IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
DELETE WHICHEVER IS NOT APPLICABLE
1. REPORTABLE : YES/ NO
2. OF INTEREST TO OTHER JUDGES: YES/NO
In the matter between :
SAFRICAN INSURANCE COMPANY LIMITED
and
TSHIANEO HOLDINGS (PTY) LTD
TSHIFIWA CASSIUS MUHANGANEI
Case No: 2023-·123197
Plaintiff
First Defendan1
Second Defendant
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JUDGMENT
Introduction
[1] This matter concerns two related procedural questions. The first is whether the
defendants' exception to the plaintiff's original particulars of claim falls to be
upheld~on·the basis that the pleading lacks averments necessary to sustain a
cause of action. The second is whether the plaintiff's purported amended
particulars of claim, delivered after the exception and after the defendants'
notice in terms of rule 30, constitute an irregular step.
[2] The plaintiff is Safrican Insurance Company Limited. The first defendant is
Tshianeo Holdings (Pty) Ltd. The second defendant is Mr Tshifhiwa Cassius
Muhanganei, a director of the first defendant.
[3] The facts pleaded in the original particulars may be shortly stated. The plaintiff
is a long-term insurer and financial services provider. Dibanani Holdings (Pty)
Ltd ("Oibanani") was, on the plaintiff's version, onboarded by the plaintiff in
September 2011, at a stage when Dibanani did not yet hold an FSP licence.
Dibanani thereafter appointed the first defendant as its broker. The plaintiff's
pleading alleged that the first defendant was to be paid commission of 10 per
cent on funeral premiums received by the plaintiff.
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[4] On 30 March 2023 Dibanani addressed a letter to the first defendant cancelling
its appointment as broker with effect from 30 June 2023. On 4 July 2023
Dibanani informed the plaintiff that it had appointed MA-SAPU Financial
Services (Pty) Ltd as its broker in place of the first defendant with effect from 1
July 2023.
[5] . . The plaintiff then pleaded that, due to a technical error in its accounting
department, an amount of R816 164.88 was paid on 4 August 2023 to the first
defendant instead of to Dibanani. The broker commission statement annexed
tc, the particulars reflected that amount against the Dibanani scheme, while an
amount of R4 305.28 was reflected as commission payable in respect of the
firnt defendant's own business. The plaintiff further alleged that the first
cl~fendant was informed of the error on 11 August 2023; .that the second
defendant undertook in a virtual meeting to refund 80 per cent of the amount;
and that, despite demand, the defendants failed to repay the sum of R816
164.88.
[6] The original particulars were divided into "Claim A" and "Claim B". Claim A relied
on the erroneous payment and the alleged undertaking to refund. Claim B was
framed as a claim arising from the erroneous payment and the receipt by the
first defendant of money "not due to it". No express label was attached to the
.claim;-but the heads of argument on both sides tre,ated it as an enrichment
claim, more specifically a claim akin to the condictio indepfti.
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[7] The defendants excepted. The grounds were that the original particulars did not
contain averments necessary to sustain a cause of action; that the plaintiff had
not properly pleaded the requirements of unjustified enrichment or the condictio
indebiti; that no case had been made out against the second defendant; and
that the pleading did not disclose the legal basis on which the defendants were
said to be liable.
[8] After receipt of the exception, the plaintiff delivered a notice of intention to
amend in terms of rule 28(1). The defendants ·then delivered a notice in terms
of rule 30 calling upon the plaintiff to withdraw that notice on the basis that it
constituted an irregular step. Notwithstanding that notice, the plaintiff thereafter
filed amended particulars of claim and purported to do so in terms of rule 28(5).
The Exception
[9] It is convenient to deal first with the exception to the original particulars.
[1 O] The principles governing exceptions are settled. An exception is a useful
mechanism to dispose of bad claims or bad defences where the point appears
ex facie the pleading. In Telematrix (Pty) Ltd t/a Matrix Vehicle Tracking v
Advertising Standards Authority SA 1 the Supreme Court of Appeal
1 2006 (1) SA 461 (SCA)
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reaffirmed that exceptions serve the valuable function of weeding out cases
without legal merit. But that function must be exercised with care. The excipient
must show that upon every reasonable interpretation the pleading can bear, no
cause of action is disclosed.
