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[2008] ZAFSHC 120
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St Helena Primary School and Another v MEC: Department of Education Free State Province and Another (A3/07) [2008] ZAFSHC 120; [2009] 1 All SA 513 (O) (16 October 2008)
IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case No. : A3/07
In
the
appeal
between:-
ST
HELENA PRIMARY SCHOOL
Appellants
AND
ANOTHER
and
THE
MEC: DEPARTMENT OF EDUCATION
Respondents
FREE
STATE PROVINCE AND ANOTHER
CORAM:
CILLIé,
J
et
WRIGHT,
J
et
EBRAHIM, J
_____________________________________________________
HEARD
ON:
4
AUGUST 2008
_____________________________________________________
JUDGMENT
BY:
CILLIé,
J
_____________________________________________________
DELIVERED
ON:
16
OCTOBER 2008
_____________________________________________________
[1] This
is an appeal
against
the judgment of H.M. Musi J, as he then was, in the matter reported
as
ST
HELENA PRIMARY SCHOOL AND ANOTHER v MEC DEPARTMENT OF EDUCATION FREE
STATE PROVINCE AND ANOTHER
2007 (4) SA 16
(O). The judgment attracted some comment in legal
publications. See:
Sonnekus
and Schlemmer, “
Brandskade
aan skoolgeboue: Op wie rus die verpligting om te herstel?
”
2007 TSAR 756
;
Sonnekus
and Schlemmer, “
Verrykingsvordering
na herstel van brandskade aan vreemde eiendom en versekerbare belang
”
2007 TSAR 823
;
Van
Niekerk (2006) 9
Juta’s
Insurance Law Bulletin
,
p. 120;
Sonnekus
and Schlemmer,
De
Rebus
,
July 2008 p. 22; Sonnekus:
Unjust
Enrichment in South African Law
,
p. 39.
The
court is also indebted to Helen Scott,
Fellow
and Tutor in Law, St Catharine’s College, Oxford
,
who made available to the court the print of p. 222 and 223 of the
Restitution Law Review to be published later in 2008.
Some,
if not all of the
comments
on the judgment are based on a misconception of the facts before the
trial Judge. It is therefore necessary to burden
this judgment with
more detail than the trial Judge did of the facts of this particular
case.
[2] First
appellant is the St. Helena Primary School, a public school in terms
of both Chapter 3 of the South African Schools Act,
No. 84 of 1996
(“the Schools Act”) and the Free State School Education
Act, 2 of 2000 (“the Free State Act”).
During the
proceedings thusfar the appellants were throughout referred to as
“the school”. I will do likewise in
this judgment. The
school is in terms of both the aforesaid Acts a juristic person.
[3] The second appellant
is the governing body of the school and in terms of both the
aforesaid Acts, the school’s government
rests with the second
appellant.
[4] The
first respondent is a member of the Executive Council: Department of
Education, Free State Province. The Premier of the
Free State
Province is also cited as second respondent in her official capacity
as the executive authority of the Province. It
is clear, however,
that the first respondent has the duty to establish and maintain
schools in terms of both section 12(1) of the
Schools Act and section
10(1) of the Free State Act. The second respondent has no separate
role in these proceedings. Reference
will be made to the respondents
as “the Department” as was done thusfar in the
proceedings.
[5] The Department is the
owner of the immovable property consisting of the land and the
buildings situated at St. Helena Primary
School, Welkom, Free State.
[6] The school has at all
relevant times and specifically during the year 2002 occupied the
school buildings in terms of the Free
State Act.
[7] As
mentioned the Department is obliged to maintain the school buildings
in terms of section 10 of the Free State Act. The school
was at all
relevant times in accordance with section 41(g) of that Act obliged
to administer and control the property of the Department
and the
buildings occupied by it.
[8] A fire broke out at
the school on 14 February 2002 causing damage to the building in
which the library was housed at the time.
[9] The necessary costs
to restore that part of the building to its pre-fire condition was
R122 342,52 which the school paid by
utilising R82 010,22 received as
indemnification in respect of the damage from its insurance, and R40
332,30 from its own funds.
