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2024
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[2024] ZAFSHC 252
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Member of the Executive Council of the Department of Human Settlements, Free State Province v NTSU Building Materials (Pty) Ltd (A144/2023) [2024] ZAFSHC 252 (22 August 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Reportable
/ Not reportable
Case
no:
A144/2023
In
the matter between
THE
MEMBER OF THE EXECUTIVE COUNCIL
Appellant
OF
THE DEPARTMENT OF HUMAN SETTLEMENTS,
FREE
STATE PROVINCE
And
NTSU
BUILDING MATERIALS (PTY) LTD
Respondent
In
re
:
MEC:
DEPARTMENT OF HUMAN SETTLEMENTS, FS
Plaintiff
And
NTSU
BUILDING MATERIALS (PTY) LTD
First
Defendant
CITRA
SHINE TRADING 606 CC
Second
Defendant
SABELE
BUILDING CONSTRUCTION CC
Third
Defendant
MOHLAHLELI
CONSTRUCTION CC
Fourth
Defendant
CLASSIC
ORIENTAL TRADING 500 CC
Fifth
Defendant
TSHENOLELO
BUSINESS ENTERPRISE CC
Sixth
Defendant
NTLOLANE
CONSTRUCTION CC
Seventh
Defendant
DILEMOPUMO
CONSTRUCTION AND TRADING CC
Eighth
Defendant
Coram:
Chesiwe J, Daniso J
et
Cronje AJ
Heard:
26 July 2024
Delivered:
22 August 2024
Summary
:
Appeal against order upholding exception against amended particulars
of claim not disclosing a cause of action. Court
a
quo
at instances referring to wrong
test. Correct test also applied. Appeal dismissed with costs.
ORDER
1.
The appeal is dismissed.
2.
The Appellant pays the costs of the appeal on Scale C.
JUDGMENT
Cronje
AJ (Chesiwe
et
Daniso JJ concurring)
Introduction
[1]
The Appellant (referred to in the amended
particulars of claim as ‘the DHS’) instituted action
against the Respondent
and the other Defendants, whereupon the
Respondent filed an exception stating that the pleadings do not
disclose a cause of action
against it. The Appellant thereupon
filed an amended particulars of claim. On 16 May 2023, the
matter came before Mahlangu
AJ wherein the Court upheld the exception
and granted the Appellant leave to amend the particulars of claim, if
so advised, within
thirty (30) days of that order. The Appellant was
ordered to pay the costs of the exception. Dissatisfied with the
Mahlangu AJ
order, the Appellant appeals against it.
The
Pleadings
[2]
In the amended particulars of claim, the Appellant
states that the dispute arising between each of the Defendants and
itself depends
on the determination of ‘
substantially
the same questions of law and/or fact
’
which,
if such Defendants were sued separately, would arise in each separate
action, and the Appellant is therefore, by virtue of
the provisions
of rule 10(3) of the Uniform Rules of Court, entitled to sue the
Defendants in one action.
[3]
It avers that it entered into written building
contracts between the Second to Eighth Defendants with reference to
annexure ‘A’
to the particulars of claim. It is
common cause that the Respondent does not form part of the
contractors, and no written
contract is alleged. The Appellant,
however, drew the Respondent into that matrix of facts on
inter
alia
substantially the same questions
of law and/or fact. The salient provisions of the amended particulars
of claim for this judgment
are stated in para 13 of the amended
particulars of claim:
‘
13.
The second, third, fourth, fifth, sixth, seventh and eighth
defendants breached the erstwhile building contracts
by, despite
demand, failing or neglecting or refusing to render to the plaintiff
a full, proper, complete or adequate statement
of account in respect
of the project(s) comprising of the following documents and/or
information, including but not limited to:
. . .
13.5 Proper
records
of all building materials supplied to it, if any, by the first
defendant for the project(s);
and/or
13.6 All
orders
for building materials placed by it from the supplier (the first
defendant
); and/or
13.7 All
invoices
issued by the building material supplier (the first defendant)
regarding building materials supplied to it and the prices and/or
13.8 All invoices
certified by it which prove receipt of the relevant building
material; and/or
13.9 Pricelists for
building material agreed upon by it and the
building material
supplier (the first defendant)
; and/or . . .’ (My
emphasis.)
[4]
The Appellant states that the High Court set
various agreements and decisions related to it aside, including the
erstwhile building
contracts. The payments referred to in paras
18 and 19 of the amended particulars of claim formed part of the
various
agreements
and/or
decisions which were reviewed and set aside. In para 18 it is stated
that the Appellant, represented by its Chief Financial
Officer, made
payments of
R34 089 179.20 to the Respondent, represented by one
Lukas Meyer, and para 19 held that Lukas Meyer, ‘
purportedly
acting on behalf of the plaintiff
,’
paid the Fifth Defendant R500 000.00.