[11] It is equally trite that a plaintiff is not required to plead evidence. What must be
pleaded are the material facts necessary to sustain the cause of action. That
much has been settled since McKenzie v Farmers' Co-operative Meat
Industries Ltd2. And, as was emphasis~d in National Director of Public
Prosecutions v Phillips and Others3, pleadings must be lucid, logical and
intelligible, so as to alert the other party to the case it has to meet.
[12] In the present matter the plaintiff submitted in its heads that it was unnecessary
to identify a specific condictio. There is force in the general proposition. In First
National Bank of Southern Africa Ltd v Perry NO and Others4 Schutz JA
observed that courts often spend too much time debating the proper historical
label and too little time focusing on the substantive requirements of enrichment
liability. In Kudu Granite Operations (Pty) Ltd v Caterna Ltd5 the Supreme
Court of Appeal recognised that the development of our law has progressed to
the point where the old condictiones need not always be the exclusive starting
2 1922 AD 16
3 2002 (4) SA 60 (W)
4 2001 (3) SA 960 (SCA)
5 2003 (5) SA 193 (SCA)
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point. But none of that relieves a pleader of the obligation to allege the material
facts that sustain the chosen claim.
[13] Read benevolently and as a whole, the original particulars fail in three respects.
[14] First , claim A does not disclose a coherent independent cause of action. The
pleading alleged that the first defendant was informed of the erroneous
payment and that the second defendant undertook to refund 80 per cent of the
amount. But the particulars went no further. They did not plead whether this
was said to constitute an enforceable agreement, a compromise, an
acknowledgment of debt, or some other juristic basis for liability. They did not
plead the material terms of such agreement, the authority on which the second
defendant acted, why the undertaking of 80 per cent translated into liability for
the whole amount, or why both defendants were said to be jointly liable. On any
reading, claim A lacked averments necessary to sustain a separate cause of
action.
[15) Secondly , insofar as claim B was intended to be an enrichment claim, the
original particulars did not adequately plead the plaintiff's own impoverishment
and the nexus between its impoverishment and the first defendant's
enrichment. Paragraph 20 of the original particulars alleged that the error was
made "at the expense of the plaintiff and Dibanani" and that the money ought
to have been paid to Dibanani, who. remained without its commission. That
allegation did not clarify the juridical basis on which the plaintiff itself claimed
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restitution. If the money was due to Dibanani, the plaintiff was required to plead
with clarity why it - and not Dibanani - was the impoverished party entitled to
reclaim the payment. That was not done.
(16] Thirdly , the original particulars did not plead the essential facts necessary for
a claim in the nature of the condictio indebiti. In Legator McKenna Inc v Shea6
the Supreme Court of Appeal restated that the condictio indebiti requires, at
least, allegations that the payment was made in the bona fide and reasonable
but mistaken belief that it was owing, and that it was made sine causa or
indebite, there being no legal obligation to make it. More recently, in Mhlari NO
and Others v Nedbank Limited7, the Supreme Court of Appeal reaffirmed that
a person who pays money because of a reasonable error of fact or law in the
belief that it is owing, whereas it is not, has a claim for repayment to the extent
of the recipient's enrichment.
[17] The original particulars alleged a "technical error" and asserted that the amount
was "erroneously" paid. But they did not allege that the payment was made in
the bona fide and reasonable belief that it was due to the first defendant. Nor
did they plead facts from which the reasonableness of the error could be
assessed. In the setting of a pleaded commercial relationship, and where the
annexed commission statement reflected a substantial amount under the
Dibanani scheme, that omission was material. It is not enough merely to say
6 2010 (1) SA 35 (SCA)
7 (251/2023) [2024] ZASCA 39 (4 April 2024)
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that a payment was erroneous. The pleader must allege the facts that make the
payment legally recoverable.
