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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No: 1934/2019
In the matter between:
NICHOLAAS VAN DER BERGH Plaintiff
and
THE GOVERNMENT OF THE FRENCH REPUBLIC Defendant
JUDGMENT: 9 DECEMBER 2024
FRANCIS, J:
[1] Nicholaas Van Der Bergh (‘plaintiff’) instituted action against the Government of
France ( ‘defendant’) for payment of the sum of R 244 761 227 and interest
thereon.
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[2] The basis of plaintiff’s claim, as set out in his particulars of claim, may briefly be
summarised as follows:
[2.1] As part of defendant’s on -going campaign against drink -driving, it
enacted Decree No. 2012 -283 (“the Decree”) which made it
mandatory, subject to limited exceptions, for every motor vehicle
driver in France to pos sess a n unused portable testing device
capable of analysing a person’s breath to determine his/her blood
alcohol level (‘breathalyzers’).
[2.2] The practical effect of the requirement that each motor vehicle
contains an unused breathalyzer was that each motor vehicle was
required to have two breathalyzers in the event that one was
used.
[2.3] During late 2011 and early 2012, and to ensure an adequate supply
of breathalyzers to give effect to the Decree, defendant, through its
duly authorized officials , requested the production of breathalyzers
for use in France from persons capable of producing them.
[2.4] Defendant, through its duly authorized officials, orally represented
to plaintiff that there was no limit to the number of breathalyzers
that could be purchased in France for so long as the Decree
remained a law with a consequence (or penalt y) for those who
contravened it.
[2.5] At the time, to defendant’s knowledge, plaintiff controlled the
production of breathalyzers in Cape Town through Redline
Products (Pty) Ltd (“Redline”); one of only two producers in the
world of the sort of breathalyzers that were required.
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[2.6] During November 2011, plaintiff and defendant’s duly authorized
representative concluded an oral agreement that in the event of the
Decree being enacted, plain tiff would supply at least 55 million
breathalyzers for the period 1 January 2012 to 31 December 2012
to be sold in France and, thereafter, the number of breathalyzers
required would be agreed annually. The aforesaid agreement was
conditional on the Decree being enacted and the defendant
confirming the number of breathalyzers to be agreed upon on an
annual basis.
[2.7] The Decree was enacted on 28 February 2012 and , during early
2012, a duly authorize d official of defendant orally confirmed the
agreement and requested an undertaking from plaintiff that the
latter would provide at least 40 million breathalyzers annually at a
reasonable, alternatively marked-related rate, for sale in France.
[2.8] Acting in terms of the agreement and the aforesaid representations
by defendant’s duly authorized official, plaintiff took steps to have
Redline produce the breathalyzers on his behalf and deliver them to
defendant, the French public, and foreign drivers in France.
[2.9] Defendant, the French population, and foreign drivers purchase d
the breathalyzers from plaintiff and paid plaintiff for the said s.
[2.10] In the circumstances, the plaintiff avers that an oral, alternatively a
partially oral, partially tacit, alternatively a tacit contract, came into
existence between plaintiff and the defendant during early 2012, in
terms of which:
[2.10.1] plaintiff undertook to satisfy defendant’s requirement
of at least 40 million breathalyzers annually for supply
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and sale in France in order for French and foreign
drivers to comply with the Decree; and
[2.10.2] defendant undertook to ensure the proper legal
implementation of the Decree, in terms of the str ict
requirements of the French Constitut ion and the
Declaration of Rights, 1789.
[3] To comply with the agreement and based on defendant’s representation that the
fine for non -compliance with the Decree was imminent, plaintiff and Redline
incurred substantial liabilities and expenses gearing up for the anticipated supply
of the breathalyzers. The Decree was enacted but it initially granted drivers a
four-month gr ace period delaying the enforcement of the fine from 1 July to 1
November 2012 to enable an increase in the supply of breathalyzers. Plaintiff
supplied breathalyzers to defendant, the French population, and foreign drivers to
the value of R202 155 930 from 1 January 2012 to 28 February 2013.
[4] After further delays in the enforcement of the fine, on 15 February 2013, the
Prime Minister of France announced the indefinite postponement of the
imposition of a fine for non-compliance with the Decree. On 2 8 February 2013,
defendant enacted Decree No 2013 -180, which confirmed the indefinite
postponement of the payment of a fine for not having an unused in a vehicle
whilst driving in France.
