About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
1988
>>
[1988] ZASCA 118
|
|
S v Mbi (47/88) [1988] ZASCA 118 (29 September 1988)
IN THE SUPREME COURT OF SOUTH
AFRICA
(APPELLATE DIVISION)
In the matter between:
DANTEX
INVESTMENT HOLDINGS (PTY) LTD
Appellant
and
A BRENNER, D
J RENNIE and M
I
SCHWARTZ
in
their
capacity as joint provisional
liquidators
of NATIONAL EXPLOSIVES (PTY)
LTD
(IN LIQUIDATION)
Respondents
CORAM:
RABIE, ACJ, HOEXTER, BOTHA, VAN HEERDEN,
GROSSKOPF, JJA
HEARD:
5 September 1988
DELIVERED:
29 September
1988
JUDGMENT
GROSSKOPF. JA
This is an appeal, with leave
granted by the court
a quo
, against a judgment of the
Witwatersrand Local Division
(GOLDBLATT
AJ) upholding an
exception-to
the
appellant's
particulars of claim, as amplified by further particulars.
2
For
convenience
I
shall refer to the part
í
es
as the
plaintiff
and the defendants. The
plaintiff
is a company having its registered office in Johannesburg. The
defendants
are
the
joint provisional liquidators of
National Explosives (Proprietary) Limited ("Natex"). It is
not clear what the nature
of the
plaintiff's
business is - it refused to reply to a request for
further
particulars on this point - but it does appear from further
particulars
furnished
in respect of damages allegedly suffered by the plaintiff that there
is some business relationship between the
plaintiff
and Natex in the manufacture of
explosives.
The
substantive
allegations in
the particulars of claim read as follows:
"3.
At all material times since the 1 August 1986 the plaintiff has, by
reason of a written agreement of lease entered into
with certain Rand
Leases Vogelstruisfontein Gold Mining Company Limited, been entitled
to occupy the Farm Vogelstruisfontein No
231 I.Q., situated in the
district of Roodepoort (hereinafter referred to as "the said
premises").
3
At all
material times since thë said
date
the Defendant has been in wrongful occupation of the said premises
and
despite
demand has
refused to vacate same.
Arising
out of such wrongful occupation, the Plaintiff has to date hereof
suf-fered damages in a sum of Rl 140 000 and will continue
to suffer
damages at the rate of R360 000 a month until the Defendant vacates
the said premises." To these rather terse
statements there was
added
a
paragraph 6,
reading:
"The
Defendant
disputes
the
Plaintiff's said claims." Since no "claims" in the
strict sense of the word are mentioned in the preceding paragraphs
of
the
pleading,
it is
difficult
to understand
the exact import of this paragraph. If the word "claims"
was intended to mean no more than allegations
or averments, paragraph
6 would seem to indicate that all the substantive averments in the
pleading were in dispute between the
parties.
On the
strength of the above averments the plaintiff claimed damages in the
amounts set out in paragraph 5, with alternative relief
and costs.
The defendants filed a request for further particulars, in which they
asked,
inter alia
:
4
"On
what grounds is it alleged that the
defendant's
occupation is wrong-ful?"
To this
the
plaintiff
replied
as follows:
"(a)
(i) The Defendants have no right to occupy the said premises. (ii)
The said premises now being occupied by the Defendants
in their
capacities as liquidators of National Explosives (Pty) Limited
(Natex) have, to the knowledge of the Defendants, been
leased to the
Plaintiff, and Plaintiff was in terms of the said lease to take
occupation of the said premises on 1st
August,
1986."
The next
step in the proceedings was the filing by the defendants of a notice
in terms of rule 23 of the uniform rules of court.
This notice reads
as follows:
"TAKE
NOTICE that the defendants intend to except to the particulars of
plaintiff's
claim on the
grounds that same are vague and embarrassing unless the following
cause of complaint is removed within fourteen days:
It is not
clear whether the
plaintiff
alleges
that it
occupied the said premises at any time prior to 1 August 1986. The
plaintiff is requested to clarify whether it enjoyed
such occupation
and, if so, the dates thereof."
5
The
plaintiff
did
not react to this notice. Thereafter the defendants filed the
following
exception:
"The
defendants hereby except to the parti-culars of plaintiff's claim on
the ground that they lack averments which are necessary
to sustain an
action,
alternatively
the said particulars are vague and
embarrassing. The grounds of exception are:
1.