[10] The
school, as plaintiff, instituted action against the Department for
the recovery of this amount. In the school’s
summons it is
alleged that the school was under no legal obligation to repair the
damage to the library building and that the Department
was therefore
unjustly enriched.
[11] In
the Department’s plea, the following is
inter
alia
alleged:
“
5.3.2 Chapter 8 of the
aforesaid Act prescribes that the governance of such a Public School
is vested in its Governing Body and
Section 41(1)(g) obliged the
Governing Body of such a Public School to administer and control the
school’s property, and
buildings and grounds occupied by the
school, including school hostels if applicable.
Section 41(2) allows the Governing
Body to raise funds, including the charging of fees or tariffs,
which accrues to such school.
Section 41(9) of the aforesaid Act
obliges such Governing Body to present an annual budget
contemplated in Section 56 of the
aforesaid Act of the estimated
costs relating to such Governing Body’s functions.
Section 42(2) of
the aforesaid Act, further obliges a Governing Body to apply to
the Head of Education to be allocated any
of,
inter
alia
,
the following functions:
(a) to maintain and improve the
school’s property and buildings and grounds occupied by the
school, including the school hostels,
if applicable. Such function
was allocated and/or taken over by plaintiffs.
5.3.6 In terms of Section 54(1), the
Head of Education must finance Public Schools from funds appropriated
for this purpose by the
Provincial Legislature.
5.3.7 At all
relevant times hereto, funds were raised, by the Governing Body, and
funds were appropriated and allocated by the first
defendant to the
first or second plaintiff to maintain the school buildings,
inter
alia
,
to pay for the necessary short term insurance, for insuring the
aforesaid buildings in an appropriate way.
11.
AD PARAGRAPH 11 THEREOF:
In the premises aforesaid, the
contents hereof are denied and plaintiffs are put to the proof
thereof. First and second plaintiffs
were at all relevant times
obliged to administer, maintain and control the school’s
property and buildings, including the
proper insurance thereof with
money raised or allocated to them and did indeed purchase insurance
with such money raised or allocated
to them for the purpose of
administering maintaining and controlling the school’s property
and buildings.”
[12] When
the matter was called in the Court
a
quo
,
the trial Judge was informed that the parties agreed to make use of
the procedure provided for by Rule of Court 33(1). A stated
case was
duly drawn and presented to the trial Judge. That stated case sets
out the following as the agreed facts on which the
Department’s
alleged liability had to be considered:
“1.1 Both
plaintiffs’ status.
1.2 Neither the first plaintiff, nor
the second plaintiff authorised the present action or instructed
Honey & Partners to institute
action.
1.3 Mutual &
Federal Insurance Company Limited authorised and instructed Honey &
Partners to institute action in accordance
with its contractual
rights
vis-a-vis
plaintiffs and in accordance with the principle of subrogation.
1.4 None of the parties caused or was
in any way responsible for the fire mentioned in plaintiffs’
particulars of claim.
1.5 The Free State Province is the
lawful owner of the immovable property consisting of the land and the
St Helena Primary School
buildings situated at Unicor Avenue, St
Helena, Welkom.
1.6 First plaintiff
occupied the aforesaid school buildings at all relevant times and
particularly during 2002 (and still occupies
the buildings) in
accordance with the provisions of Section 11 read with Sections 14
and 15 of the Free State Schools Education
Act 2, 2 of 2000 (
“the
Act”
).
1.7 The first
defendant provided funds to plaintiffs from time to time to enable
plaintiffs,
inter
alia
to maintain and control the immovable property and buildings as
specified in the bundle of documents to be handed in and more
specifically set out in paragraph 1.8
infra
pertaining to the 2002 school year.
1.8 In accordance with the provisions
of the Act:
1.8.1 plaintiffs
prepared a draft budget, a copy of the 2002 draft not being
available, the 2003 draft stipulating the 2002 figures,
is attached
hereto as annexure
“A”
;
1.8.2 defendants
allocated funds to plaintiffs to contribute to their expenses, the
total amount being
R53
714.74,
i.e.
