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[2024] ZAECMKHC 124
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Transnet Property A Division of Transnet Soc Limited v Gwavu (2773/2020) [2024] ZAECMKHC 124 (19 November 2024)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE DIVISION, MAKHANDA)
Not
reportable
CASE
NO. 2773/2020
In
the matter between:
TRANSNET
PROPERTY,
Plaintiff
A
DIVISION OF TRANSNET SOC LIMITED
(Reg
no. 1990/000900/06)
and
WELLINGTON
MBUYISELO GWAVU
Defendant
JUDGMENT
LAING
J
[1]
The plaintiff has sued the defendant for rental arrears in relation
to
the lease of a property situated at Peddie. The defendant has
brought a claim in reconvention, to which the plaintiff has raised
an
exception upon various grounds.
Plaintiff’s
case
[2]
In its particulars of claim, the plaintiff alleged that the parties
concluded
a lease agreement on 13 January 2012 in Gqeberha for the
use of the property as a hardware store. The period of the lease was
three
years. The rental was R 10,400 per month (excluding VAT), which
would escalate by 9% on an annual basis. It was payable in advance.
The usual remedies were available to the plaintiff in the event of
the defendant’s breach, which included treating the agreement
as a monthly tenancy that could be terminated at one month’s
notice. Interest was payable on all unpaid amounts and a certificate
of balance issued by the plaintiff would constitute
prima facie
proof of the defendant’s indebtedness. Upon expiry or
termination of the lease, the defendant agreed to vacate the
property.
[3]
The lease expired on 31 July 2014; the defendant has remained in
occupation.
The plaintiff alleged that the defendant had defaulted on
his rental payments and owed the amount of R 1,674,889 as of 12
September
2019. It was further alleged that the plaintiff had
cancelled the agreement and demanded payment of the outstanding
amount, but
to no avail.
Defendant’s
case
[4]
The defendant raised two special pleas. He contended that such
portion
of the plaintiff’s claim that arose more than three
years prior to the issue of summons had become prescribed;
furthermore,
he contended that the plaintiff’s claim disclosed
no cause of action for any amount that arose prior to the conclusion
of
the agreement.
[5]
In his
amended plea over, the defendant alleged that the agreement was
concluded with Transnet SOC Limited, not the plaintiff. He
went on to
aver that he had concluded a prior agreement in 1985 with the
previous owner of the property, viz. the erstwhile Ciskei
Government,
in terms of which he would develop the property at his own expense,
after which he would have the right to purchase
it at market value.
The parties in question concluded, in due course, a written deed of
sale whereby the defendant purchased the
property for R 15,000.
Transfer would take place once the defendant had made payment in
full. In that regard, the defendant alleged
that he had made a
part-payment of R 10,000. He pleaded further that all rights and
obligations in relation to the property had
become vested in Transnet
SOC Limited in 1994.
[1]
The
latter has refused or failed, however, to give effect to the deed of
sale.
[6]
The defendant further alleged that, considering the above deed of
sale,
the plaintiff was not entitled to any rental. Alternatively,
the plaintiff or Transnet SOC Limited had been unjustifiably enriched
by reason of the improvements that the defendant had made to the
property, which exceeded the value of the plaintiff’s claim.
The defendant admitted the conclusion of the lease agreement but
pleaded that it was invalid and unenforceable. He admitted that
the
lease had expired. He denied that he had defaulted on his rental
payments, alleging that there had been no obligation in that
regard.
[7]
In his
claim in reconvention, the defendant repeated to some extent the
averments made in his plea over.
[2]
He alleged that he had occupied the property in terms of a verbal
agreement concluded with the erstwhile Ciskei Government. He
stated
that he had applied successfully for the purchase of the property,
resulting in the conclusion of the deed of sale in 1997.
He was not,
however, in possession thereof. Despite the defendant's efforts to
make payment of the balance and to finalise the
transaction, he had
been unable to secure transfer. The plaintiff informed him, in 2011,
that this would not happen.
[8]
The defendant alleged that the conclusion of the lease agreement with
the plaintiff was an interim measure, pending the transfer of the
property. He pleaded, however, that the rental amount was exorbitant
and that he had concluded the agreement under duress, for fear of
losing occupation. He alleged that he had made various improvements
to the property and that the plaintiff had been enriched in that
regard by the amount of R 5,100,000. Consequently, the defendant
sought an order for payment thereof and that the agreement be
declared invalid and unenforceable.