A
non-owner and non-occupier of land has no right to claim damages from
a person in occupation.
No
conduct on the part of the defendants has been alleged which gives
rise to any cause of action for damages by the
plaintiff.
It is
not
clear whether the
plaintiff
ever
had occupation of the said premises.
WHEREFORE
the defendants pray that the excep-tion be upheld and that the
plaintiff's
claims be
dismissed with costs."
As already
stated, the exception was upheld with costs - hence the present
appeal.
For the
purposes of the present case it must be accepted that the
plaintiff
never was in possession or occupation of the leased premises.
Paragraph 1 of the exception was clearly intended to raise the
question
whether a lessee, who has not
6
received
occupation, is entitled to claim damages under the
lex Aquilia
for the unauthorized occupation of the leased premises by a third
person, i.e., whether in such a case the third person's conduct
is
unlawful,
in the delictual
sense, against the lessee. The decision in
Smit v. Saipem
1974
(4) SA 918
(A) suggests that according to Roman-Dutch law this
question is to be answered in the negative, although that by itself
might not
necessarily preclude an appropriate extension of the
Aquilian
remedy.
See, for
instance,
Minister van Polisie v. Ewels
1975 (3) SA 590
(A);
Administrateur, Natal v. Trust Bank van Afrika Bpk
1979 (3) SA
824
(A); and
Lillicrap,
Wassenaar and Partners v. Pilkington Brothers (SA) (Pty) Ltd
1985
(1) SA 475
(A). However, in argument before us Mr. Slomowitz, who
appeared for the plaintiff,
did
not contend that a lessee who is not in occupation of the leased
premises has a sufficient interest in the property to
entitle
him to invoke the Aquilian action in respect of damage to his limited
interest in the land in the same way in which, for instance,
the
owner or
bona
7
fide
possessor might take
action
to protect their more extensive interests. Of course, even if the
plaintiff
had had a
sufficient
interest to invoke the action, it
would in addition have had to allege fault, in the form of
dolus
or
culpa
,
on the part of the defendants as a necessary element of its action
for damages. As
I
shall show later the
particulars of claim
contain
no such allegation. It suffices to say on this part of the case,
therefore, that the plaintiff
did
not contend that the Aquilian remedy has been or should be extended
in this direction, and in any
event,
that fault on the part of the defendants has
not
been alleged.
The cause
of action relied upon by Mr. Slomowitz was a wider one. The plaintiff
had sufficiently alleged, he said, that the defendants
had
deliberately interfered with its contractual rights under the lease
with intent to injure it, and he contended that this interference
constituted an actionable delict. It is clear that an interference
with contractual rights can in certain circumstances
constitute
8
a
delict. What is less clear is what precisely the requirements for
liability are. Compare, for instance, the discussions in N.J.
van der
Merwe and P.J.J. Olivier, Die Onregmatige Daad in die Suid-Afrikaanse
Reg, 5th ed., pp. 369 to 381; Mc Kerron, The Law
of Delict, 7th ed.,
pp. 268-9; and Lee and Honor
é
,
The South
Á
frican
Law of Obligations, 2nd ed., pp. 306-7. In the present case Mr.
Slomowitz accepted that this cause of
action
required
fault
in the form of
dolus
on the part of the
defendants.
Moreover both parties were
ad idem
that, if such
dolus
has been
pleaded,
the pleading would disclose a cause of action in delict. For the
purposes of this case
I
assume, without
deciding,
that
the parties'
attitude
is correct.
I
would, however, emphasize
that the question whether
culpa
might
not constitute a sufficient element of fault to ground
liability
for damages for an unlawful interference with contractual relations
was not raised or debated in argument.
Since
there was in any event no allegation of
culpa
in the pleadings
I
need say no more about
this possibility.
9
The
question then is whether the plaintiff has
sufficiently
alleged that the defendants acted
dolo
or
intentionally.
Had there been an express allegation to this effect, that would of
course have been all that was
required.
It is common cause, however, that no such averment appears
expressly or by implication in the particulars of claim, nor does it
appear expressly in the further
particulars.
The
plaintiff's
argument
is that an averment of
dolus
on the part of the defendants may be inferred from the
further
particulars quoted above. In these particulars, it is contended, all
the elements of
dolus
, as this concept is understood in the
law of delict, are alleged. Reliance is placed particularly on the
following
allegations,
viz., that the defendants had no right to occupy the premises and
that the defendants knew that the premises were leased to the
plaintiff.