R40
900.44
in respect of learning support material: textbooks, stationery and
subject material and
R12
814.30
in respect of recurrent costs: municipal services, maintenance cost,
etc. A copy of the letter of the Acting Head of Education
dated
19
September 2001
is attached hereto as annexure
“B”
.
An additional budget allocation was made only in respect of
expenditure pertaining to learning support material: textbooks,
stationery and subject material, as is apparent from the letter of
the Head of Education, dated
20
May 2002
,
annexed hereto as annexure
“C”
;
1.8.3 a final
budget was prepared by plaintiffs for the 2002 financial school year
after receipt of defendants’ allocation
as set out in annexure
“B”
,
which budget was presented to a general meeting of parents held on
11
October 2001
and approved by a majority of parents are voting, where after it was
submitted to the Head of Department as required. A copy of
this
document is annexed hereto as annexure
“D”
.
1.8.4 Plaintiffs
were empowered in terms of the Act to supplement the resources
supplied by defendants and did in fact supplement
resources in order
to improve the quality of education provided by plaintiffs to all
learners attending the 1
st
plaintiff.
1.8.5 Plaintiffs accept that the
payment of insurance premiums can be regarded as a recurrent cost,
but it is recorded that defendants
never instructed or requested
plaintiffs to utilise the allocated funds for the payment of
insurance premiums, although the payment
of insurance premiums was
reflected in the budged approved by parents and presented to
defendants.
1.9 The same practice and procedure
took place for the school years prior to 2002 as well as thereafter.
The relevant documents
can be found in the bundle to be handed in by
the parties.
1.10 Mutual &
Federal Insurance Company Limited was the insurer in terms of a short
term insurance policy taken out by the plaintiffs
to insure,
inter
alia
the immovable property and buildings against risks such as fire.
1.11 The terms and directions of the
Act are, where relevant, applicable to this dispute.
1.12 The premiums paid by plaintiffs
to Mutual & Federal Insurance Company Limited for the short term
insurance were far less
than the insurance cover that plaintiffs
enjoyed and the damage caused by the fire and/or the restoration of
such damage. It is
placed on record by plaintiffs that this fact and
the fact that plaintiffs were insured are relevant for purposes of
the adjudication
of this dispute. Defendants do not agree with this
contention.
1.13 Second plaintiff is or was at all
relevant times in accordance with Section 41 of the Act obliged to
administer and control
the property of first plaintiff and the
buildings occupied by it.
1.14 A fire broke
out on
14
February 2002
which fire caused damage to the school buildings in the amount of
R122
342.52
,
which amount was needed to restore the school buildings to its former
condition.
1.15 Plaintiffs
filed a claim with their insurer in respect of the damages sustained
in the fire which company reimbursed plaintiffs
in accordance with
the provisions of the insurance policy. Average was applied and the
insurer paid plaintiffs
R82
010,22
.
Plaintiffs restored the school buildings to its former condition by
utilising this amount together with a portion of the insurance
money
received in respect of the claim relating to the movables (their
property) in the amount of
R788
021.63
.
1.16 Plaintiffs were in possession of
the school buildings with the powers, functions and obligations as
set out in the Act at all
relevant times hereto.
1.17 Second plaintiff applied to be
allocated with the functions set out in Section 42 of the Act.
Defendants did not respond as
is provided for in sub-sections 42(3)
and (4). However plaintiffs accepted the responsibility to maintain
the school property,
buildings and land occupied by them.
1.18 A bundle of documents will be
handed in to the Honourable Court. The parties agree that the
contents of such documents in
so far as they relate to the dispute
are true and correct.
2.
2.1 It is contended on behalf of
plaintiffs on the above factual allegations that
2.1.1 the Free State Province has been
enriched as a result of the restoration of the school buildings to
its former state;
2.1.2 first plaintiff, alternatively
second plaintiff, alternatively both plaintiffs had been
impoverished;
2.1.3 the Free State Province’s
enrichment occurred at the expense of first plaintiff, alternatively
second plaintiff, alternatively
first and second plaintiffs;
2.1.4 the
enrichment took place
sine
causa
,
alternatively plaintiffs acted
quasi
negotiorium gestio
when they incurred the expenses on behalf of the Free State Province
in order to restore the school buildings to their former state.