The
exception
[9]
The plaintiff excepted to the defendant’s claim in
reconvention,
contending that it lacked the averments necessary to
sustain a cause of action. There are seven separate grounds upon
which the
plaintiff relies.
[10]
Regarding
the first ground, the plaintiff invoked rule 18(4) of the Uniform
Rules of Court (‘URC’). It argued that the
defendant had
failed to plead material facts with sufficient particularity in
relation to the verbal agreement allegedly concluded
with the Ciskei
Government. The same argument was made in relation to the defendant’s
assertion that the Ciskei Government
was the owner of the property,
and the allegations pertaining to his application for the purchase
thereof. The plaintiff’s
second ground was based on rule 18(6)
and
section 2
of the
Alienation of Land Act 68 of 1981
.
[3]
It argued that the defendant had failed to attach a copy of the
written deed of sale or to explain his inability to do so, and
had
failed to plead where, when, and by whom such deed was concluded.
[11]
The plaintiff’s third ground was that the defendant had failed
to make the necessary
averments regarding his allegation that the
parties had treated the lease agreement as an interim measure. The
same applied to
the defendant’s allegations of duress and
misrepresentation. The fourth ground was that the defendant had
failed to make
the requisite averments regarding the alleged lack of
consensus.
[12]
The fifth, sixth, and seventh grounds pertained to the improvements
allegedly made to the
property. The plaintiff argued that the
defendant had failed to plead whether he had obtained regulatory
approval or written consent
from the owner. It went on to invoke
rule
18(10)
of the URC, contending that the defendant had failed to set
out how he had calculated the value of the improvements; the
plaintiff
was unable to assess the quantum involved. Finally, the
plaintiff argued that the defendant had failed to plead that any
enrichment
of the plaintiff was undue and had failed to plead the
basis upon which he was entitled to any compensation.
Issues
to be decided
[13]
The various grounds relied upon by the plaintiff must be considered
individually to determine
whether there is a proper basis for the
exception. The test, ultimately, is whether it has been shown that
the defendant failed
to make the necessary averments to sustain his
claim in reconvention that the lease agreement be declared invalid
and unenforceable,
and that the plaintiff be ordered to pay him the
amount of R 5,100,000 for unjust enrichment.
[14]
A brief overview of the relevant principles is set out below.
Legal
framework
[15]
The provisions of
rule 18(4)
provide that:
‘
(4)
Every pleading shall contain a clear and concise statement of the
material facts upon which the pleader
relies for his or her claim,
defence or answer to any pleading, as the case may be, with
sufficient particularity to enable the
opposite party to reply
thereto.’
Furthermore,
rule 20(2)
stipulates:
‘
(2)
The declaration shall set forth the nature of the claim, the
conclusions of law which the plaintiff
shall be entitled to deduce
from the facts stated therein, and a prayer for the relief claimed.’
[16]
Mindful of the above, where a party is of the view that a pleading
lacks the averments
necessary to sustain an action or a defence,
rule
23(1)
is the procedural mechanism by which the objection can be
pursued. That is the situation that applies in the present matter.
[17]
In
Merb
(Pty) Ltd v Matthews
,
[4]
Maier-Fawley J reiterated some of the general principles:
‘…
These were
conveniently summarised by Makgoka J in
Living
Hands
[5]
as follows:
“
(a)
In considering an exception that a pleading does not sustain a cause
of action, the court will accept,
as true, the allegations pleaded by
the plaintiff to assess whether they disclose a cause of action.
(b)
The object of an exception is not to embarrass one’s opponent
or to take advantage
of a technical flaw, but to dispose of the case
or a portion thereof in an expeditious manner, or to protect oneself
against an
embarrassment which is so serious as to merit the costs
even of an exception.
(c)
The purpose of an exception is to raise a substantive question of law
which may have
the effect of settling the dispute between the
parties. If the exception is not taken for that purpose, an excipient
should make
out a very clear case before it would be allowed to
succeed.
(d)
An excipient who alleges that a summons does not disclose a cause of
action must establish
that, upon any construction of the particulars
of claim, no cause of action is disclosed.
(e)
An over-technical approach should be avoided because it destroys the
usefulness of the exception
procedure, which is to weed out cases
without legal merit.
