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[2011] ZAWCHC 5
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M.J.N v A.J.J (A653/2009) [2011] ZAWCHC 5; 2013 (3) SA 26 (WCC) (17 February 2011)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
NO: A653/2009
In
the matter between:
M
J N
...........................................................................................................................................
Appellant
and
A
J J
.........................................................................................................................................
Respondent
JUDGE
P.A.L. GAMBLE
FOR
THE APPELLANT Adv. W.P. Coetzee
INSTRUCTED
BY Coetzee's Prokureurs
FOR
THE RESPONDENT Adv. H.G. McLachlan
INSTRUCTED
BY Lombard & Kriek Prokureurs
DATES
OF HEARINGS 20 August 2010
DATE
OF JUDGMENT 17 February 2011
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
WESTERN
CAPE HIGH COURT, CAPE TOWN
CASE
NO: A653/2009
In
the matter between
M
J N
...................................................................................................................
Appellant
and
A
J J
...................................................................................................................
Respondent
JUDGMENT
: 17 FEBRUARY 2011
GAMBLE,
J:
INTRODUCTION
[1]
This is an appeal from the Magistrates Court. The Appellant (the
Defendant in the court a
quo)
and
the Respondent (the Plaintiff a
quo)
were
married to each other on 25 February 1989. Their union bore a
daughter, N, who was born in June 1990. For the sake of convenience
I
shall refer to the parties as in the court a
quo.
[2]
On
3 February 1995 the parties were divorced by order of this Court and
pursuant thereto the Plaintiff was directed to maintain
N by
effecting payment of the sum of R350,00 per month and to retain her
on his medical aid fund.
[3]
It was common cause that during the period February 1995 to June 2006
the Plaintiff paid to the Defendant the sum of R50050,00
in respect
of maintenance for
N.
The said sum included payment of an amount of R1000,00 to the
Edgemead Primary School in January 2000.
[4]
In June 2006 N underwent a paternity test which showed conclusively
that the Plaintiff was not her natural father.
[5]
On 30 July 2007, pursuant to an application brought by the Plaintiff,
this Court issued an order declaring that he was not the
natural
father of N and.
inter
alia,
varying
the divorce order in terms of
Section 8
of the
Divorce Act, 70 of
1979
, by the deletion of the Plaintiff's maintenance obligations
towards N.
[6]
At the same time the Plaintiff instituted action in the Magistrate s
Court for recovery of the sum of R50050.00 His claim was
upheld and
the Defendant now appeals against the order of the magistrate.
THE
CLAIM AS PLEADED
[7]
In the court a
quo
the
Plaintiff's cause of action was pleaded as follows:
"9.
Plaintiff
paid the maintenance in the bona fide and reasonable belief that he
was N's natural father and as such legally obligated
to maintain her.
10.
In the premise, Defendant is liable to compensate Plaintiff for the
maintenance paid in respect of N.
11.
Despite due demand. Defendant refuses to pay the amount claimed or
any pan thereof."
[8]
The Defendant's plea was crisp and to the point. She stated that she
had no knowledge of the allegations made in paragraph 9
and put the
Plaintiff to the proof thereof. Paragraph 10 was denied. Paragraph 11
was admitted.
[9]
At the trial only the Plaintiff gave evidence. Very little of what he
said was material to the issues before that court and
not much of his
evidence was in any event challenged.
[10]
What is important, however, is that at the commencement of the case
counsel for the Plaintiff (who also appeared before us)
delivered a
short opening address in which he made it clear that the claim was
predicated on the
condictio
indebiti.
He
went on to say that -
'dan
wat blyk in dispuut te wees of waarvan die verweerderes vir die
verrigtinge vandag bewys verlang, is die feit dat die eiser
die
onderhoud betaal net in die bona fide en .. Jonduidelik) geloof dat
dit inderdaad betaal
was
..."
[11]
The word marked "onduidelik" was probably "redelikeV
The word "betaal" at the end of the passage was
probably
meant to read "betaalbaar".