2.2 Plaintiffs therefore ask for
judgment as set out in the particulars of claim.
2.3 Defendants deny this contention
and plaintiffs’ claim.
3.
The Court is requested to adjudicate
the following question of law:
3.1 Whether or not plaintiffs are
entitled to judgment against defendants for the amount claimed in the
particulars of claim and
based on the cause of action pleaded
therein.”
[13] Attached
to the stated case are four annexures marked annexures “A”
to “D”. It contains,
inter
alia
,
the
school’s budget and two letters written by the Department
setting out amounts allocated to the school for the year 2002.
Annexure “D” is a document drawn by the school. It sets
out the school’s expense budget. It appears from all
these
documents that provision is made for insurance costs in an amount of
R20 400,00 for the year in question.
[15] The
final budget prepared by the school for the 2002 financial year was
approved by the parents and thereafter submitted to
the Head of the
Department. In terms of this final budget provision was made for
insurance as stated above. Mr. Mullins, who
on appeal appeared for
the school, correctly conceded that it must be accepted that this
budget was approved by the Department.
This was also the case with
the budgets for the financial years preceding the particular budget
and subsequent to the 2002 budget,
which all made provision for
insurance as set out above.
[16] It
is also to be noted that the school applied to be allocated the
functions set out in section 42 of the Free State Act.
Of specific
importance is section 42(6) of that Act which reads as follows:
“
(6) The
responsible Member may, by notice in the
Provincial
Gazette
,
determine that some governing bodies may exercise one or more
functions without making an application contemplated in subsection
(1), if-
(a) he or she is satisfied that the
governing bodies concerned have the capacity to perform such function
effectively; and
(b) there is a reasonable and
equitable basis for doing so.”
The functions referred to
in section 42(1) include the following:
“
(a)
To
maintain and improve the school’s property, and buildings and
grounds occupied by the school, including school hostels,
if
applicable;
...
...
...
...
other functions consistent with this
Act and any applicable law.”
[17] Although
there was no specific response to the request
,
as envisaged in section 42(4) of the Free State Act, it is clear that
these functions referred to as section 21 functions (this
reference
is to the Schools Act), were in fact allocated to the school. This
was done by Provincial Notice No. 9 of 2000. This
Notice lists
schools allocated these functions and specifically includes the
school. Although Mr. Mullins, on behalf of the school,
initially
took the view that this cannot be considered on appeal as it was not
incorporated in the stated case, he subsequently
conceded that the
court has to take notice of this. It must be mentioned that this
upgrading of the school’s functions by
means of this Provincial
Notice was not known to those involved at the time of the trial. It
resulted into this not being brought
to the Court
a
quo
’s
attention. The Court
a
quo
therefore did not consider the impact of this Provincial Notice on
the matter.
[18] Mr.
Mullins’ abovementioned concession is correct. If parties
overlook a question of law arising from the facts agreed
upon in a
stated case, and such question is fundamental to the issues
concerned, the court is not confined to the issues of law
explicitly
set out in the stated case. See Erasmus,
Superior
Court Practice
,
B1-234 and
PADDOCK
MOTORS (PTY) LTD v IGESUND
1976 (3) SA 16
(A) at 24C. The reason for this is obvious. Whatever
parties agree to be part of their stated case, the effect of existing
legislation
on the outcome of the dispute, they cannot exclude
wilfully or by oversight from what the court has to consider.
[19] On
these facts and against this background the trial Judge concluded:
“Turning
to the facts of the instant case, it will be noted that the school
was obliged in terms of the provisions of the
Act to maintain the
buildings and, as stated above, it had a direct interest in the
maintenance and preservation thereof. In line
thereof the school
took out an insurance policy covering
inter
alia
the sort of damage in question..... The department had access to the
school’s budget which it approved and from this it
can be
accepted that the department came to know that the premises were
properly insured.