(f)
Pleadings must be read as a whole and an exception cannot be taken to
a paragraph
or a part of a pleading that is not self-contained.
(g)
Minor blemishes and unradical embarrassments caused by a pleading can
and should be cured
by further particulars.”’
[18]
The learned judge went on to remark:
‘…
Where an
exception is raised on the ground that a pleading lacks averments
necessary to sustain a cause of action, the excipient
is required to
show that upon every interpretation that the pleading in question can
reasonably bear, no cause of action is disclosed.
It is trite that
when pleading a cause of action, the pleading must contain every fact
which would be necessary for the plaintiff
to prove, if traversed, in
order to support his right to judgment (
facta
probanda
).
The
facta
probanda
necessary for a complete and properly pleaded cause of action
importantly does not comprise every piece of evidence which is
necessary
to prove each fact (being the
facta
probantia
)
but every fact which is necessary to be proved.’
[6]
[19]
It is
helpful to mention that, in
Vermeulen
v Goose Valley Investments (Pty) Ltd
,
[7]
the erstwhile Appellate Division emphasised:
‘…
it is
trite law that an exception that a cause of action is not disclosed
by a pleading cannot succeed unless it be 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 may be) bad in law.’
[8]
[20]
A proper understanding of the legal meaning of the phrase, ‘cause
of action’,
is crucial when deciding an exception. In that
regard, Van Loggerenberg comments as follows:
‘
In
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
[9]
the following definition of “cause of action” was adopted
by the Appellate Division:
“…
every fact
which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to judgment of the
court. It does not
comprise every piece of evidence which is necessary to prove each
fact, but every fact which is necessary to
be proved.”
It is important to bear
in mind that the definition relates only to “material facts”,
and at the same time to have due
regard to the distinction between
the
facta probanda
and the
facta probantia
. Care must
be taken in any given case to distinguish the facts which must be
proved in order to disclose a cause of action (the
facta probanda
)
from the facts which prove them (the
facta probantia
). It
follows, therefore, that in order to ensure that his summons is not
excipiable on the ground that it does not disclose a cause
of action,
the plaintiff:
“
moet toesien dat
die wesenlike feite (dit wil sé die
facta
probanda
en nie die
facta
probantia
of getuienis ter bewys van die
facta
probanda
nie) van sy eis met voldoende duidelikheid en volledigheid
uiteengesit word dat, indien die bestaan van sodanige feite aanvaar
word, dit sy regskonklusie staaf en hom in regte sou moet laat slaag
t.a.v. die regshulp of uitspraak wat hy aanvra.”
[10]
What the
facta
probanda
are in each particular case, is essentially a matter of substantive
law, and not of procedure.’
[11]
[21]
The above principles constitute a basic legal framework within which
the present matter
must be considered. This will be done in the
discussion that follows.
Discussion
[22]
The grounds for the exception will be addressed sequentially.
First
ground
[23]
The offending portion of the defendant’s claim in reconvention
states as follows:
‘
3.
The Defendant has been in occupation of the property described as erf
456 Peddie (‘the
property’), since during or about 1983
and in terms of a verbal agreement with the Ciskei Government, who at
all material
times thereto was the owner of the property.
4.
During 1989, the Defendant consulted the Ciskei Government in order
to obtain
ownership of the property.
5.
The Defendant, assisted by one Mr Papu, employed by the Eastern Cape
Department
for Housing and Local Government (‘the Department’),
applied during or about September and October 1995 for the purchase
of the property.’
[24]
The immediate problem with the paragraphs in question is that the
defendant has failed
to comply with
rule 18(6).
The provisions
thereof require a party to state when, where, and by whom a contract
was concluded. That, however, is not necessarily
fatal. More
importantly, the defendant has failed to plead the terms and
conditions of the verbal agreement that would have given
rise to a
right to occupy and eventually purchase the property. The terms and
conditions are the
facta probanda
necessary for the defendant
to assert that the property was to have been transferred to him,
notwithstanding the later conclusion
of the lease agreement. They
would serve as the basis upon which the defendant could seek to avoid
the consequences of the latter
and have it declared invalid and
unenforceable. For the above reasons, the plaintiff succeeds on the
first ground.
[25]
Furthermore, it is of no benefit to the defendant that he pleaded, in
his amended plea,
that ‘on or around the year 1985, it [sic]
entered into an agreement with the then Government of Ciskei’
and thereafter
alleged certain terms and conditions thereof. There is
simply no indication that he intended to refer to the same agreement,
whether
concluded in 1983 or 1985 and whether verbal or otherwise.
