payments to
fraudulent suppliers for services and /or materials not rendered
or
supplied to the plaintiff’. Of the R379 969.63 damages
allegedly incurred, the plaintiff was able to recover an amount
of
R32 042.91.
[3]
As a result the plaintiff issued summons against the defendants
jointly and severally claiming payment of the remainder
amount
totalling R347 926.72 plus interest at the rate of 15.5% per
annum, calculated from 30 days after the letter of demand,
alternatively from a date after the date of judgement and costs of
suit. The action is defended by all the defendants.
[4]
The exception raised was that the particulars of claim failed to
disclose a cause of action against any or all of the defendants.
While the plaintiff pleaded contractual breach the defendants
contended that no cause of action had been made out in delict or
contractually, in that there was no causal link between the conduct
complained about and the damages suffered and that each defendant
actually or presumably contemplated that damages would probably
result by acting in the manner that they did.
[5]
The defendants relied on certain paragraphs read with paragraphs 12
and 13 of the particulars claim. The former which alleged
that the
conduct of the respective defendants specified in the particulars of
claim, amounted to a breach of the defendants’
contracts of
employment with the plaintiff and, the latter which alleged that the
respective breaches of the contracts of employment
individually or
cumulatively caused financial loss to the plaintiff and that
plaintiff was in terms of the regulations entitled
to recover the
loss from the defendants.
1
st
defendant:
5.1
“
as senior accounting clerk...had a
responsibility in accordance with the plaintiff’s instructions,
directives and/or policy
guidelines to ensure that only suppliers
that meet and comply with all the requirements are captured on the
JYP system...”
5.2
“
captured on the JYP system three
fraudulently established corporations namely: Lekalakala Asset
Management Services CC, Mfethis
Movable Assets CC and Nyatlo Asset
Management CC (‘the fraudulent suppliers)
In
respect of this defendant, it was submitted that the plaintiff failed
to plead knowledge and/ or contemplation on the part of
the
defendant.
2
nd
defendant
:
6.1
“
as administration clerk had a
responsibility to check and confirm particulars of prospective
suppliers captured....and then approve
their registration......”
6.2
“
approved the registration.....the
fraudulent suppliers did not meet and/or comply
with all the plaintiff’s
requirements for such approval and
registration”
It
was submitted that the plaintiff had failed to plead intentional
approval knowing that the corporations were fraudulent or should
reasonably have known that they were fraudulent corporations.
3
rd
defendant
:
7.1
“
as a data capturer had a
responsibility to check and confirm banking details ....and
capture them....if they comply and meet
all the plaintiff’s
requirements to be captured on the BAS system”
7.2
“
captured the fraudulent suppliers on
the BAS system, (they) did not meet and/or comply with all the
plaintiff’s requirements
for a supplier to be captured..”
It
was submitted that the plaintiff had failed to plead that
thedefendant did not verify the banking details of the
prospective
suppliers.
4
th
defendant
:
8.1
“
as data typist had a responsibility
to check and confirm the banking details of the prospective suppliers
and capture them...if
they comply and meet all the plaintiff’s
requirements”
8.2
“
captured and registered the
fraudulent suppliers...”
It
was submitted that the plaintiff failed to plead that it was within
the defendant’s knowledge and/or contemplation that
the three
suppliers were fraudulent corporations.
5
th
defendant
:
9.1
“
as assistant director in the
Accounts Control section had a responsibility to check the banking
details of prospective suppliers.....if
they meet and comply with all
the plaintiff’s requirements for registration
9.2
“
authorised the registration of
fraudulent suppliers
”
It
was submitted that the plaintiff had failed to plead that the
defendant had authorised the registration knowing that the suppliers
were fraudulent.