[5] The effect of the indefinite postponement of the penalty provision in the Decree
meant that whilst the Decree remained a law in France for the following 8 years,
drivers faced no consequences for not complying with it.
[6] After Decree 2013 -180 was enacted, the demand for , and sale of, breathalyzers
collapsed. Since there were no consequences for the breach of the Decree,
defendant, distributors, and customers refused to take any further deliveries from
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plaintiff. This, according to plaintiff, amounted to defendant repudia ting its
contract with plaintiff.
[7] As a consequence of defendant’s repudiation of the contract, plaintiff was unable
to sell any further breathalyzers to the French public and plaintiff suffered losses
in the total sum of at least R244 761 227. These losses related to plaintiff’s loss
of profits, the personal liabilities he incurred having stood as surety for Redline,
and the loss of dividends he suffered given the demise of Redline.
[8] Defendant has lodged an exception to plaintiff’s particulars of claim on the basis
that this Court does not have jurisdiction given the immunity which defendant
enjoys as a foreign state. Defendant avers that the particulars of claim do not
disclose a cause of action in that plaintiff has failed to plead the facts which
would demonstrate, if proved, that defendant does not enjoy immunity from this
Court’s jurisdiction. Plaintiff’s claim is thus bad in law.
DISCUSSION
[9] It is common cause that defendant is a foreign sovereign state.
[10] Foreign states are , as a general proposition, immune from the jurisdiction of
South African courts due to the provisions of the Foreign States Immunities Act
87 of 1981 (‘the Act’). Section 2(1)(a) of the Act provides that “foreign states shall
be immune from the jurisdiction of the courts of the Republic except as provided
in this Act or in any proclamation issued thereunder.” A ‘foreign state ’ includes
the government of any foreign state and would thus apply to defendant (see, s
1(2)(b) of the Act).
[11] There are exceptions to the general proposition.
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[11.1] Firstly, a foreign state may waive its immunity, either expressly or it
may be deemed to have waived its immunity (s 3(1) and (3) of the
Act). It will not be deemed to have waived its immunity if it has
taken any step to claim immunity (section 3(3)(b) read with (4)( a) of
the Act).
[11.2] Secondly, a foreign state is not immune from the jurisdiction of our
courts in respect of various claims, the relevant one for purposes of
this judgement are claims arising from a ‘commercial transaction ’
entered into by the foreign state. In this regard, section 4 of the Act
states:
“4. Commercial transactions
(1) A foreign state shall not be immune from the
jurisdiction of the courts of the Republic proceedings
relating to –
(a) a commercial transaction entered into by the
foreign state; or
(b) an obligation of the foreign state which by
virtue of a contract (whether a commercial
transaction or not) falls to be performed wholly
or partly in the Republic.
(2) …
(3) In subsection (1) ‘commercial transaction’ means –
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(a) any contract for the supply of services or
goods;
(b) any loan or other transaction for the provision
of finance and any guarantee or indemnity in
respect of any such loan or other transaction or
of any other financial obligation; and
(c) any other transaction or activity o f a
commercial, industrial, financial, professional
or other similar character into which a foreign
state enters or in which it engages otherwise
than in the exercise of sovereign authority, but
does not include a contract of employment
between a foreign state and an individual. ”
(own emphasis).
[12] Given the particulars of claim and plaintiff’s argument before this Court, it
appears that plaintiff has attempted to bring his action within this Court’s
jurisdiction by alleging that his cause of action is based on a commercial
transaction and is, therefore, a lawful exception to the general immunity provided
to foreign states in section 4(1)( a) of the Act. Plaintiff describes the reciprocal
obligation to be performed by defendant in paragraph 28.2 of the particulars of
claim as having to “ensure the proper and legal implementation of the Decree in
terms of the strict requirements of the French Constitution and Declaration of
Rights, 1789”.
[13] Mr Manca SC, who appeared for defendant, argued that the enactment and
implementation (or lack thereof) o f the Decree by the Prime Minister or the
President of the Government of defendant is patently an exercise of sovereign
authority. Thus, even if there was a contract between plaintiff and defendant
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which could be construed as a commercial transaction , defe ndant will still be
immune from the jurisdiction of this Court because defendant was exercising its
sovereign authority; the definition of commercial transactions excludes the
exercise of sovereign authority (s 4(3)(c) of the Act).
