Bonthuys v Joseph and Others (148/2001) [2001] ZANCHC 16 (1 July 2001)

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[2001] ZANCHC 16
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Bonthuys v Joseph and Others (148/2001) [2001] ZANCHC 16 (1 July 2001)

Verslagwaardig:
Ja/Nee
Sirkuleer
aan Regters: Ja/Nee
Sirkuleer
aan Landdroste: Ja/Nee
IN
THE HIGH COURT OF SOUTH AFRICA
(Northern
Cape Division)
CASE
NUMBER: 148/2001
DATE
DELIVERED: 01-06-2001
In
the matter between:
Elgar
Christopher Bonthuys Plaintiff
Sole Trustee
of the Elgar Bonthuys
Family
Trust
and
A.
Joseph Joint First
J.
Lang Defendants/Excipients
D.
J. Sterling
D.J.
Potgieter Second Defendant
Coram: Majiedt J
JUDGMENT
MAJIEDT
J:
The
joint first defendants have raised an exception to the plaintiff’s
Particulars of Claim that it does not disclose a cause
of action on
various grounds and seek a dismissal of the plaintiff’s action.
The plaintiff opposes the matter. I shall for
the sake of brevity
and convenience refer to the parties simply as
“the
excipients”
and
“the
plaintiff”
herein.
Mr.
Roux has foreshadowed in his Heads of Argument on behalf of the
excipients the question whether the Trust is a separate legal
persona
and if so, whether it should be legally represented by Counsel or an
attorney before me (Mr. Bonthuys appeared in person before
me and
had signed the plaintiff’s summons also in his own name indicating
thereon that he appears in person).
There is much to be said
for and against Mr. Roux’s submission. At the hearing, however, he
agreed that he would consent to Mr.
Bonthuys appearing in person,
even for the Trust (assuming for the moment that the Trust is
properly before Court).
It
seemed to me that this was a sensible approach. Even if in law a
Trustee is not authorized to represent a Trust (other than a
Trust
created by statute) in person at a hearing, I would rather err on the
side of caution. In this case Mr. Bonthuys chose, despite
my strong
advices to the contrary, to appear in person in a matter which not
only involves hundreds of thousands of Rands, but also
entails
complex legal issues. Notwithstanding my careful explanation of the
consequences at the very outset of the hearing, he chose
to press
ahead.
Mr.
Bonthuys is, so it would appear from the papers before me, a
trained chartered accountant, although his right to practise
as
such seems dubious for reasons not relevant to this judgment.
The fact of the matter is
that, as a person who is wholly unskilled in the practising of the
law, he has produced a pleading which
purports to be a particulars of
claim as part of a combined summons, which I can only describe as an
unintelligible mass of averments:
extremely
wide – ranging in detail,
severely
limited in relevance to the relief claimed and
light
years removed from even remotely complying with Uniform Rules 18(2),
18(3) and particularly 18(4).
As to the need
for lucidity and clarity of pleadings, see
generally:
Trope
v South African Reserve Bank & another
1992(3) SA 208(T) at 210G-211A;
Nasionale
Aartappel Koöp v Price Waterhouse Coopers Ing.
2001(2) SA 790(T) at 798-799.
The
particulars of claim run into a total of 31 pages – much of it is
made up of a detailed narrative sketching the background,
in fact
section B thereof bears the title
“history
of events”
.
To make matters worse (and with fatal consequences for the
plaintiff’s action, as I shall illustrate in due course), there
are attached to the said particulars of claim as annexures B and C
respectively, a founding affidavit and a replying affidavit
on
behalf of the excipients deposed to in case number 1138/98 (to
which I shall refer in due course).
These
annexures add another 54 pages to the particulars of claim.
4. The excipients have
advanced the following grounds on which they aver that the summons is
excipiable:-
this
Court lacks jurisdiction to hear the matter;
the
plaintiff’s claim has already been adjudicated upon by this Court
(under case no. 1138/98) and the matter is accordingly
res
judicta
;
Claim
A in the particulars of claim lack the necessary averments to
sustain a claim as pleaded;
Claim
B in the particulars of claim, insofar as it relates to perjury as
a basis for a claim
ex
delicto
,
is not sustainable in our law, nor can the averments therein
sustain a claim for damages under the lex Aquiliae. I shall deal
with each of these grounds seriatim hereunder, albeit not in the
same sequence as above.
