IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CIRCUIT LOCAL DIVISION, THEMBALETHU)
Case No: 04/26
In the matter between
NICE NEIGHBOUR (PTY) LTD PLAINTIFF
AND
BAREND FERREIRA NO 1ST DEFENDANT
STUART HOLDING NO 2ND DEFENDANT
JANET MARY HOLDING NO 3RD DEFENDANT
Date of Hearing : 17 March 2026
Date of Delivering : 30 March 2026
JUDGMENT
THULARE J
ORDER
(a) All three exceptions are dismissed.
(b) The defendants, jointly and severally, the one to pay the other to be
absolved, are to pay the costs on scale B.
[1] The defendants raised three exceptions against the plaintiff’s particular of claim
on the basis that it lacks averments which are necessary to sustain a cause of action
against the defendants , representing the Trust. The exceptions are opposed. The
first exception is that plaintiff averred in paragraphs 14 and 15 of the particulars of
claim that it fully performed in terms of the lease agreement by virtue of making
payments of the total values claimed by the Trust in the invoices which were
annexed to the particulars. In paragraph 16 the plaintiff averred that the payments
stipulated in another annexure were made sine causa. In paragraph 17 the plaintiff
averred that the indebiti payments were made in the bona fide and reasonable
believe that such payments were due and payable in accordance with the terms of
the lease. Ex facie the particulars, the terms of the lease and the content of the
invoices the payments were not made sine causa . The payments were made in
terms of a legal obligation to do so. The plaintiff’s particulars therefore did not
disclose a cause of action against the Trust.
[2] The second exception was that in paragraph 17 the plaintiff averred that the
payments reflected in the annexure were made in the reasonable believe that such
payments were due and payable in terms of the lease. On the assumption that the
payments were not due and payable in terms of the lease as pleaded, which was
denied, the pleaded belief was not reasonable and the proposed error by the
plaintiff was not excusable for the following reasons (a) the purported indebiti
payments according to the annexure occurred in the period between 1 December
2022 and 5 November 2025. In fact the payments w ere made since the
commencement of the lease on 1 December 2020; (b) from a plain consideration of
the lease and the invoices, any reasonable lessee in the position of the plaintiff
would have immediately noticed and raised objection to making payments of
amounts which were not due and payable in terms of the lease and (c) the plaintiff
however made several payments over a period of almost 5 (five) years which
according to them were not due and payable in terms of the lease. The alleged
indebiti payments were therefore not reasonable or excusable. Accordingly, an
essential requirement for the existence of the conditio indebiti is lacking, and the
claim therefore does not disclose a cause of action.
[3] The third exception was that the plaintiff a verred in paragraph 17 that in
making the purported indebiti payments, the Trust was enriched at the expense of
the plaintiff. Ex facie the lease, the invoices and the items stipulated in the
annexure, the amounts were paid for essential services and ameni ties for plaintiff’s
use and enjoyment of the lease premises. The payments were not made for the
benefit of the Trust, but to pay the relevant service provider (s) or authorities
entitled thereto. The trust was accordingly not enriched at the expense of the
plaintiff by virtue of the payments as pleaded by the plaintiff. The defendants
prayed that the exceptions be upheld, the particulars of claim be set aside and the
plaintiff be granted 15 (fifteen) days from the date of the orders to deliver its
amended particulars of claim if any.
[4] The Trust bore the onus to prove that the particulars of claim do not disclose a
cause of action [ Ocean Ego Properties 327 C C and Another v Old Life Insurance
Company (South Africa) Limited 2018 (3) SA 405 (SCA) at para 9]. This must be
assessed on any interpretation that can be reasonably attached to the plaintiff’s
pleadings. It is where pleadings are so vague that it is impossible to determine the
nature of the claim or where the pleadings are bad in law in that their contents do
not support a decidable and legally recognized cause of action that an exception is
competent [ [Luke M Tembani and Others v President of the Rep ublic of South
Africa and Another 2023 (1) SA 432 (SCA) a. para 14],
[5] There is clearly a dispute between the parties on what costs can be collected
from the lessee by the lessor in terms of the lease agreement. Each of the grounds
of exception set out by the Trust depended on the merits-based construction of the
lease agreement. I am not persuaded that the claim was bad on every reasonable
interpretation. The cause of action was not obscure, which is different to whether it
was sustainable on the facts. It is the facts and the interpretation of the lease, that
can help one determine whether the payments by the plaintiff were made sine
causa. It is from the facts that one can determine if the payments were made in
terms of the lease obli gations and whether the Trust was unduly enriched thereby.
Whether the claims would succeed was not a question of an exception. From my
reading of the particulars of claim , the question whether the allegations made, if
accepted as correct, were capable of sustaining a recognized cause of action,
should be answered in the affirmative. The plaintiff has set out the material facts
necessary to sustain its claim. It has set out the contractual framework, the invoices
rendered, the payments made , the impugned payments and the alleged absence of
causa, mistake and enrichment. At best, the Trust has shown that the ir
interpretation of the will was arguable, and not that the plaintiffs claim was bad in
law.
[6] The plaintiff’s case was that the items it listed in an annexure were not, on their
face, plainly encompassed by the provisions of the lease. F or instance, there is the
question as to whether the lease agreement made provision for payments for
electricity availability and water availability separately , which seems to be a
separate claim to address the costs associated with payments to the Municipality. It
must be remembered that the Municipality has a duty to provide services that
amongst others must be equitable and accessible, regularly reviewed with a view to
upgrading, extension and improvement [Section 73(2) of the Local Government
Municipal Systems Act, 2000 (Act No. 32 of 2000) (the Systems Act) ]. Section 74
thereof gives the Munic ipality the power to levy for fe es of municipal services
provided by the Municipality , which monies are used t o meet the Municipality’s
costs to maintain , improve and develop its water and electric ity infrastructure .
From my reading of the papers, the costs for these levies were a separate unit from
electricity or water consumption bills which related to the use of such facility by
the plaintiff. Other such incidental costs include what is called village market fees
and electrical units for a generator. A careful consideration of the annexure of the
disputed payments leaves the impression that it is these incidental costs to direct
consumption costs, which the plaintiff seems to sug gest that they may have been
freebies. Some of these costs, it seems, were not measured or measurable, like a
water and electricity meter would. The other costs, for instance included vegetables
supplied.
[7] Whether all or some of the charges fell out of the lease altogether depended
upon the factual context, the evidence and the proper interpretation of the clauses .
This question needed an enquiry and not an exception, to answer. The Trust has
one interpretation which t hey advance in the exception , and the plaintiff has its
own interpretation which is set out in its particulars of claim . It was impermissible
for the trust to enforce its own interpretation as the only permissible interpretation
through the exception process. The validity of the charges was a factual and
interpretive issue for trial in this matter. The Trust in the second exception
especially sought to supplement the particulars of claim by introducing its own
factual version, for instance its assertion as to what the plaintiff would, should or
must have realized, which allegations do not appear in the pleadings. A court
cannot decide factual questions and draw inferences against a party at pleading
stage. On the third excepti on, if the Trust sought to ward off the claim on the
grounds that the payments were for services and amenities used by the plaintiff and
the Trust was not enriched , it is a pleading point and a substantive defence on the
merits. That factual assertion was not pleaded by the plaintiff . The nature of the
charges in the annexure, how they arose , what the parties understood and whether
they were properly recoverable under the lease are matters for evidence. In my
view the particulars of claim, read with the annexures, plainly disclose a
recognizable cause of action. Whether the claim will succeed is not a question for
this court now. For these reasons I am making the order.
______________________________
DM THULARE
JUDGE OF THE HIGH COURT