[26]
Regarding the plaintiff’s complaint that the defendant had
failed to plead the basis
upon which he alleged that the Ciskei
Government was the owner and had failed to attach proof of ownership,
the shortcomings in
question pertain to the
facta probantia
of
the matter. The defendant’s allegation of ownership (a material
averment or
factum probandum
) must be accepted as true,
prima
facie
, for purposes of deciding the exception. Whether the
defendant can prove the necessary facts or
facta probantia
to
prove the allegation must be determined at the trial of the matter.
[27]
Similarly, the complaint about the lack of particularity in relation
to whom application
for ownership was made is of no consequence. In
the defendant’s amended plea, he averred that all rights and
obligations
were transferred from the Ciskei Government to Transnet
SOC Limited in 1994.
Second
ground
[28]
The following portion of the defendant’s claim in reconvention
is relevant:
‘
7.
Following the above approval–
7.1.
And during or about 1997, the Defendant entered into a written Deed
of Sale with the Eastern
Cape Department for Housing and Local
Government, in terms of which:
7.1.1. the parties agreed
that the Defendant would purchase the property for a sum of R 15,600;
[and]
7.1.2. the
Defendant would pay the aforesaid purchase price to the Department in
two instalments of R 10,000 and R 5,600.
7.2.
The defendant is not in possession of a copy of the agreement, and
accordingly unable to attach
a copy in terms of
rule 18.
’
[12]
[29]
The plaintiff has invoked
rule 18(6)
, pointing out that the defendant
had failed to indicate when, where and by whom the deed of sale was
concluded. It has also pointed
out that the provisions in question
required the defendant to have attached a copy of the deed of sale or
the part relied upon
to his claim in reconvention. He never did. As
was the case regarding the first exception, it is obvious that the
defendant has
failed to comply with the relevant procedural
requirements. His failure to have attached a copy of the deed of
sale, however, requires
further consideration.
[30]
In
Moosa
and Others NNO v Hassam and Others NNO
,
[13]
Swain J held that the respondents relied on a written agreement that
he described as a ‘vital link in the chain of the respondents’
cause of action against the applicants.’ In the absence
thereof, the basis for the cause of action did not appear
ex
facie
the pleadings.
[14]
The learned
judge acknowledged that the failure to attach a copy of the written
agreement was, nevertheless, capable of condonation
under
rule 27(3)
,
provided that good cause was shown.
[15]
[31]
The
decision must be compared with that in
Absa
Bank Ltd v Zalvest Twenty (Pty) Ltd and Another
,
[16]
where Rogers J, for a full bench, found that:
‘…
the
present case can thus be distinguished from
Moosa
. The latter
case is not authority for the proposition that a plaintiff is
deprived of its cause of action merely because it is
unable to annex
a copy of the agreement to its pleading. I have no difficulty in
accepting the correctness of Swain J’s ultimate
conclusion in
the
rule 30
application which served before him, having regard to the
particular facts disclosed in the affidavits. However, there are
passages
in his judgment which suggest that
rule 18(6)
applies even
where it is impossible for the plaintiff to annex a copy of the
written agreement on which he relies; that even in
such a case the
plaintiff requires condonation in terms of
rule 27(3)
; and that the
court might refuse condonation if it appeared, for example, that a
true copy of the agreement would not be available
by the time of the
trial. I respectfully consider that this is going too far. If it is
impossible for the plaintiff to produce
the written contract or a
copy thereof, the law allows him to prove the execution and terms of
the written contract by other evidence.
A rule of procedure cannot
deprive the plaintiff of his cause of action or of his right to
adduce secondary evidence of the contract,
though the rules would
still require the plaintiff to plead with appropriate particularity
the conclusion of the contract and its
terms.
…
I also, with
respect, disagree with the learned judge’s proposition that
“(i)n the absence of the written agreement
the basis of the
[plaintiff’s] cause of action does not appear
ex
facie
the pleadings” (para 18). If a plaintiff pleads the conclusion
of a written contract and the terms relevant to his cause
of action,
the cause of action will appear
ex
facie
the particulars of claim. That, after all, is how causes of action
based on written contracts were legitimately pleaded prior to
the
amendment of
rule 18(6)
in 1987, at a time when there was no
procedural requirement to annex the written contract. What is true is
that since 1987 a plaintiff
who fails to annex the written contract
will (at least in the absence of a properly pleaded explanation) be
in breach of
rule 18(6).