6
th
defendant
:
10.1
“
as accounting office in the Finance
Section had a responsibility...to be conscious of plaintiff’s
security control; ensure
that computer allocated to him was not used
without his knowledge and/or authorisation; adher and/or strictly
comply with plaintiffs
instructions, directives and/or policy
guidelines pertaining to financial control measures; ensure that he
did not negligently
utilise the computer allocated to him; ensure
that his computer was not used to make unauthorised and fraudulent
payment;”
10.2
“
the computer was used seven times to make
fraudulent and unauthorised payments to the fraudulent suppliers”
It
was submitted that the plaintiff failed to plead that the defendant
knew and allowed his computer to be used for unauthorised
payments to
the fraudulent suppliers.
7
th
defendant
:
11.1
“
as an employee in the Finance
Section had the responsibility to be conscious of plaintiff’s
security control measures; ensure
that the computer allocated to him
was not used to defraud the plaintiff; adher and/or comply strictly
with the plaintiff’s
directives and/or policy guidelines
pertaining to financial control measures; ensure that he did not
negligently utilise the computer
allocated to him;”
11.2
“
the computer was used seven times to
make unauthorised
and fraudulent payments
to the fraudulent supplier;”
It
was submitted that the plaintiff failed to plead that the defendant
knew that his computer was used for unauthorised payments
to
fraudulent suppliers.
Furthermore,
it was submitted in respect of all the defendants that in order to
justify liability for damages
ex contractu
the plaintiff
had failed to plead the criteria rendering the corporations involved
as fraudulent ones.
[6]
In as far as the delictual aspect was concerned, it was submitted for
the defendants that from reference to fraudulent suppliers
throughout
the pleadings, it appeared that the plaintiff’s claim was more
likely based on fraud or negligent misrepresentation.
The plaintiff
had therefore failed to plead that the representations by the
defendants were ‘false; made to another intentionally
or
negligently causing the other to act and that the representation
caused damages.” Furthermore that it was not the case
for the
plaintiff that one or more of the defendants ‘acted
intentionally and as a result caused one or more of the other
defendants to act negligently.’
[7]
Before dealing with the exception regard should be had to the
provisions of Rule 18 (4) “Every pleading shall contain
a clear
and concise statement of material facts upon which the pleader relies
for his claim...with sufficient particularity to
enable the opposite
party to reply thereto”. The general principles in interpreting
pleadings were stated by Heher J in
Jowell
v Bramwell-Jones and Others
1998(1) SA
836 (W) at 902 I-J and 903 A-B:
“
(a)
minor blemishes are irrelevant;
(b)
pleading must be read as a whole; no paragraph can be read
in
isolation;
(c)
a distinction must be drawn between
facta
probanda......and
facta probantia;
(d)
only facts need be pleaded; conclusions of law need not be
pleaded;
(e)
..certain allegations expressly made may carry with them
implied allegations and they must be so read;
[8]
The pleader is required to state its case in a clear and logic manner
so that the cause of action can be made out of the allegations
stated. The plaintiff argued that the material facts (
facta
probanda
) should be pleaded, as opposed to facts used to prove
(
facta probantia
) such material facts, that is, the evidence,
Mckenzie v Farmers Corporative Meat Industries Ltd 1922 AD.
The
defendant must persuade the court that upon every reasonable
interpretation the particulars of claim fail to disclose a cause
of
action,
First National Bank of Southern
Africa Ltd v Perry NO
2001(3) SA
960 (SCA) at 965 D.
[9]
What is clear from the particulars of claim was that the plaintiff
throughout relied on the employment contract entered into
between the
plaintiff and the defendants, which contracts of employment
“incorporated or alternatively are subject
to all the relevant
legislative provisions and regulations applicable to Civil servants
in particular the Treasury Regulations
issued in terms of the Public
Management Act of 1999”.
