REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE NUMBER: 2021 / 17889
DELETE WHICHEVER IS NOT APPLICABLE
1.REPORTABLE: NO
2.OF INTEREST TO OTHER JUDGES: NO
3.REVISED : NO
Judge Dippenaar
In the matter between:
ANDZANIMIKULA TRADING (PTY) LTD PLAINTIFF
and
TCI-TISO (RF) (PTY) LTD DEFENDANT
JUDG MENT
17 MARCH 2025
Page 2
Delivered: This judgment was handed down electronically by circulation to the
parties’ legal representatives by e -mail. The date and time for hand -
down is deemed to be 10h00 on the 17th of MARCH 2025.
DIPPENAAR J:
[1] This is a trial action in which the plaintiff sough t payment of an amount of
R817 500, together with interest and costs. The salient facts were common cause and
were agreed to at pre -trial conferences held on 12 and 22 February 2025 respectively.
They further agreed the contents of the documentary evidence attached to the
particulars of claim. At the pretrial conferences, the parties further agreed on certain
dates, relevant to the action, which had been incorrectly referred to in both parties’
pleadings.
[2] That notwithstanding, the defendant did not agree to the matter being presented
based on the common cause facts. It insisted on evidence being presented. The
plaintiff accepted the duty to begin and called Mr Makgatsa as witness. He was the
individual who oversaw the transaction. The defendant intimated at the
commencement of the hearing that it intended calling a witness. After the closure of
the plaintiff’s case, it however elected not to call a witness and closed its case.1
[3] The genesis of the dispute li es in a facilitation agreement concluded between
the parties on 31 July 2020 in terms whereof the defendant would facilitate the supply
of goods and/or services by the plaintiff from various suppliers of such products, for
on-sale by the plaintiff to vario us off -takers. In terms of the agreement, a bank account
was designated by the plaintiff which was ceded to the defendant in terms of a security
cession agreement concluded between the parties. The conclusion of the agreements
and their terms were common c ause.
1 Both parties provided written heads of argument at the hearing. After the finalisation of oral argument,
the defendant’s counsel sought an opport unity to deliver supplementary heads of argument. I acceded
to this request and afforded the plaintiff an opportunity to respond. Both parties delivered supplementary
heads of argument, which have been taken into consideration.
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[4] The background facts were common cause . The plaintiff on 23 June 2020
purchased certain goods from a supplier for R15 million and on -sold them to the
Department of Health, Gauteng for R18 million. On 30 October 2020, the defendant
sent an invoice to the plaintiff for R16 350 100 relating to amounts due to it in terms of
the facilitation agreement. The facilitation agreement provided that the plaintiff was to
pay all amounts due to the defendant by 30 October 2020. It did not. Payment was
only made on 18 November 2020. On 18 November 2020, the defendant presented
the plaintiff with a further invoice for R940 125, dated 30 October 2020. Th at invoice
forms the nub of the dispute (‘the penalty invoice’) .
[5] The penalty invoice provided in relevant part:
‘Tax invoice dated 30 October 2025, Invoice Number – INV-0442, Reference Penalty, VAT
Number (4320289244),
Description - Penalty fee @ 5% of the total of R16 350 100,
Quantity (1.00) Unit Price (817 500.00) Vat (15%) Amount ZAR (817 500.00), Subtotal
(817 500.00), Total Standard Rate Sales (excluding capital goods) 15% (122 625.00),
Invoice Total ZAR (940 125.00), Total Net Payments ZAR (0.00), Amount Due ZAR
(940 125.00)
Due Date: 31 October 2020 .’
[6] The plaintiff’s pleaded case was that the defendant with out authority transferred
amounts of R16 350 100 and R940 125 from the plaintiff’s designated account to itself.
At the hearing, the plaintiff abandoned reliance on the transfer of the amount of
R16 350 100.
[7] The plaintiff pleaded:
‘When the defendant made the payment of R940 124 from the plaintiff’s FNB account to
the defendant’s designated account, the defendant did so without any legal basis to do so,
without valid causa alternatively fraudulently alternatively in error. The said s um was
neither due nor owing to the defendant ’.