(18] There is a further difficulty. The original particulars did not disclose a cause of
action against the second defendant at all. The payment was alleged to have
been made to the first defendant. The enrichment, if any, was that of the first
defendant. The second defendant was cited merely as a director. No basis was
pleaded for piercing the corporate veil, no personal enrichment was alleged,
and no properly formulated contractual basis for his personal liability was
pleaded. That defect was fatal to the claim against him.
[19) For these reasons the original particulars lacked averments necessary to
sustain a cause of action. The exception to them must therefore succeed.
(20] That is not, however, the end of the matter. The defendants sought dismissal of
the plaintiff's claim. That relief is too drastic. The ordinary course, when an
exception is upheld on the basis that the pleading is defective, is to afford the
pleader an opportunity to amend. The Supreme Court of Appeal in Rowe v
Rowe8 made plain that dismissal without leave is exceptional. A departure from
that course is usually justified only where amendment would plainly be futile.
This is not such a case. The defects are serious, but not necessarily incapable
of cure. It is my considered view that the proper order is to uphold the exception,
8 1997 (4) SA 160 (SCA}
8
set aside the original particulars of claim, and grant leave to amend within a
limited period.
The legal status of the amended particulars of claim
[21] I turn then to the plaintiff's purported amended particulars.
[22] Rule 28 establishes a simple sequence. A party wishing to amend delivers a
notice of intention to amend. The opposing party may object within ten days,
stating the grounds of objection. If no objection is delivered, the amendment
may be effected. If objection is delivered, the party wishing to amend may not
simply proceed; it must apply to court for leave to amend.
[23] In this matter the plaintiff delivered a notice in terms of rule 28(1) on 9 April
2024. On 10 April 2024 the defendants delivered a written notice in terms of
rule 30. Whatever its label, the substance of that notice was unmistakable: it
objected to the proposed amendment, set out the grounds of objection, and
called upon the plaintiff not to proceed. In motion practice and pleadings alike,
substance prevails over form.
[24] Once that objection had been delivered, the plaintiff was not entitled to invoke
rule 28(5). The procedural consequence of the objection was that the plaintiff,
if so advised, had to.apply under rule 28(4) for leave to amend. It did not do so.
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Instead, on 30 April 2024, it filed amended particulars as though no objection
had been lodged.
[25] That step was irregular. It was contrary to the structure of rule 28 itself. Whether
the defendants were correct in contending that a pending exception entirely
barred an amendment without leave need not be finally decided. The narrower
and sufficient ground is that, after objection had been raised, the plaintiff could
not-bypass rule 28(4) and file amended pages under rule-28(5). The amended
particulars were therefore not properly before the court.
[26] The plaintiff's heads contended that a litigant may amend at any time before
judgment. That proposition is too broadly stated. The power to amend is
generous, but it is not free-floating; it must be exercised in accordance with the
rules. A litigant cannot convert a contested amendment into an uncontested one
by ignoring an objection and filing the amended pleading nonetheless.
[27] The defendants were accordingly entitled to complain that the amended
particulars constituted an irregular step. The appropriate order is to set aside
the purported amendment.
Costs
[28] As to costs, the defendants have been substantially successful on both the
exception and the irregular-step point. There is, however, no sufficient basis for
' . . ·' ·' ' ,,:,
a punitive order. Ordinary costs will follow the result.
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Order
(29] The following order is made:
1. The defendants ' exception to the plaintiff's original particulars of claim dated 23
November 2023 is upheld.
2. The plaintiff's purported amended particulars of claim delivered on 30April 2024
are declared an irregular step and are set aside.
3. The plaintiff is granted leave to deliver amended particulars of claim within 15
court days of this order.
4. The plaintiff shall pay the costs of the exception and the costs occasioned by
the irregular-step proceedings, including the costs of counsel on Scale B where
so employed.
JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
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APPEARANCES:
For the Applicant:
Instructed by: Ntombi Dude Attorneys Incorporated
Advocate for the Applicant: Adv N Lebona
For the Respondents:
Instructed by: Maponya K Attorneys
Advocate for the Defendants: Adv W Maodi
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