Implicit
in this must have been a common understanding between the parties
that any resultant damage would be paid out of the proceeds
of the
insurance policy.
”
(
My
underlining.)
[20] On
behalf of the school Mr. Mullins relied to a large extent on
criticism in the publications set out in paragraph [1],
supra
,
of this conclusion of the Court
a
quo
.
[2
1] With
regard to the “at the expense of” requirement reference
was made by Mr. Mullins to the following statement by
Sonnekus,
Unjustified
Enrichment in South African Law
,
p. 70 where the following is said:
“
There is compliance with the
causational function of the test when a direct connection can be
shown to exist between the defendant’s
patrimonial increase and
the plaintiff’s patrimonial decrease.”
[2
2] With
regard to the more important (for purposes of this matter)
requirement that the enrichment must be unjustified Mr. Mullins
referred to De Vos,
Verrykings-aanspreeklikheid
in die Suid-Afrikaanse Reg
,
3
rd
Edition on p. 353 where the following is said:
“Verryking
is ongeregverdig wanneer daar geen afdoende regsgrond vir die
verskuiwing of vir die voortduring van die verskuiwing
van waarde van
die een boedel na die ander een is nie. Mens moet dus in elke geval
waar daar ‘n verryking van een persoon
ten koste van ‘n
ander plaasgevind het, vasstel of daar ‘n regsgrond vir die
verryking aan te toon is.”
[2
3] In
this respect Mr. Mullins referred to the duties of the Department as
set out in the relevant Acts and submitted that the statutory
scheme
makes plain the duty of the Department to take reasonable steps to
ensure that learners are provided with public schools
and thus with
the buildings, including libraries, necessary for such public
schools, and that this duty includes the concomitant
duty to repair
fire damage to those buildings, i.e. reinstate the buildings so that
education can continue.
[2
4] With
regard to the Court
a
quo
’s
finding that the school were themselves obliged to repair the fire
damage, Mr. Mullins argued that a distinction must be
drawn between a
school’s power to carry out ordinary maintenance and a
purported obligation to carry out extensive repairs
to damaged
property.
[2
5] Mr.
Claasen, on behalf of the Department, referred to the generally
accepted view that both enrichment and subrogation are considered
to
be based on equity. He relied on the following passage in
TRAHAIR
v WEBB AND COMPANY
1924 WLD 227
at 235:
“Where
the plaintiff basis his claim for relief on an equitable doctrine the
court must be careful that, in a desire to do
justice to the
plaintiff, an injustice is not done to the defendant.”
[
26] Mr.
Claasen further argued that the Department had, by notice in the
Provincial Gazette, determined that the school may exercise
the
functions set out in section 21(1) of the Schools Act, namely to
maintain and improve schools, property and buildings. The
Department
provided funds for this purpose and a budget was prepared for each
year and approved by the Department. The payment
of insurance
premiums as a current cost was therefore budgeted by the school and
funded and consented to by the Department. This,
he says, is
confirmed by the following extract of the letter by the Head of
Education of the Department to the school attached
to the stated case
which reads as follows:
“Schools
that were allocated section 21 functions will receive their
additional allocation over the remaining number of payments
still
owed to the school for the current academic year. These payments are
still subject to the following:
(a) Submission of a quarterly
statement of actual income and expenditure for the previous quarter.
(b) Submission of a certificate of
compliance at the beginning of each quarter as required by the Public
Finance Management Act.
(c) Submission of an audited
financial statement within six months after the end of each financial
year for the previous financial
year.”
[
27] Mr.
Claasen concluded that there was an obligation on the school to
maintain the said buildings. That was brought about, so
the argument
went, by
(a) budgeting
for insurance premiums to cover incidents of this nature; and
(b) to
apply for and receive the approval of the Department for payment of
the insurance premiums from funds received from the
Department or
from funds which they are allowed to raise by approval of the said
Department. The school, therefore, had a duty
or responsibility to
maintain and therefore the
sine
causa
condition of enrichment is not satisfied.
[28] Mr.