Before
I do so, I set out succinctly the facts relevant to the matter.
It
is common cause that the Trust had concluded an agreement in
writing with the late P. Smith and D.J. Potgieter (
“the
sellers”
)
to purchase immovable property and certain movables.
Under
case number 1138/98, an urgent application was brought in this
Court, by the sellers
inter
alia
to have the said contract declared void, alternatively to have been
validly cancelled by the sellers. The said relief was sought
on
the basis that the purchaser had failed to fulfill its obligations
regarding payment of the purchase price in terms of the
contract.
An
interim order, including a prohibitory interdict, was issued and at
the extended return day of the
rule
nisi
,
oral evidence was adduced to resolve factual disputes. Rabie AJ
(as he then was) confirmed the interim order and declared the
contract to be void. It needs to be noted that, in the process,
the learned Judge rejected the evidence of Bonthuys and found
for
the sellers on the factual disputes.
Van
der Walt J thereafter set aside as an irregular proceeding the
plaintiff’s (as respondent in that matter) notice of application
for leave to appeal against the judgment and order of Rabie AJ.
The Supreme Court of Appeal subsequently refused plaintiff’s
application for leave to appeal against the judgments of Rabie AJ
and Van der Walt J.
Plaintiff’s
action, inasmuch as one is able to make sense of it, seeks to
attack the conclusion of the contract as well as the
judgment of
Rabie AJ on the basis of what can variously and loosely be
described as perjury/material false representations/fraudulent
non-disclosure/fraud. Plaintiff seeks damages based on contract
and/or delict.
If
my synopsis of the facts relevant to the dispute seems somewhat
disjointed, it is only because of the chaotic state of the
Particulars of Claim.
Jurisdiction
:
I
do not propose setting forth in detail the various submissions
which had been advanced by Mr. Roux in support of his contention
that this Court lacks jurisdiction to hear the matter. Suffice to
state that he has contended that none of the recognized grounds
of
jurisdiction, residence, domicile,
ratio
rei gestae
and
ratio delicti
are present to establish jurisdiction herein.
See,
generally:
Erasmus:
Superior Court Practice
,
A1-27 to A1-28;
Pistorius:
Pollak on Jurisdiction
2
nd
ed. pp 60-65.
I am of the view that this Court is indeed
clothed with the necessary jurisdiction to hear this matter by
virtue of the following:-
The
immovable property which is the subject matter of the action is
situated in the area of jurisdiction of this Court (that is
common
cause). In the final analysis this action seems to me to relate to
the title to the said immovable property – that being
the case
this Court would have jurisdiction
(ratio
rei sitae)
;
See:
Eilon
v Eilon
1965(1) SA 703(A), at 726 H- 727A.
Part
of the
ratio
rei gestae
as basis of a Court’s jurisdiction is the
ratio
contractus
i.e. the conclusion and performance of a contract;
See,
inter
alia
:
Roberts
Construction Co Ltd v Willcox Bros (Pty)Ltd
1962(4)
SA 326(A) at 336D;
Melamed
N.O. v Munnikhuis
1996(4) SA 126(W) at 131 F-H.
The
contract was concluded at Modderrivier, within the area of
jurisdiction of this Court and, based on the
ratio
contractus (supra)
,
this Court does have jurisdiction to hear the matter.
The
plaintiff complains of a delict having been committed within the
area of jurisdiction of this Court (I assume for purposes of
this
discussion that perjury may constitute a delict in our law).
On
the basis of the
ratio
delicti
,
this Court would have the necessary jurisdiction, since the delict
would in my view be committed once the affidavits wherein the
alleged
falsehoods are contained are filed of record with the Registrar of
this Court.
See
generally:
Thomas
v BMW South Africa (Pty) Ltd
1996(2) SA 106(C) at 125G.
Last,
but not least, it would seem to me that the doctrine of
effectiveness would support my conclusion, having regard thereto

that
“while
effectiveness may be the rationale for jurisdiction, it is not
necessarily the criterion for its existence”
per Nienaber JA in
Ewing
Mcdonald & Co. Ltd v M & M Products Co
1991(1)
SA 252(A) at 260B.
7.