[5]
The particulars of claim furthermore state that:
‘
20.
There
had been no legal, moral or natural obligation to make such payments
to the Defendants.
21. The
payments were made by the DHS to the defendants on the
assumptions
by the DHS that payments are made in advance in that
:
21.1
the debt
will become due to the first defendant in that building material to
the value of R34 089 179.20 will be supplied by the
first defendant
on behalf of the DHS
to the second, third, fourth, fifth, sixth,
seventh and eighth defendants for the construction of low-cost
housing; and/or
21.2 The
payments in respect of building material would be legally payable
by the DHS
to the first defendant; and/or
21.3
The payments made by the first defendant to the fifth defendant would
be
legally payable
by the DHS
.’
(My emphasis.)
[6]
It
concludes that the said
assumptions
prove
to have been incorrect and false thereafter.
[1]
The
link between the Appellant, the Respondent, and the other Defendants
is clearly pleaded. It is pleaded that the High Court declared
the
decision by the Appellant ‘. . . to make advance payments
unlawful and was such decision accordingly reviewed and set
aside”.
The payments referred to in paragraphs 18 and 19 form part of the
various agreements and/or decisions which were
reviewed and set
aside.
[2]
Paragraphs
18 and 19 specifically refer to the Respondent. It has, therefore, to
be accepted that there was a
causa
for
the payments at the date of the payment, as it is impossible to set
something that is not in existence, aside. In para 33 of
the amended
particulars of claim, the averment is repeated with respect to the
other Defendants.
[7]
It further pleads that:
‘
The
inherent purpose, spirit, purport and/or express and/or implied
and/or tacit
terms
and provisions
of
the
erstwhile
building
contracts and
material
supply agreements
,
[3]
the
legal incidents of the said contractual agreements and/or
alternatively, the nature and
substance
of the particular relationship
between
the DHS, the
erstwhile
building supplier
and
the erstwhile contractors was premised on the DHS entrusted the first
defendant with trust monies to be utilised by the second,
third,
fourth, fifth, sixth, seventh and eighth defendants (as erstwhile
contractors) to perform and complete housing projects.’
(My
emphasis.)
Discussion
[8]
Various
paragraphs of the judgment of Mahlangu AJ refer to the pleadings
being vague and embarrassing or portraying an intelligible
cause of
action.
[4]
However,
the court
a
quo
also
refers to the claim not disclosing a cause of action. Regarding the
case law and discussion of the court
a
quo
,
it cannot be said that the court did not appreciate the difference
between the two types of exceptions.
[9]
In
Luke
M Tembani and Others v President of the Republic of South Africa and
Another
,
[5]
the
Supreme Court of Appeal held:
‘
Whilst
exceptions provide a useful mechanism “to weed out cases
without legal merit”, it is nonetheless necessary that
they be
dealt with sensibly. It is where pleadings are so vague that it
is impossible to determine the nature of the claim
or where pleadings
are bad in law in that their contents do not support a discernible
and legally recognized cause of action, that
an exception is
competent. The burden rests on an excipient, who must establish
that on every interpretation that can reasonably
be attached to it,
the pleading is excipiable. The test is whether on all possible
readings of the facts no cause of action
may be made out; it being
for the excipient to satisfy the court that the conclusion of law for
which the plaintiff contends cannot
be supported on every
interpretation that can be put upon the facts.
[6]
(Footnotes
omitted.)
[10]
In
Vermeulen
v Goose Valley Investments (Pty) Ltd
[7]
it was
held that
an
exception to a cause of action that is not disclosed by a pleading,
cannot succeed unless it is shown that,
ex
facie
the
allegations made by a plaintiff and any document upon which his or
her cause of action may be based, the claim is (not
maybe)
bad in law.
[8]
[11]
It is
correct that a difference should be drawn between the
facta
probanda
(the
material facts)
[9]
and
the
facta
probantia
.
[10]
As I
stated above, the question is whether, based on all the averments
made, it can be said that facts support a
causa
of
unjustified enrichment and nothing else.
[12]
Concerning
the grounds of appeal, it can be accepted that the court
a
quo
at
instances referred to the wrong test.
[11]
However,
the court
a
quo
also
referred to the correct test. The Appellant submits that the matter
that served before the court
a
quo
for
adjudication was an exception that exclusively required the court to
determine whether the amended particulars of claim disclosed
a
cause of action
,
nothing more. I have already dealt with the difference between the
cause of action pleaded and one that contradicts it –
the
contracts as well as the nexus apparent at the time of disbursement.
