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1988
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[1988] ZASCA 122
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Dantex Investment Holdings (Pty) Ltd v Breener NO and Others (121/88) [1988] ZASCA 122; [1989] 1 All SA 411 (A) (29 September 1988)
30
IN THE SUPREME COURT OF SOUTH AFRICA (APPELLATE DIVISIÓNT
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 partíes 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
4. 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.
5. 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. Á non-owner and non-occupier of land
has no right to claim
damages from
a person in occupation.
2.
No conduct on the part of
the defendants has been alleged which gives rise to any cause of action for
damages by the plaintiff.
3.
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
Honoré,
The South Áfrican 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 hás 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
1977
(3) SA 394
(A) at pp. 403
C-D, 405 G-H;
Matlou v. Makhubedu
1978
(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