’
[17]
[32]
More
recently, in
Nedbank
Ltd v Yacoob
,
[18]
the court endorsed the approach taken in
Zalvest
.
A full bench, comprising Fisher J and Matthysen AJ, held that:
‘…
Provided a
plaintiff pleads the conclusion of the contract and the material
terms, the particulars of claim will disclose a cause
of action. The
failure to attach a contract will, in the absence of a properly
pleaded explanation for such failure, be in breach
of the procedural
rules pertaining to pleadings- but this does not deprive the pleader
of a cause of action.’
[19]
[33]
In the present matter, the defendant has pleaded the conclusion of a
written deed of sale
in 1997, with the Department, in terms of which
he would pay a purchase price of R 15,600 by way of two instalments.
Although he
has clearly failed to comply fully with the provisions of
rule 18(6)
, it cannot be said that the defendant has failed to plead
the necessary averments to sustain his claim in reconvention. The
relevant
paragraphs set out the
facta probanda
necessary to
establish a basis upon which he can seek to have the lease agreement
declared invalid and unenforceable.
[34]
The decision in
Zalvest
made it clear that non-compliance with
rule 18(6)
does not, on its own, mean that the defendant has failed
to plead the relevant material facts. In the present matter, he has
done
so. The averments appear
ex facie
paragraphs 7.1 and 7.2.
Inasmuch as the defendant has failed to plead where and by whom the
deed of sale was concluded, why he
no longer has it in his
possession, what steps he has taken to obtain a copy, and whether he
will produce such copy at trial, these
are evidential issues that are
more closely linked to the
facta probantia
than the
facta
probanda
. The question is, rather, whether he has pleaded the
necessary averments to sustain his claim in reconvention. The court
is satisfied
that he has. The plaintiff cannot succeed on the second
ground.
[35]
Admittedly,
the defendant’s averments seem to contradict his amended plea,
where he has alleged that the deed of sale was
concluded with the
Ciskei Government, not the Department. The purchase price differs,
too.
[20]
The plaintiff has,
however, formulated its exception on the basis that the defendant’s
pleadings lack the averments necessary
to sustain his claim in
reconvention. It has not relied on the basis that they are vague and
embarrassing.
[21]
Third
ground
[36]
The relevant paragraphs are the following:
‘
8.
In consideration of the above, and in those circumstances, the
Defendant and the Plaintiff
negotiated the lease agreement as
Annexure “TR-1” to the particulars of claim, and as an
interim measure and pending
the sale or transfer of the property to
the Defendant.
9.
The Plaintiff’s intentions with the written lease were,
inter
alia
, to increase the monthly rental of the property from R 4,855
(inclusive of VAT) to R 12,312 (inclusive of VAT), which increase was
unacceptable to the Defendant and conveyed to Plaintiff.
10.
As a result of such, the Plaintiff’s representatives advised
the Defendant that–
10.1. a
failure to conclude the lease agreement with the Plaintiff would
result in the Defendant’s eviction from
the property;
10.2. the
lease would only serve as an interim measure and pending the sale and
transfer of the property to the Defendant.
11.
In those circumstances, the Defendant concluded the current lease
agreement with the Plaintiff–
11.1.
under duress and at risk of losing his occupation to the property,
his business operations and improvements
made prior to the lease, and
his livelihood and means of earning;
11.2.
induced by the misrepresentation and false pretences of the Plaintiff
that the property would be sold and
transferred to the Defendant, and
the lease would only serve as an interim measure; [and]
11.3.
where the rental amounts were exorbitant, not accepted by the
Defendant.’
[22]
[37]
The
plaintiff contended that the defendant had failed to plead the
material facts upon which to allege that the lease agreement
was an
interim measure, that he was placed under duress, and that he was
induced to conclude it because of the plaintiff’s
misrepresentation. It is important to note that the defendant
pleaded, in terms of his claim in reconvention, that he had concluded
the agreement with the plaintiff, i.e. Transnet Property. This
appears to contradict his amended plea where he admitted that he
had
concluded the agreement with Transnet SOC Limited. Leaving aside the
potentially vague and embarrassing nature of this aspect
of the
pleading, the defendant also admitted that the parties concluded an
agreement based on annexure ‘TR 1’ to the
particulars of
claim. There is, however, no reference to the clause in terms of
which the parties allegedly agreed that the agreement
would serve as
an interim measure or how the defendant could avoid the consequences
of the sole memorial clause.