Claim
A:
Mr. Roux directed his attack on this claim
on two fronts, viz.:
that
the claim for damages fashioned along the lines of fraudulent
misrepresentation which has induced the plaintiff to contract
and to
suffer damages, is on the facts pleaded, closer in nature to an
enrichment action, and
that
since the Trust has not been cited correctly, no damages could have
been suffered by Bonthuys.
Ordinarily
a Court considering the merits of an exception is confined to the
four corners of the pleading excepted to. This general
rule finds
no application, however, where (as is the case here) the plaintiff
has chosen to attach as annexures to his particulars
of claim, the
affidavits introduced as evidence in another matter. These
documents form part of the combined summons. It is
for this reason
that the excipients have elected to follow the route of an
exception, instead of filing a special plea on, for
example, this
court’s alleged lack of jurisdiction and of the matter being
res
judicata.
See,
generally: -
Viljoen
v Federated Trust Ltd
1971(1)
SA 750(O) at 754F.
7.3 The purpose of
pleadings is to direct the attention of the Court and of all other
parties to the issues of the suit upon which
reliance is to be placed
– they must know and understand what exactly the issues are;
See:
Imprefed
(Pty) Ltd v National Transport Commission
1993(3)
SA 94(A) at 107C.
Care
should be taken by the drafter of a pleading to distinguish between
the
facta
probanda
and
the
facta
probantia;
See:
Mckenzie
v Farmers’ Co-operative Meat Industries Ltd
1922 AD 16
at 23;
Makgae
v Sentraboer (Koöperatief) Bpk
1981(4) SA 239(T) at 245D-E.
This is precisely the
fundamental flaw which reverberates throughout the plaintiff’s
particulars of claim in this matter.
It
also suffers to some extent from the malaise set forth thus in
Buchner
& another v Johannesburg Consolidated Investment Co Ltd
1995(1)
SA 215(T) at 216J:-
“
A
summons which propounds the plaintiff’s own conclusions and
opinions instead of the material facts is defective. Such
a
summons does not set out a cause of action
.”
(own emphasis).
The
facts adduced in the particulars of claim must, of course, be
assumed to be correct;
See:
Marney
v Watson & another
1978(4)
SA 140(C) at
144F.
A Court is not, however,
constrained by this principle to turn a blind eye to facts so adduced
which are manifestly false and so far
removed from reality that there
is no possibility whatsoever that they can be proved at the trial.
See:
Natal
Fresh Produce Growers’ Association & others v Agroserve (Pty)
Ltd & others
1990(4)
SA 749(N) at 754-755.
In
order to succeed with this claim, the plaintiff has to prove that
falsehoods were made to him which had induced him to enter
into a
contract, thereby causing him damages.
The alleged falsehoods
appear from his particulars of claim and the annexures thereto.
Both
Rabie AJ and Van der Walt J have already dealt with these alleged
falsehoods, insofar as these were relied upon in the
plaintiff’s/Trust’s
answering papers in that matter.
The
learned Judges’ reasons for rejecting the plaintiff’s/Trust’s
reliance on the alleged falsehoods are, with respect, clear
and
convincing and I support them.
Furthermore,
and in any event, the crucial question arises – who is the
plaintiff in this matter?
The summons was signed by
Bonthuys in person.
The
plaintiff is described in the heading of the summons as
“Elgar
Christopher Bonthuys sole trustee of: The Elgar Bonthuys Family
Trust”.
In the particulars of
claim the following appears:
“
I
Elgar Christopher Bonthuys (an adult male business man),
am
the plaintiff
,
being the sole Trustee of the Elgar Bonthuys Family Trust (Ref. IT
5215/96), a Trust registered in terms of the Trust Property Control
Act, no. 57 of 1988.
I
am litigating in person
.”
(emphasis
supplied)
A
trustee who sues in respect of Trust assets must do so in his
official, not his private capacity;
See:
Honore
& Cameron: S.A. Law of Trusts
4
th
ed. at 55, 340.
Litigation should be conducted in the
name of the Trustees in their official capacity on behalf of the
Trust.
See:
Honore
& Cameron
,
supra
,
at 56;
Rosner
v Lydia
Swanepoel
Trust
1998(2) SA 123 (W) at 126H-127C.
The
pleading as it stands, is capable of only one interpretation,
namely that Mr. Bonthuys himself is the plaintiff – this much
he
has grudgingly conceded during the hearing of this matter.