[12]
It will be noted that no allegation was made in the particulars of
claim that the Defendant was enriched by the Plaintiffs
payments.
Further, the Plaintiff did not plead that the payment was made
wrongfully or without just cause.
THE
JUDGMENT OF THE COURT
A
QUO
[13]
The Magistrate's finding was far reaching. He approached the matter
on the basis of the
condictio
indebiti and
accepted
the argument advanced by the Plaintiff that the parties had laboured
under a mutual error. He found that the maintenance
order granted by
this Court as part of the divorce order was void
ab
initio
because
it was founded on mutual error. Accordingly, so the magistrate held,
the order and the underlying consent of the Plaintiff
did not found
a valid
causa
upon
which the Defendant could rely.
[14]
According to the Plaintiff he did not oppose the divorce action
because he did not object to the relief which his erstwhile
wife was
claiming therein. The divorce was accordingly not settled by the
conclusion of a consent paper and there can therefore
be no question
of any "mutual error'" arising in a contractual setting.
Rather, the position is that the Plaintiff
is taken to have
consented to the Defendants claims. Furthermore, the magistrates
finding of voidness in regard to the maintenance
order is beyond the
jurisdiction of that court. In the circumstances the reasoning of
the court a
quo
is
fundamentally flawed and warrants intervention on appeal.
ELEMENTS
OF UNJUSTIFIED ENRICHMENT
[15]
In a detailed and most elucidating judgment in
McCarthy
Retail Ltd v Short Distance Carriers CC
1
,
Schutz JA revisited the jurisprudence underlying unjustified
enrichment in our law. More recently
Professor
Daniel Visser
has
published his magnum opus entitled "Unjustified Enrichmenr
2
.
which will now take its place alongside (and will no doubt very soon
challenge) the seminal work on the topic,
"Verrykingsaanspreeklikheid"
by
Professor
Wouter De Vos
.
[16]
Professor
Visser
makes
ample reference to
McCarthy
Retail
in
his book and concurs with the prophecy of Schutz JA that a
pronouncement by the Supreme Court of Appeal regarding a general
enrichment action is not far off. Despite delivery of a number of
judgments on the law of enrichment by that court since
Mc
Carthy Retail.
3
no
epiphany has emerged. We must therefore approach this matter on the
basis of our law as it currently stands and since the Plaintiff
presented the claim on the basis of the
condictio
indebiti
it
is that form of enrichment action which we are bound to consider
[17]
In
McCarthy
Retail
,
the court accepted the four general requirements for an enrichment
action suggested by
Professor
Lotz
in
Volume 9 of
LAWSA
-
the first reissue of the first edition then having been current
Since then the second edition of that volume of LAWSA has
emerged
and the learned author has been able to bolster his views with the
definitive authority of the Supreme Court of Appeal
in
Mc
Carthv Retail.
Those
requirements are:
(i)
The
Defendant must be enriched;
(ii)
The
Plaintiff must be impoverished;
(iii)
The
Defendant's enrichment must be at the expense of the Plaintiff:
and
(iv)
The enrichment must be unjustified
{sine
causa).
4
THE
CASE AS PLEADED IN THE COURT
A
QUO
[18]
It will be seen from the extract of the pleadings which t have
recited above that the Plaintiff failed to make any allegations
in
his particulars of claim of enrichment on the part of the Defendant
or impoverishment on his side. The pleading therefore
lacks the most
basic averments suggested by
Harms
in
Amler's Precedents of Pleadings.
5
[19]
The purpose of pleadings seems to have escaped both sides in this
matter. While the law in regard to pleading is trite, it
is perhaps
necessary to refer thereto as a reminder of the importance thereof.