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[8] It was undisputed that during November 2020, the defendant repaid an amount
of R122 650 to the plaintiff, resulting in the dispute between them concerning the
balance of R817 500, reflected on the penalty inv oice. The defendant pleaded that ’13.
The said amount was a discount of 13% on the penalty fee’.
[9] The parties agreed that the date of 31 July 2020 was incorrect and should have
been 30 October 2020 as being the date on which payments by the plaintiff to the
defendant should have occurred. They further agreed that the defendant was only paid
on 18 November 2020 , correcting the date pleaded . It was thus common cause that
the plaintiff did not pay the amount due on 30 October 2020, but only paid it late and
on 18 November 2020.
[10] The parties further agreed that the averment in para 5.182 of the particulars of
claim was incorrect wherein it was pleaded hat the parties agreed the defendant would
be payable on the successful conclusion of the services and payment re ceived from
the off -taker. It was agreed at the last pre -trial conference that the facilitation
agreement did not contain such a provision. The plaintiff further abandoned reliance
on the notion in the particulars of claim that the defendant was required to obtain the
plaintiff’s consent prior to transferring any amounts from its account. It thus conceded
the defendant’s contention that the invoices were deducted under clauses 10.1 and
10.3 of the security cession agreement. By necessary implication it wa s undisputed
that no consent was sought or provided for the transfer of the amount of R940 000.
[11] The crux of the defendant’s defence was that it deducted the disputed amount
as a penalty in terms of clause 8.1 of the facilitation agreement and was entitled to do
so. The penalty invoice stated expressly that the charge was levied as a penalty. In
argument, t he defendant submitted that the entire basis of the plaintiff’s claim fell away
once the late payment was conce ded as the agreement in its terms does not support
an unlawful payment made outside the terms of the agreement . It further contended
2 The second para 5.18.
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that no case for fraud was made out and that a new claim for enrichment was raised
in the plaintiff’s heads of argument.
[12] The plaintiff on the other hand argued that the common cause facts established
that the payment of R817 500 was made to the defendant without just cause and it
was entitled to judgment . It submitted that the defendant’s interpretation of clause 8.1
was wrong a nd that the agreement did not provide for the imposition of any penalty as
set out in the penalty invoice. It abandoned any reliance on fraud and limited its case
solely on the contention that the payment was made sine causa .
[13] In its heads of argument, the defendant submitted that “the plaintiff pivots away
from the claim set out in the particulars of argument and seeks to introduce a claim
from interpretation of contract ’. It disputed that there was any interpretation issue. That
contention is untenable. Th e very issue to determine is whether clause 8.1 permits the
defendant to levy a penalty of 5% of the contract price on the defendant. That requires
a proper interpretation of the facilitation agreement.
[14] The defendant ’s further submissions that the ‘new cla ims’ raised in the heads
of argument for the first time are ‘baseless, procedurally unfair and impermissible’, are
equally untenable. As the defendant itself relied on a particular interpretation of clause
8.1, it invoked the need to consider a proper inte rpretation of th at clause. The
enrichment claim based on the condictio sine causa , is also not a new claim , but is set
out in the particulars of claim when read in context, including paragraph 15.
[15] The issue between the parties in my view calls into question the proper
interpretation of the facilitation agreement. Clause 8.1 of the facilitation agreement
provides:
‘If any amount which is due and payable in accordance with the provisions of this
Agreement is not paid in full on its due date , the outstanding amount shall bear interest at
the prime overdraft rate plus 5% (five percent), calculated on and with effect from the due
date for payment thereof up to determining the date of actual payment thereof.’
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[16] It is trite that a unitary linguistic, contextual and purposive interpretation is
required.3 From a simple reading of the clause , the word ‘interest’ is expressly used.