[23]
These are glaring deficiencies that undermine the basis upon which he
seeks to have the agreement declared invalid and unenforceable.
It
must be noted, however, that the defendant’s failure to have
indicated when, where, and by whom it was agreed that the
agreement
would serve as an interim measure are, as with the previous ground,
evidential issues more closely linked to the
facta
probantia
than the
facta
probanda
.
[38]
Regarding
the allegations of duress, the defendant pleaded that the Department
had threatened to evict him from the property, placing
him at risk of
losing occupation, the continued operation of the business, and the
value of his improvements. He averred that he
had concluded the
agreement because of such a threat. He did not, however, aver that
his fears were reasonable; he also failed
to aver that the threat was
unlawful or
contra
bonos mores
.
[24]
Insufficient material facts have been pleaded.
[39]
The
defendant, in relation to the allegation of misrepresentation, did
not indicate whether he relied on innocent misrepresentation
or
negligent misrepresentation or (for that matter) fraud. Each cause of
action depends on a separate set of essential averments.
[25]
The defendant has failed to plead these.
[40]
For all the above reasons, the plaintiff succeeds on the third
ground.
Fourth
ground
[41]
The plaintiff has objected to the following paragraph:
’
12.
In the above circumstances, the lease agreement concluded between the
Defendant and the Plaintiff
on 13 January 2012 stands to be set aside
on the grounds that the parties lacked the necessary consensus
between them.’
[42]
From the
contents of paragraph 11, set out earlier, the apparent basis upon
which the defendant alleged a lack of consensus was
that he never
accepted the ‘exorbitant’ rental that the Defendant
imposed. The courts, in deciding whether there was
sufficient
consensus between parties to have given rise to an agreement, adopt
an approach that is generally objective.
[26]
The defendant did not dispute that he had concluded the lease
agreement and admitted that it was based on annexure ‘TR 1’
to the particulars of claim. He pleaded no other material facts to
support his allegation or to provide a basis upon which he could
seek
to have the agreement declared invalid and unenforceable. The
plaintiff succeeds on the fourth ground.
Fifth,
sixth, and seventh grounds
[43]
The above grounds are closely intertwined and are conveniently dealt
with together. The
relevant paragraphs of the defendant’s claim
in reconvention are the following:
’
13.
Since the Defendant’s occupation of the property during or
about 1983 and up to and including
2007, the Defendant made various
improvements to the property,
inter alia
:
13.1. the
building and addition of a brick and mortar building for purposes of
a hardware and supermarket;
13.2.
extensions to the above buildings by addition of a further
supermarket; [and]
13.3. by
further improvements to the above buildings and the addition of
public toilets and 12 offices.
14.
The total value of the Defendant’s improvements to the property
is calculated as follows:
14.1. value
of the property, in an unimproved state, being R 400,000;
14.2. the
value of the property in an improved state, being R 5,500,000; [and]
14.3. the
difference and increase in value, being R 5,100,000.
15.
The Plaintiff has accordingly been enriched, at the expense and
impoverishment of the Defendant,
to the sum of R 5,100,000.’
[27]
[44]
The
plaintiff argued that the defendant had failed to plead that he had
obtained the necessary regulatory approval or written consent
from
the plaintiff before making the improvements. It is unclear, however,
why such approval or consent was required for the defendant
to have
relied on an enrichment claim; this is not a prerequisite for a claim
arising from, for example,
negotiorum
gestio
,
which appears to be the situation in the present matter.
[28]
[45]
This leads,
in turn, to the question of whether the defendant has made the
necessary averments to claim payment of the value of
the alleged
enrichment. This will depend, of course, on the defendant’s
cause of action. If it is the
negotiorum
gestio
,
then the defendant was required to have pleaded the essential
requirements.
[29]
He has not
done so. Similarly, if it was one of the
condictiones
,
[30]
then he was required to have made the necessary averments. He has not
done so. Such averments as have been made are entirely inadequate
to
sustain a cause of action based on enrichment, in whatever shape or
form it might be.