[14] In this matter, it is common cause that defendant did not expressly waive its
immunity. Nor can it be deemed to have been waived its immunity because in
this application, defendant is merely asserting its immunity. The crux of the issue
is whether plaintiff’s particulars of claim disclose a cause of action by alleging
sufficient facts which indicate that defendant does not enjoy immunity from the
jurisdiction of this Court.
[15] Exceptions must be dealt with sensibly as it is a useful mechanism to weed out
cases without legal merit ( Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority SA 2006 (1) SA 461 (SCA) para 3). When an
exception is raised against the pleadings that do not disclose a cause of action,
the averments pleaded by plaintiff must be accepted as true ( Marney v Watson
and Another 1978 (4) SA 140 (C) at 144). The onus lies with the excipient who
must show that the defect appears clearly ex facie the pleadings ( Luke M
Tembani and Others v President of Republic of So uth Africa and Another
[2022] ZASCA 70 (SCA) at para 14). Because the decision to uphold an
exception is drastic in effect in that it is final and dispositive of the legal issues
between the parties, the excipient must satisfy the court that on all possibl e
readings of the fact s, no cause of action may be made out ( Luke M Tembani
and Others v President of RSA and at para 14).
[16] It seems to me that , in essence, what plaintiff is claiming is that it supplied
breathalyzers to defendant for which it was paid but that defendant reneged on
its obligation to ensure that the Decree would remain in force and contain a
penalty provision for non -compliance in perpetuity. Plaintiff has not expressly
categorized the type of commercial transaction that he seeks to enforce but , in
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my view, even if what he has set out in his particulars of claim could be
construed as some sort of supply and/or distribution agreemen t, the transaction
as pleaded by plaintiff is substantially , and predominantly , political or
governmental in character. It is not a ‘commercial transaction’ even though it may
incorporate, or possibly incorporate, some elements of commercial activity.
[17] In my view, the principal difficulty with plaintiff’s submission is that the enactment
of legislation, or the amendment , or repeal thereof, is primarily political in nature
and involves t he exercise of sovereign authority. From what is stated in the
particulars of claim, it is apparent that the Decree was meant to apply to all
drivers in France and was designed to achieve a public objective. Certainly, it
appears that the purpose of the Decree was not to enact a law in order that
plaintiff may profit therefrom in perpetuity.
[18] Indeed, i f the purported agreement between plaintiff and defendant is
‘commercial’, then the agreement as pleaded by plaintiff is extremely vague and
runs counter to what one would expect of such an agreement: obligations in
commercial agreements are gen erally expressed in definite, quantifiable terms.
Having regard to the alleged agreement as a whole, with reference to the context
in which it was apparently made, the transaction has insufficient character of
commerciality. The Decree, in my view, was a political or governmental act that
fell outside the ambit of the definition of ‘commercial transaction’ under the Act.
[19] In the result, I am satisfied that the exception should succeed as the particulars
of claim do not disclose a cause of action . Defendant has immunity in terms of
the Act and this Court does not have jurisdiction to entertain plaintiff’s claim
against it.
[20] In so far as the issue of costs is concerned, I do not se e any reason why costs
should not follow the cause. Defendant has requested the costs for two counsel
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but I am of the view that this matter is not of such complexity that it required two
counsel.
[21] In the result:
[21.1] The exception is upheld with costs.
[21.2] Plaintiff is afforded an opportunity, within a period of 14 days of this
order, to amend his pleadings should he be able to establish any
facts upon which this Court could find that there is an exception to
the immunity of defendant in terms of section 4 of the Foreign
States Immunities Act 87 of 1991.
_____________________
FRANCIS, J
Judge of the High Court, Cape Town
APPEARANCES
On behalf of the Plaintiff Mr. N J van den Bergh - Plaintiff in person.
nic@fulltiltmusic.co.za
Counsel for the Defendant Adv Brendan Manca SC
bjm@capebar.co.za
Instructed by: Bisset Boehmke McBlain Attorneys (Mr S J Koen)
skoen@bissets.com
Heard: 8 November 2024
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Judgment delivered. 9 December 2024