[13]
The
Respondent argues that the Plaintiff cannot rely on enrichment to
reclaim what has been performed in contract or some understanding
with the Respondent. My view of
Esorfranki
Pipelines (Pty) Ltd v Mopani District Municipality
[12]
(Esorfranki),
on
which the Respondent relies, is that it is not on par with the matter
before us.
Esorfranki
submitted
a tender and did not perform services. It sought damages, and the
debate centered around constitutional duties, private
law duties
enforceable by an action for damages and compensation under PAJA. The
difference is aptly explained in
Afrisure
CC and Another v Watson NO and Another
[13]
where
the Court held:
‘
I
do not believe anyone can disagree with the concept that in a case
where both parties have performed their reciprocal obligations
under
an illegal contract, simple justice between man and man will usually
dictate that, in order to avoid an undue benefit to
the plaintiff,
both parties should retain whatever they received. This must
particularly be so in a situation where the defendant's
performance,
received by the plaintiff, consisted of a factum that can
no longer be returned or where such performance
would, in any event,
upon restoration, be of no value to the defendant.’
[14]
[14]
The
Respondent argues that payment was premised on a
causa
.
The fact that the
causa
was
declared unlawful does not imply that no reciprocal obligation was
created at that stage. According to it, the Appellant claims
enrichment on the back of the apparent declaration by the Court of
the decision being unlawful. It is not pleaded that the building
material for which the Respondent was liable had, in fact, not been
delivered.
[15]
Rather,
it argues that the Plaintiff cannot make a case against the
Respondent based on enrichment and that payments were made fruitless,
wasteful, and unauthorized.
Conclusion
[15]
A careful reading of the pleadings indicates
various references that establish a
nexus
other than unjustified enrichment. The wording in
formulating the claim may establish a causa, but not the one pleaded.
In my view,
the Appellant’s amended particulars of claim do not
substantiate a cause of action based on unjustified enrichment on all
possible readings of the allegations. The appeal, therefore, has to
fail.
Costs
[16]
The costs should follow the result, and the
Appellant should pay the costs of the Respondent on Scale C.
ORDER:
[17]
In the result, the following order is made:
1.
The appeal is dismissed.
2.
The Appellant pays the costs of the appeal on Scale C.
CRONJÉ,
AJ
I
agree:
CHESIWE
J
I
agree:
DANISO,
J
I
agree:
Appearances
For
the Appellant:
Adv.
N Snellenburg SC
Adv.
I Macakati
Instructed
by:
Phatshoane
Henney Attorneys
For
the Respondents:
Adv.
S Grobler SC
Instructed
by:
Coetzees
Inc
C/O
Honey Attorneys
[1]
Paragraph 22 of the Amended Particulars of Claim.
[2]
Ibid para 23.
[3]
The material supply agreement relates to the Respondent.
[4]
Paragraphs
5, 13.2, 14 and 28.
[5]
Luke
Tembani and Others v President of the Republic of South Africa and
Another
[2022]
ZASCA 70
;
2023 (1) SA 432
(SCA).
[6]
Ibid para 14. In its subsequent appeal to the Constitutional Court
in
President
of the Republic of South Africa and Another v Tembani and Others
[2024]
ZACC 5
, the Court did not make findings on the exception in that
matter. In
Pretorius
and Another v Transport Pension Fund and Another
[2018]
ZACC 10
;
[2018] 7 BLLR 633
(CC) reference was also made to the facts
pleaded. See para 15 in this regard.
[7]
Vermeulen
v Goose Valley Investments (Pty) Ltd
[2001]
ZASCA 53; [2001] 3 All SA 350 (A)
[8]
Ibid para 7.
[9]
Ascendis
Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and
Others
[2019]
ZACC 41; 2020 (1) SA 327 (CC).
[10]
Deltamune
(Pty) Ltd and Others v Tiger Brands Limited and Others
[2022]
2 All SA 26 (SCA); 2022 (3) SA 339 (SCA)
[11]
The pleadings being vague and embarrassing
[12]
Esorfranki
Pipelines (Pty) Ltd v Mopani District Municipality
[2022]
ZACC 41; 2023 (2) BCLR 149 (CC); 2023 (2) SA 31 (CC).
[13]
Afrisure
CC and Another v Watson NO and Another
[2008]
ZASCA 89
;
[2009] 1 All SA 1
(SCA).
[14]
Ibid para 46. See also:
Klokow
v Sullivan
[2005]
ZASCA 99
;
2006 (1) SA 259
(SCA) para 18. See also
State
Information Technology Agency SOC Ltd v Gijima Holdings (Pty) Ltd
[2017]
ZACC 40
;
2018 (2) BCLR 240
(CC);
Sekoko
Mametja Incorporated Attorneys v Fetakgomo Tubatse Local
Municipality
[2022]
ZASCA 28.
[15]
Footnote 1
para
21.