Mullins replied that section 21 of the Schools Act provided only
powers and not obligations. He submitted that “maintenance”
as used in section 21 of the Schools Act and section 42 of the Free
State Act is to be understood as minor maintenance “such
as
fuel for the lawnmower”. Relying on
COMMERCIAL
UNION ASSURANCE CO OF SOUTH AFRICA LTD v GOLDEN ERA PRINTERS AND
STATIONERS (BOPHUTHATSWANA) (PTY) LTD
1998 (2) SA 718
(B) on 724C he submitted that restoring damage caused
by fire ought not to be regarded as maintenance.
[29] It
is probably more correct I think to say that a partnership between
the State and those taking responsibility for the government
of the
school was envisaged in the relevant legislation. This is confirmed
by Van Heerden JA in the following passage in the majority
judgment
of the as yet unreported case of
BASTIAN
FINANCIAL SERVICES (PTY) LTD v GENERAL HENDRIK SCHOEMAN PRIMARY
SCHOOL
Case No. 207/07 (SCA):
“[23] As
pointed out by counsel for BFS, the Act envisages the creation of a
‘partnership’ between the State,
on the one hand, and the
‘learners, parents and educators’ of a public school, on
the other, all the ‘partners’
taking responsibility for
the organisation, governance and funding of the school. The scheme
of the Act is such that the “learners,
parents and educators’
of a public school are represented by its governing body, the elected
membership of which includes
representatives of all such categories.
In giving effect to the idea of a ‘partnership’, the Act
confers on public
schools, through their governing bodies, a
considerable degree of autonomy in the governance of the school’s
affairs.”
[
30] It
is necessary to understand that this matter does not concern
maintenance of school buildings in general by provincial education
departments. It concerns the repair of damages caused by an isolated
incident to that part of the school buildings of the St.
Helena
Primary School that houses the library. The question is not if and
to what extent provincial education departments in general
can saddle
schools with the responsibility to maintain the school buildings.
The question in this appeal is whether on the facts
of this
particular case this school should be allowed a claim based on unjust
enrichment against this Department. I resist to
be tempted to
elucidate on issues that may very well have far reaching effects on
the administration of school education services
in general. I do so
because I am mindful of what Lord Simon of Glaisdale (quoted with
approval by Brand J, as he then was, in
VAN
BILJON AND OTHERS v MINISTER OF CORRECTIONAL SERVICES AND OTHERS
1997 (4) SA 441
(C) on 450G) said in
MILIANGOS
v GEORGE FRANK (TEXTILES) LTD
[1976] AC 443
at 481,
1975 (3) ALL ER 801
(HL) at 824:
“'(T)he
training and qualification of a Judge is to elucidate the problem
immediately before him, so that its features stand
out in
stereoscopic clarity. But the beam of light which so illuminates the
immediate scene seems to throw surrounding areas into
greater
obscurity; the whole landscape is distorted to the view. A penumbra
can be apprehended, but not much beyond; so that when
the searchlight
shifts a quite unexpected scene may be disclosed. The very
qualifications for the judicial process thus impose
limitations on
its use. This is why judicial advance should be gradual. ''I am not
trained to see the distant scene: one step is
enough for me'' should
be the motto on the wall opposite the Judge's desk. It is, I concede,
a less spectacular method of progression
than somersaults and
cartwheels; but it is the one best suited to the capacity and
resources of a Judge. We are likely to perform
better the duties
society imposes on us if we recognise our limitations. Within the
proper limits there is more than enough to
be done which is of value
to society.'”
[31]
To
decide if any enrichment took place, or at least if such an
enrichment was not justifiable, one must consider all the facts with
regard to this particular incident. Now what are the facts
applicable to this specific incident? A short synopsis of what has
been mentioned in this regard thus far in this judgment is as
follows:
On
the strength of the budget which the school presented to the
Department and which included the costs of insurance, the Department
provided an amount to the school to cover those expenses. That
amount then became part of the pool of the school’s funds.