[46]
Turning to the plaintiff’s remaining objection in relation to
the quantum pleaded
by the defendant, the latter’s failure to
have complied with the requirements of
rule 18(10)
of the URC is not
necessarily fatal. It might well have prevented the plaintiff from
having been able to assess, reasonably, the
quantum in question; it
might well have amounted to an irregular step, attracting the
remedies available under
rule 30.
It does not, however, mean that,
because of such failure alone, the defendant is unable to sustain a
cause of action based on an
enrichment claim.
[47]
For the above reasons, the plaintiff cannot succeed on the fifth and
sixth grounds but
succeeds on the seventh ground.
Relief
and order
[48]
Counsel for
the defendant suggested, with reference to
Venter
and Others NNO v Barrit; Venter and Others NNO v Wolfsberg Arch
Investments 2 (Pty) Ltd
,
[31]
that the plaintiff could not rely on the exceptions raised when the
real complaint was that it did not have enough information
to prepare
for trial.
[32]
That is not the
situation here. In
Venter
,
Potgieter AJ emphasised that:
‘
[t]he basic
requirement is that the defendant must have a clear enough exposition
of the plaintiff’s case to enable it to
take instructions from
the client and file an adequate response to the claim in the form of
a plea.’
[33]
[49]
In the present matter, the defendant has not, overall, met the basic
requirement. There
is simply not clear enough an exposition of his
claim in reconvention to permit the plaintiff to deliver an adequate
response.
[50]
Furthermore,
counsel referred to
Vermeulen
[34]
to argue that pleadings are only excipiable when no possible evidence
can be led thereon. In that regard, however, the Supreme
Court of
Appeal dealt with a situation where the appellant’s claim
depended on the existence of a written agreement of sale
for
immovable property. The cause of action was challenged by the
respondent on the basis that the description of the property
was
insufficient to be identified without having recourse to the
negotiations that preceded the signing of the agreement. The court
held, per Marais JA, that an excipient was required to show that,
ex
facie
the written documents relied upon by the appellant, it would not be
possible to identify the property and that there was no reason
to
suppose that any admissible evidence could exist which could enable
that to be done.
[35]
The
decision referred to by counsel does not take the defendant’s
case any further. A distinction must be drawn between the
facta
probanda
and the
facta
probantia
;
the defendant has simply failed to plead the former, as already
discussed.
[51]
The plaintiff has demonstrated that the defendant’s claim in
reconvention is, in
the main, excipiable. To the extent set out in
the discussion above, there is merit to the first, third, fourth, and
seventh grounds.
There is no merit to the second, fifth, and sixth
grounds, for the reasons provided. Whereas there are serious
shortcomings in
the defendant’s pleadings, the court is not of
the view that these are irremediable. There is no basis upon which to
dismiss,
entirely, his claim in reconvention.
[52]
Regarding costs, the plaintiff has been successful regarding most of
the grounds upon which
it based its exception. Considering that it
was unsuccessful in relation to the remaining grounds, however, it
would be unfair
to require the defendant to pay all its costs. The
order will reflect this accordingly.
[53]
In the circumstances, the following order is made:
(a)
the exception is upheld;
(b)
the defendant is granted leave to amend his claim in reconvention
within ten (10) court days of
the date hereof; and
(c)
the defendant is ordered to pay 60% of the plaintiff's costs.
JGA
LAING
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the plaintiff:
Adv Ndamase
Instructed
by:
SM Vakalisa Inc
94 Bekker Road
Thornhill Office Park
Building 14
Vorna Valley
Extension 10
Midrand
Tel: 010 054 6971
Email:
siphathekile@smvakalisa-inc.co.za
smvakalisa@smvakalisa-inc.co.za
Ref: Mr Vakalisa/MS
Maphosa/ SMV1743
c/o NN Dullabh & Co.
5 Bertram Street
MAKHANDA
6139
Tel: 046 622 6611
Email:
naran@dullabhs.co.za
For
the defendant:
Adv Mashiya
Instructed
by:
Moletsane PN Attorneys Inc
Section 33
Tecoma, Arcade
6 – 8 Chamberlain
Road, Berea
EAST LONDON
Tel: 043 051 6410
Cell: 079 944 0440
Email:
admi@mpnlaw.co.za
magmpnlaw@gmail.com
c/o Mfundo Ntshwaxa
Attorneys
118A High Street
MAKHANDA
Email:
mfundo@nattorneys.co.za
Date
heard:
01 August 2024.
Date
of delivery of judgment:
19 November 2024.
[1]
The
plaintiff has referred to ‘Transnet SOC (Pty) Ltd’. This
appears to be incorrect. In terms of
section 8(2)
, read with
sections 1
and
11
(3)(c) of the
Companies Act 71 of 2008
, the
corporate entity in question must be either a private company or a
state-owned company, it cannot be both.