These
averments do not, howeyer, embrace all that is meant by
dolus
.
In
Geary & Son (Pty) Ltd v. Gove
1964 (1) SA 434
(A) at p.
441 D STEYN CJ pointed out that a plaintiff,
10
who bases
his claim for patrimonial loss on an intentional wrongful act on the
part of the
defendant,
must
allege
and prove,
inter alia
, that the defendant intended to cause the
plaintiff
loss. In the present case there is no such allegation - all that is
alleged is that the defendants acted with knowledge of the
plaintiff's
rights,
and that the
plaintiff
in
fact suffered loss. The pleadings are therefore not inconsistent with
a
belief
on the
part
of the defendants that the
plaintiff
would not suffer damage by being kept out of the leased
property.
A
state
of facts in
which such a belief could arise can easily be imagined - the
defendants might believe that the
plaintiff
required the premises
only
for future
expansion,
or
that the
plaintiff
has,
since entering into the lease, acquired other more suitable premises
and would prefer not to take occupation under the lease.
Moreover,
it is now accepted that
dolus
encompasses not ónly the
intention to achieve a particular result, but also the consciousness
that such a result would be
wrongful
11
or
unlawful. See
Nydoo en Andere v. Vengtas
1965 (1) SA 1
(A) at p. 15 A;
Suid-Afrikaanse
Uitsaaikorporasie v.
O'Malley
(3) SA 394 (A) at pp. 403 C-D,
405 G-H;
Matlou v. Makhubedu
(1)
SA 946 (A) at p. 962 A;
Ramsay v.
Minister van Polisie en Andere
1981 (4)
SA 802
(A) at pp. 807 C, 818 F-G;
Pakendorf
en Andere v. De Flamingh
1982 (3) SA
146
(A) at p. 157 E and, in the criminal law,
S
v. de Blom
1977 (3) SA 513
(A). In
Ramsay's
case,
supra
,
the majority of this court (per BOTHA JA) doubted whether
animus
injuriandi
,
including consciousness of wrongfulness, was a
necessary
element in all forms of
inluria
(see at pp. 818 F - 819 C). In
the present case we are, of course, not concerned with an
injuria
but
with a claim under the extended
lex
Aquilia
in which the
plaintiff
relies upon fault in the form of
dolus
.
The policy considerations which might
affect
the elements of various
types
of
injuria
consequently do not arise in the
present case, and
I
do not read the
judgment of BOTHA JA as casting doubt on the proposition that
dolus
or
animus
injuriandi
in principle requires
12
consciousness
of unlawfulness. And even if there may be policy considerations in
certain cases falling under the extended
lex Aquilia
why a
plaintiff, who relies on fault in the form of
dolus
, should
not be required to prove consciousness of unlawfulness, the present
is, in my view, not such a case. In the type of interference
with
contractual
rights
with
which we are here concerned there would appear to be no reason why
dolus
should not comprise all its normal elements. It follows,
therefore,
that the
plaintiff
should have
alleged consciousness of unlawfulness on the part of the
defendants,
and the question is whether it has done so.
In
the further particulars in the present case it is alleged, as an
objective reality, that the defendants have
no
right
to occupy the leased premises. The
plaintiff
does not, however, allege that the defendants are aware that their
conduct is unlawful. Indeed, the pleadings are entirely consistent
with the existence of an honest
dispute
about the
defendants'
right
to occupy the premises. Some force is lent
13
to
this
possibility
by the wording of paragraph 6 of the particulars of claim, which
I
have quoted
above,
and which, it will be
recalled,
records that the defendants dispute the
plaintiff's
claims. If the defendants believe
bona
fide
that they are
entitled
to occupy the
premises,
their conduct would not be tainted with
dolus
towards the
plaintiff.
It appears
from the foregoing that the
plaintiff
has neither alleged intent or
dolus
in express terms, nor has it sufficiently alleged the elements which
go to make up this concept. Since it is common cause that
an
allegation of
dolus
is essential to the
plaintiff's
cause of action, it follows, in my view, that the exception was
correctly
upheld.
The appeal
is dismissed with costs, including the costs of two counsel. The
period allowed by the court
a quo
for the amendment of the
plaintiff's
particulars of
claim is extended to one month from
date
hereof.
GROSSKOPF,
JA
RABIE, ACJ
HOEXTER,
JA Concur
BOTHA, JA
VAN
HEERDEN, JA