Whether the insurance premium was paid out of the amount provided by
the Department or the funds raised by the school itself,
becomes
indeterminable and in any event irrelevant. The clear understanding
between the Department and the school is obvious:
The school will
repair out of the proceeds of the insurance policy damages such as
occurred in the present case.
[32] The
question is not, as suggested by Mr. Mullins, whether the Department
could have insisted that the school take out insurance.
The question
is whether in these particular circumstances the school could use the
insurance money received for any other purpose
than to repair the
damages. The matter can be viewed from another angle: Would the
school be entitled in these circumstances
to retain the proceeds of
the policy, utilise it for whatever other purpose the school thinks
fit and then expect the Department
to repair the damages? The answer
must be in the negative. Such a claim by the school would be
answerable on the basis that the
school claims that which it
undertook to bear itself.
[33] I
do not understand the Schools Act or the Free State Act to preclude
an arrangement between the Department and the school
to the effect
that the school will take out insurance, pay the premium for that out
of the school funds (to which the Department
contributed) and that in
the event of the risk realising the proceeds of the policy is to be
used to repair that damage. To hold
under such circumstances that
the Department is liable to the school on the basis of unjust
enrichment would fly in the face of
all logic. Although it may,
strictly speaking, be correct to say that the Department’s
property was repaired with school
funds and that the Department
gained thereby, there can under these circumstances be no question of
unjust enrichment, simply because
the enrichment was not
sine
causa
.
[34] The
comments of Sonnekus and Schlemmer in the article in
2007 TSAR 823
on
832 which reads as follows can therefore not apply:
“Die
geldigheid van die argument ontgaan ons. Die antwoord op die vraag
of die staat verplig is om sy geboue vir die onderwys
dienstig in
stand te hou, kan nooit afhanklik wees van die feit dat ‘n
derde onverskuldig skadeversekering uitgeneem het
nie – daar
gelaat dat dit onduidelik is waaruit die hof die afleiding van enige
gemeenskaplike wilsooreenstemming tussen
die partye in dié
verband maak. Die uitspraak laat nie blyk dat sodanige getuienis
gelei is nie.”
The
present
case
is more akin to the situation which the learned authors deal with on
p. 827 of the article and which reads as follows:
“Indien
die owerheid reeds vooruit vir al sy moontlike onderhoudsverpligtinge
met betrekking tot ‘n bepaalde artikel
21 skool in die volgende
jaar begroot en die tersake bedrag as deel van die skool se normale
toegekende fondse aan die skool sou
oorgedra het, sou daar ruimte
wees om te sê dat die owerheid nie met enige bespaarde uitgawes
verryk kan wees indien die
skool later wel herstelkoste sou aangaan
en uit daardie toekenning daarvoor betaal nie. Juis vir die doel is
dan immers vooruit
‘n bedrag aan die skool oorgedra.”
In
principle it is irrelevant whether the amount so advanced to the
school is an estimate of the possible c
osts
to repair damages of this nature that might occur in future or on the
other hand to obtain insurance cover against such an
occurrence.
[3
5] The
case was brought by means of subrogation and the possibility of the
school claiming for the shortfall not paid out by the
insurance
company was not argued or set out in the stated case. It is
therefore not necessary to deal with that.
[36] The
question whether a claim for unjust enrichment is available to a
subrogator was cursorily debated in argument. It was
also dealt with
by the Court
a
quo
in its judgment. The conclusion which I reached as set out above
makes it unnecessary to deal with that.
[37] Mr.
Mullins, on behalf of the school, conceded that the employment of two
counsel by the Department was justified in the circumstances
of this
case.
The appeal is therefore
dismissed with costs, such costs to include the costs of two counsel.
____________
C.B. CILLIé, J
I agree.
_____________
G.F. WRIGHT, J
I agree.
_____________
S. EBRAHIM, J
On
behalf of appellants : Adv.
J.F.
Mullins, SC
Instructed
by:
Honey
Attorneys
BLOEMFONTEIN
On
behalf of respondents: Adv. J.Y. Claasen
With
him:
Adv.
S.E. Motloung
Instructed
by:
State
Attorney
BLOEMFONTEIN
/sp