If clause 8.1 was intended to provide for a penalty fee as a percentage on the
outstanding amount, the clause woul d have expressly stated it. Instead, the clause
provides for the insertion of a time period, which when considered with the express
use of the words ‘interest’ and ‘prime overdraft rate plus 5%’ signifies an intention to
calculate interest at a specific ra te over a specific period of time. The clause nowhere
refers to the full contract price forming a component of the interest calculation. The
levying of interest is an entirely different matter to the levying of a penalty. The context
and purpose of the cla use affirms this. In terms of clause 8.1 interest is to be levied at
a specific rate over a specific period, because a payment is not made on due date.
[17] The agreement in any event in express terms provides for the levying of a
penalty in certain circumstan ces in a separate provision. That makes it clear that a
distinction is to be drawn between interest and a penalty. In terms of clause 13 of the
agreement, a penalty is levied based on the amount due under the agreement at a
value of 5% of that value in the circumstances set out in clauses 11 and 12. The levying
of a 5 % penalty fee is expressly referred to in clause 13.2. It is undisputed between
the parties that the provisions of clauses 11, 12 and 13 do not relate to the present
dispute.
[18] During argument, the defendant submitted that on a proper interpretation, the
word ‘ interest ’ must include ‘penalty ’. That submission lacks merit. It is clear that the
agreement expressly draws a distinction between interest and penalty. In my view, f or
the reasons provid ed, applying th e relevant principles, clause 8.1 of the agreement
relates to interest and not a penalty.
[19] It is clear that there was a measure of confusion on the part of the defendant if
regard is had to its plea. The defendant pleaded:
3 Natal Joint Municipal Pension Fund v Edumeni Municipality 2012 (4) SA 596 (SCA) at 603F -604E;
Bothma -Batho Transport (Edms)Bpk v S Bothma & Seun Transport (Edms) Bpk 2014 (2) SA 94 (SCA0
para 12; KPMG Chartered Accountants (SA) v Securefin Limited and Anoth er 2009 (4) S A 399 (SCA0
at 409F -410A.
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‘8.2 The amount of R940 125 was a penalty fee which was due and payable by the plaintiff
to the defendant, as the plaintiff failed to make full payment to the defendant on or before
31 July 2020.
8.3 While the defendant was entitled to charge the plaintif f interest at the prime interest
overdraft rate plus 5%, calculated from the due date for payment up to and including the
date of actual payment, that is, from 31 July 2020 to 30 October 2020, the defendant
elected to charge the plaintiff only 5% of the to tal amount due, calculated over only one
calendar month’.
[20] It thus expressly pinned its colours to the mast of a penalty fee in paragraph 8.2
of the plea . That accords with the contents of the penalty invoice which also expressly
refers to a penalty fee. W hilst paragraph 8.3 of the plea is difficult to understand, it is
underpinned by the notion that instead of charging interest under clause 8.1 of the
agreement, the defendant elected to charge 5% of the total amount due, ‘calculated
over only one month.’ T hat seems to conflate the contractual provisions pertaining to
interest and those pertaining to a penalty. That is impermissible and is not in
accordance with the relevant contractual provisions which regulate the parties’
relationship.
[21] Factually, as appea rs from the penalty invoice, the defendant charged 5% of
the total amount due. That is common cause between the parties. The penalty fee of
5% of the contract does not, ex facie the defendant’s invoice, constitute a calculation
of the outstanding interest from 31 October 2020 to 18 November 2020. Rather, it is
framed as a calculation of 5 % of R16 350 100, being the whole contract amount, to
which VAT of 15% was added.
[22] The defendant has not in my view established any contractual entitlement to do
so and i ts reliance on clause 8.1 does not avail it. That clause provides a specific basis
on which interest may be charged for the period the plaintiff’s payment was late. The
penalty invoice was not calculated on that basis and is in an amount substantially in
excess of what clause 8.1 would allow.
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[23] It is trite that in a contractual claim, once a plaintiff has established that there is no
basis for a payment, a defendant attracts a duty of rebuttal. As held in Skjelbreds Rederi
A/S v Heartless :4
“The true position as to the question of onus is that the respondent bears the overall burden
of showing that it is possessed of rights which entitled it to claim the attachment order. The
overall onus remained on it throughout. However, since it is armed with a written
agreement which appears, on the face of it, to confer such rights on it, the appellants bear
the burden “(weerleggingslas”) of rebutting that prima facie case.”