[2]
Many
of the averments are confusing and contradictory. This aspect will
be discussed further in due course.
[3]
The
provisions contained in
section 2(1)
of Act 68 of 1981 stipulate
that no alienation of land shall, subject to the provisions of
section 28, be of any force or effect
unless it is contained in a
deed of alienation signed by the parties or the agents acting on
their written authority.
[4]
Unreported,
GJ case no 2020/15069, dated 16 November 2021. Cited in DE van
Loggerenberg,
Erasmus:
Superior Court Practice
(Juta, vol 2, 2ed, service 20, 2022), at D1-293.
[5]
Living
Hands (Pty) Ltd v Ditz
2013
(2) SA 368
(GSJ), at 374G.
[6]
Van
Loggerenberg,
op
cit
,
see n 4 above.
[7]
[2001]
3 All SA 350 (A).
[8]
At
paragraph [7].
[9]
1922
AD 16
, at 23.
[10]
Makgae
v Sentraboer (Koöperatief) Bpk
1981
(4) SA 239
(T), at 245D. The extract can be loosely translated as
follows: ‘the plaintiff must ensure that the material facts
(that
is to say the
facta
probanda
and not the
facta
probantia
or evidence to prove the
facta
probanda
)
of his claim must be set out with sufficient clarity and
completeness that, if the existence of such facts is accepted, they
support the legal inference drawn by the plaintiff and allow him to
succeed in respect of the relief or order that he seeks.’
(Own
translation.)
[11]
Van
Loggerenberg,
op
cit
(service 21, 2023), at D1-307.
[12]
Sic.
[13]
2010
(2) SA 410 (KZP).
[14]
At
paragraph [18].
[15]
At
paragraphs [20] and [21].
[16]
2014
(2) SA 119
(WCC).
[17]
At
paragraphs [20] and [21].
[18]
2022
(2) SA 230 (GJ).
[19]
At
paragraph [22].
[20]
In
the amended plea, the purchase price is indicated as R 15,000; the
claim in reconvention refers to an amount of R 15,600.
[21]
Rule
23(1) draws a clear distinction.
[22]
Sic.
[23]
Clause
60 seems to comprise the sole memorial clause of the agreement.
Sub-clause 1 stipulates that the agreement contains
the entire
agreement between the parties and no conditions, warranties, or
representations made would be of any force or effect
unless reduced
to writing and signed by the parties. Sub-clause 2 applies the same
principle to any amendment of, addition to,
or cancellation of the
agreement.
[24]
See
the requirements for reliance on duress in
Arend
and Another v Astra Furnishers (Pty) Ltd
1974 (1) SA 298
(CPD), at 306; the decision was cited with approval
in
BOE
Bank Bpk v Van Zyl
2002 (5) SA 165
(CPA), at paragraph [36], and mentioned, too, in LTC
Harms,
Amler’s
Precedents of Pleadings
(LexisNexis, 9ed, 2018), at 181.
[25]
The differences fall outside the ambit of this judgment. For the
details thereof, see Harms,
op
cit
,
at 203- 6, and 262- 5.
[26]
See
the discussion of the subject in GB Bradfield,
Christie’s
Law of Contract in South Africa
(LexisNexis, 7ed, 2016), at 28- 31.
[27]
Sic.
[28]
The
requirements for a claim based on
negotiorum
gestio
are discussed in Harms,
op
cit
,
at 275- 7, where it is defined as ‘the voluntary management by
someone (the
gestor
)
of the affairs of another (the
dominus
)
without the consent or knowledge of the latter.’
[29]
Ibid
.
[30]
From the pleadings, the defendant possibly intended to rely on
either the
condictio
indebiti
or the
condictio
sine causa
,
but this is far from clear.
[31]
2008 (4) SA 639
(CPD).
[32]
At paragraph [14].
[33]
At
paragraph [15].
[34]
See
n 7 above.
[35]
At
paragraph [7].