Rabie AJ has already
decided in case 1138/98 that the Elgar Bonthuys Family Trust had been
the contracting party – correctly so,
with respect. Again Mr.
Bonthuys has conceded as much. That being the case he could not, as
plaintiff in this matter, have been
induced to contract with the
sellers, since he had never been a party to that contract.
On
this ground, too, claim A cannot sustain an action as pleaded.
If
the intention of Mr. Bonthuys was to base his claim on enrichment,
that has not been pleaded at all. Nowhere in his particulars
of
claim does Bonthuys aver that the
Trust
itself
had incurred expenses and therefore suffered damages as a
consequence of the alleged false misrepresentations.
Claim
A is therefore clearly excipiable in one, more or all of the
respects set forth above.
Claim
B:
To
the extent that one is able to make head or tail of the jumbled
mass of averments thrown together in claim B, it appears to
be
based on some form of perjury/falsehoods. In fact, plaintiff
himself describes claim B in its heading thus:
“
Based on fraud in the form of
perjury, false representation and non-disclosure”.
This description is
repeated at various other places in the particulars of claim.
Plaintiff
avers that false statements had willfully been made in the
affidavits in case 1138/98. This is indeed a form of perjury,
namely the making of false statements in judicial proceedings.
Perjury is a criminal offence and may overlap with fraud in the
form of
crimen
falsi
;
See:
R
v du Toit
1950(2)
SA 469(A) at 472.
8.3 Our
law, does not, however, recognise perjury in this form as basis for a
civil suit, in particular where no
delict
is alleged to have been committed against the Plaintiff.
As Mr. Roux has correctly
pointed out, perjury as a form of tort is also non-existent in
English law.
8.4 If
the intention is to fashion claim B along the lines of a claim
ex
delicto
for damages flowing from fraudulent misrepresentations, what I have
stated in respect of claim A,
supra
,
applies of equal force and effect to claim B.
A
claim under the
actio
legis Aquiliae
can also not be sustained, given this Court’s earlier finding on
the alleged falsehoods.
For
these reasons, claim B is therefore also excipiable.
9.
Res
judicata
I
do not deem it necessary, given my conclusions hereinbefore, to
make a finding on this aspect.
There is certainly much
to be said for Mr. Roux’s submissions in this regard. During the
course of his argument, I pointed out
to Mr. Bonthuys that, given the
various averments contained in his summons, it may be a more
appropriate course of action to seek
rescission of the judgment of
Rabie AJ in case 1138/98 by way of motion proceedings in terms of the
common law.
Much
to my surprise I was informed that he has already launched such an
application.
Insofar
as there may be merit in the excipients’ reliance on
res judicata,
they may of course raise it by way of special plea, should an amended
combined summons see the light of day herein.
In
conclusion – I am satisfied that the plaintiff’s summons and
particulars of claim is bad in law and does not disclose a
cause of
action.
What should be done about
it?
Mr.
Roux seeks dismissal of the action. Although there were some
conflicting views of our Courts on the matter, the Supreme Court
of
Appeal has held that dismissal of a plaintiff’s action by reason of
the fact that the summons does not disclose a cause of action
is too
drastic and not justified.
See:
Group
Five Building Ltd v Government of the RSA
1993(2)
SA 593(A) at 602C-603E.
Compare:
Natal
Fresh Produce Growers’ Association & others v Agroserve (Pty)
Ltd & others
1991(3) SA 795(N) at 800F-801F,
Santam
Insurance Co Ltd v Manqele
1975(1)
SA 607(D) at 609H.
I
therefore propose setting aside the summons and particulars of
claim and granting leave to plaintiff to file an amended summons
and particulars of claim;
See:
Group
Five Building Ltd v Government of the RSA
supra
at 604A-B.
I
consequently make the following order : -
The exception is
upheld and plaintiff’s summons and particulars of claim are set
aside with costs.
The
plaintiff is granted leave to file an amended summons and particulars
of claim within 14 days of this judgment.
______________________
S.A. MAJIEDT
JUDGE
Date
heard: 25-05-2001
Date
delivered: 01-06-2001
For
Plaintiff: Mr. Bonthuys (In person)
Counsel
for Defendants: Mr. Roux