[24] The defendant did not attempt to present any evidence to justify the penalty
invoice in its terms. It further did not raise any counterclaim nor seek set off in its plea.
Reliance was solely placed on the provisions of clause 8.1 of the facilitation
agreement. The defendant failed to establish that the clause provides it with a valid
defen ce.
[25] The plaintiff’s cause of action was framed on the basis of unjust enrichment . It
abandoned reliance on the alternative causes of action. I agree with the defendant
that those causes of action were not properly pleaded.
[26] The relevant principles pertaining to the condictio sine causa are set out by the
Supreme Court of Appeal thus in Mhlrari and Others v Nedbank Ltd : 5
‘The requirements for a claim based on unjust enrichment are that the defendant must be
enriched, the plai ntiff must be impoverished, the enrichment must be at the expense of the
plaintiff, and the enrichment must have been unjustified (sine causa). Although there is no
unified general enrichment action, these are requisites common to all enrichment actions
[18]…………the condictio sine causa specialis lies where the money is in the hands of the
defendant without cause, whether due to the plaintiff’s mistake or not ’.
[27] Considering all the facts, I conclude that the plaintiff has established that there
was no valid b asis for the payment of the penalty charge levied . The defendant was
4 Skjelbreds Rederi A/S v Heartless 1982 (2) SA 710 (A):
5 Mhlari and Others v Nedbank Ltd [2024] ZASCA 39 (4 April 2024) paras 17 - 18 and the authorities
cited therein.
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thus not entitled to make payment of the amount of R817 500 from the banking account
of the plaintiff . The payment of such amount was made without any legal cause. It was
not disputed by the defendant that the plaintiff was impoverished and the defendant
enriched by the payment of that amount. The common cause facts established this.
[28] It follows that the requi rements of the plaintiff’s cause of action have been met
and it i s entitle d to judgment as sought. Ultimately, the defendant did not establish any
cogent defence to the plaintiff’s claim. The plaintiff sought interest from the date on
which the payment was made from its banking account, to wit 18 November 2020.
Such date is appropriate and n o argument was advanced to the contrary .
[29] There is no reason to deviate from the principle that costs follow the result. The
plaintiff sought punitive costs on the scale as between attorney and client based on
the extension of the trial due to the defendant’s insistence that the plaintiff presents
evidence , notwithstanding the fact that all the material facts were agreed on between
the parties as being common cause. It fur ther sought the costs of senior counsel on
scale C.
[30] The defendant in turn argued that no punitive costs order was warranted and
that, even if the plaintiff was successful, the matter was not complicated and costs on
scale A should be granted.
[31] Ultimately, the purpose of the cross examination by the defendant was unclear
and simply resulted in plaintiff’s counsel successfully objecting to the line of
questioning pursued by defendant as it sought to undermine the very common cause
facts the parties had agree d upon on 21 February 2025. However, the evidence did
not substantially extend the duration of the trial , which was completed within one day .
For that reason, I am not persuaded th at a punitive costs order is warranted .
Considering the intricacies which a rose during the trial I am persuaded that costs
should be awarded as sought by the plaintiff.
[32] In the result, judgment is granted against the defendant for :
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1. Payment of the amount of R817 500.00
2. Interest on the amount in 1 above a tempore morae from 18 November 2020 to
date of payment.
3. Costs, including the costs of senior counsel , on scale C.
_____________________________
EF DIPPENAAR
JUDGE OF THE HIGH COURT
JOHANNESBURG
HEARING
DATE OF HEARING : 24 FEBRUARY 2025
DATE OF JUDGMENT : 17 MARCH 2025
APPEARANCES
PLAINTIFF ’S COUNSEL : Adv R. du Plessis SC
PLAINTIFF’S ATTORNEYS : Geyser van Rooyen Attorneys
DEFENDANT’S COUNSEL : Adv N. Nako
DEFENDANT’S ATTORNEYS : Strauss Daly Inc.