The terms of
the contract were pleaded and in respect of each defendant, in return
for payment of a salary
the defendants
individually undertook in the performance of their obligations,
functions and duties to “act without negligence;
act with
reasonable skill, care and diligence; not act recklessly; carry out
the reasonable instructions and directives of the
plaintiff; comply
with the rules and regulations of the plaintiff; follow and/or
implement the plaintiffs guidelines and policies;
serve the plaintiff
with utmost good faith; and neither do anything nor refrain from
doing anything, that might prejudice or detract
from the rights,
assets or interests of the plaintiff;”
[10]
While it could be said that the same facts pleaded would seem to also
indicate delictual liability, the plaintiff should be
held to what it
has pleaded and the exception is to be considered on that basis
alone. The facts in
Holtzhausen v Absa Bank Ltd
2008(5)
630 (SCA) dealt with the position where absolution from the instance
was questioned, where the trial court had sufficient
facts from which
to determine whether there was a legal duty on the bank manager to
ensure the correctness of his representation
to the plaintiff. It was
confirmed that a claim ‘for damages in delict for pure economic
loss’ was possible where such
right to claim damages existed
independent of any contract,
Lillicrap, Wassenaar and
Partners
v Pilkington Brothers (SA) (Pty) Ltd
1985(1) SA 475(A), that is,
even where a claim for damages could be brought
ex contractu
.
In
Holtzhausen supra
the plaintiff did not rely on a
contractual breach as constituting negligence for a claim in delict.
[11]
It was argued for the defendant that there was no causal link between
each defendants breach and the damages.
Counsel
for the defendant referred to the
Thoroughbred Breeders
Association of South Africa v Price Waterhouse
2001 (4) SA 551
(SCA).In dealing with causation Nienaber JA advocated the adoption of
a flexible test in the determination of causation.
“
[51]......But
it may be worth noting that this Court’s approach to legal
causation within other disparate fields such as crime,
delict,
insurance and latterly, perhaps, estoppels has undergone considerable
evolution in recent years by development of a new
model for causation
sometimes termed the flexible or supple test......
[52]....With
breach of contract, as in delict and estoppel but unlike insurance
(which entails the interpretation of the terms of
policy-compare
Napier v Collet and Another
1955 (3) SA
140
(A)),
the exercise would involve
measuring the consequences of wrongful conduct by a composite legal
yardstick. Admittedly there is an
important factor present in
contract and absent in the other categories mentioned and that is the
competence of the parties to
regulate, limit or expand by arrangement
amongst themselves the
consequences of any
prospective breach. Such arrangements can and must be accommodated in
any flexible test. A conjectured application
of the flexible test
will not mean that the collected wisdom of past cases is summarily to
be discarded. Both limbs of the current
conventional test can readily
be blended into an integrated test as being relevant factors to be
taken into account. The fact that
both parties had particular
consequences in mind when they concluded their agreement, will still
be conclusive.”
The
other judges sitting with him expressed reservations about the
application of this test in our law.
Again,
the particulars of claim should be read as a whole. As I see it, the
link between the defendants’ actions and the damages
suffered
has been pleaded. Legal causation is a matter to be determined at
trial stage and not by way of exception. The plaintiff
still has an
obligation to discharge its onus. The plaintiff relies on the
contracts concluded with the defendants and the damages
it claims
must flow from the breach of such contract.
[12]
What needs to be determined is whether the plaintiff has made out a
cause of action
ex contractu
against the defendants. The plaintiff has
pleaded the material terms in the contracts and the breach upon which
it relies in respect
of each defendant. At pleading stage it is
not necessary to plead reasons why the defendant is said to have
acted negligently
or recklessly. This can only be determined on an
interpretation of the contract vis-a-vis the conduct complained
about. It is a
matter of evidence. The plaintiff seeks to be
placed in a position it would have been had the breach not occurred.
The plaintiff
pleaded that it had been in a position to recover a
certain amount and what remained was a claim for the balance of the
monies
it could not recover from the fraudulent suppliers. I am
therefore of the view that the exception should fail.
[12]
In the result the following order is given:
1.The
exception is dismissed with costs.
____________
TLHAPI
V.V
(JUDGE
OF THE HIGH COURT)
MATTER
HEARD ON : 02 OCTOBER 2013
JUDGMENT
RESERVED ON : 02 OCTOBER 2013
ATTORNEYS
FOR THE PLAINTIFF : THE STATE ATT.
ATTORNEYS
FOR THE DEFENDANTS: MAFA ATTORNEYS