IN THE HIGH COURT OF SOUTH AFRICA
MPUMALANGA DIVISION , MIDDELBURG (LOCAL SEAT)
CASE NO: 119212024
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
11/06/2025
SIGNATURE DATE
In the matter between:
CIRCLE FITMENT CENTRE CC PLAINTIFF
And
SIBANYE GOLD EASTERN OPERATIONS (PTY) LTD DEFENDANT
Delivered: This judgment was handed down electronically by circulation to the parties '
legal representatives by email. The date and time for hand-down is deemed to be at
10:00 on 11 June 2026.
JUDGMENT
Phahlamohlaka J
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Introduction
[1] This is an exception application brought by the defendant against the plaintiff’s
amended particulars of claim . The basis of the defendant’s exception is that the
plaintiff’s particulars of claim lack averments necessary to sustain a cause of action in
terms of the contract, or otherwise.
[2] The defendant takes issue with the portion based on unjust enrichment for
services and goods rendered without valid purchase orders, in the amount of
R766 207.09.
Summary of the Facts
[3] The parties entered into a written contract on 13 December 2021 for tyre
maintenance and supply at Burnstone. Clause 6.2 of the contract required that no work
would be enforceable unless a valid purchase order was issued by the defendant.
[4] The plaintiff rendered services and supplied goods, invoicing the defendant for
two portions , namely, Portion A for R689 048.18 (with valid purchase orders,
acknowledged by the defendant) , and Portion B for R766 207.09 (without valid
purchase orders).
[5] The defendant paid or tendered payment for Portion A but refused payment for
Portion B, leading to the present dispute.
[6] The plaintiff amended its claim for Portion B to rely solely on unjust enrichment,
alleging a bona fide and reasonable belief that purchase orders had been issued. The
defendant excepted to this claim, arguing that the contract precludes any claim for
enrichment in these circumstances.
Issues
[7] This Court must therefore determine whether the plaintiff’s particulars of claim
for unjust enrichment (Portion B) disclose a cause of action in law, secondly, whether
clause 6.2 of the contract excludes the possibility of an enrichment claim for services
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rendered without a purchase order and lastly, whether the plaintiff’s belief regarding
the existence of purchase orders is sufficient to found a claim for unjust enrichment.
The Legal Position
[8] The requirements for an unjust enrichment claim (condictio indebiti) are that the
defendant must be enriched , and that t he plaintiff must be impoverished. The
enrichment must therefore be at the expense of the plaintiff , and it must be without
legal cause.
[9] The law regarding contracts is settled . W here a valid contract governs the
relationship, enrichment claims are generally excluded unless the contract is void,
cancelled, or does not cover the situation.1
[10] A party who acts in the mistaken belief that payment or delivery is due may
claim restitution if the mistake is excusable . The legal remedy of condictio indebiti is
therefore available to such a party. However, gross negligence or culpable mistake
bars recovery.
Evaluation
[11] The defendant’s exception is based on clause 6.2, which requires a valid
purchase order for enforceability and expressly excludes liability for work done without
such an order. The defendant argues, with reference to BK Tooling (Edms) Bpk v
Scope Precision Engineering (Edms) Bpk ,2 that the existence of a valid contract
precludes an enrichment claim, as the contract regulates the parties’ rights and
obligations.
[12] The plaintiff contends that the particulars of claim meet the requirements for an
enrichment claim, as they allege enrichment, impoverishment, and lack of legal cause
due to the absence of purchase orders.
1 BK Tooling (Edms) Bpk v Scope Precision Engineering (Edms) Bpk 1979 (1) SA 391 (A).
2 Ibid.
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[13] The plaintiff further argues that the exception procedure is not the forum to
determine the merits of the enrichment claim, but only whether the pleadings are
excipiable.
[14] In Mhlari N.O and Others v Nedbank Limited,3 the court stated as follows:
“A person who pays money (or delivers a thing) to another because of a reasonable
error of fact or law in the belief that the money is owing, whereas it is not, has a claim
for repayment in terms of the condictio indebiti , to the extent that the person who
receives the payment has been enriched at his or her expense. The conditio 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. Therefore, a defendant may raise as a defence to
the condictio indebiti that the mistake was unreasonable and negligent, but in a claim
based on the conditio sine causa specialis that consideration is irrelevant.”
[15] The defendant’s heads of argument emphasise that the contract’s clause 6.2 is
a complete bar to any enrichment claim, as it was specifically designed to prevent
liability for work done without a purchase order.
[16] The plaintiff’s heads of argument maintain that clause 6.2 may be a defence on
the merits but does not render the particulars of claim excipiable at the pleading stage.
Conclusion
[17] Having considered the pleadings, the contract, and the arguments , it is my
considered view that the plaintiff’s particulars of claim for unjust enrichment allege all
the essential elements required for such a claim.
[18] Clause 6.2 of the contract may ultimately provide a substantive defence to the
enrichment claim, but does not, at the exception stage, render the particulars of claim
excipiable.
3 Mhlari N.O and Others v Nedbank Limited [2024] ZASCA 39 para 18.
[19] The exception, therefore, falls to be dismissed.
Order
[20] In the result, I make the following order:
1. The defendant's exception to paragraphs 8 to 11 of the plaintiff's amended
particulars of claim is dismissed.
2. The defendant is ordered to pay the costs of the exception.
K F PHAHLAMOHLAKA
JUDGE OF THE HIGH COURT
MPUMALANGA DIVISION, MIDDELBURG
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Appearances
For the applicant: Adv Du Plessis
Instructed by: Du Plessis Mundt Attorneys
For the respondent: Adv West
Instructed by: Chris Liebenberg Attorneys
Date judgment reserved: 20 February 2026