[20]
In
Imprefed
(Ptv) Ltd v The National Transport Commission
6
the
Court said the following:
''At
the outset it need hardly be stressed that::
The
whole purpose of pleadings is to bring clearly to the notice of the
Court and the parties to an action, the issues upon which
reliance
is to be placed.' (
Durbach
v Fairway Hotel Ltd
1949
(3) SA 1081
(SR) at 1082)
This
fundamental principle is similarly stressed in
Odaers'
Principles of Pleading and Practice in Civil Actions
in
the High Court of Justice 22"" ed at 113:
'The
object of pleading is to ascertain definitely what is the question
at issue between the parties: and this object can only
be attained
when each party states its case with precision.'"
[21]
In
Robinson v Randfontein Estates G.M Ltd
7
Innes
CJ put it thus:
"The
object of pleading is to define the issues; and parties will be kept
strictly to their pleas where any departure would
cause prejudice or
would prevent full enquiry. But within those limits the Court has a
wide discretion. For pleadings are made
for the Court, not the Court
for the pleadings. And where a party has had every facility to place
all the facts before the trial
Court and the investigation into all
the circumstances has been as thorough and as patient as in this
instance, there is no justification
for interference by an appellate
tribunal, merely because the pleading of the opponent has not been
as explicit as it might have
been.'
[22]
In
Benson
and Simpson v Robinson
8
.
Wesseis J reminded litigating parties of what was expected of them
in drawing their pleadings
The
plaintiff must not set out the evidence upon which he relies, but he
must state clearly and concisely on what facts he basis
his claim
and he must do so with such exactness that the defendant will know
the nature of the facts which are to be proved against
him so that
he may adequately meet them in court and tender evidence to disprove
the plaintiff's allegations "
[23]
The approach to pleadings is well summarised in
Beck's
Theory and Principles of Pleading in Civil Actions (6
th
ed)
9
"The
fundamental principles which govern all pleadings can be summarised
as follows:
Pleadings
must be brief and concise and couched in summary form. They should
be as brief as the nature of the case will permit
and all prolixity
must be avoided...
Pleadings
should state facts and facts only.. That is to say they should not
contain statements of either law or the evidence
required to
establish the facts. Only material facts - and no others - need be
alleged in any pleading ...
When
in any pleading a party denies an allegation of fact in the previous
pleading of the opposite party, he or she shall not
do so evasively
but shall answer the point of substance.
As
regards (b) above, it is hardly necessary to enlarge upon the
proposition that a pleading must contain facts and not law The
pleading of a legal proposition itself is no pleading at all. But
the rule means more than that, it implies that the facts must
be set
out and it is for the court to say on a consideration of the facts
proved in evidence whether they will or will not support
a
particular conclusion in law. Thus a bare allegation that a
defendant is indebted to the plaintiff in a sum certain in money,
or
that he is under an obligation to perform certain acts is not
sufficient The facts must be set out which reveal the nature
of the
transaction and the manner in which the defendant became indebted to
the plaintiff or under an obligation to him to perform
the duty
claimed. The mere statement of indebtedness is a conclusion to be
drawn from the facts, and it is a conclusion of law...
Unless
the facts are set out the opposite party cannot accurately know what
case he will be called upon to meet for more conclusions
than one
can be derived from various sets of facts. Thus a claim for a sum
certain in money may inter alia arise out of a loan,
or for wages or
salary due. or under contract or for special damages arising from
delict..."
[24]
While pleadings must be drafted carefully a court should not read
them pedantically nor should it over-emphasize precise
formalistic
requirements: the substance of the allegations should be properly
considered
10
.
[25]
Where a pleading lacks the necessary allegations to substantiate the
claim or the defence (as the case may be), the opposing
party can of
course give consideration to noting an exception. In terms of Rule
17(5)(c) of the Magistrates Court Rules a defendant
who wishes to
raise an exception must first give the plaintiff notice and an
opportunity to remove the cause of complaint Further,
the magistrate
shall not uphold an exception to the particulars of claim unless it
is satisfied that the defendant would be prejudiced
in the conduct
of his/her defence if the summons were to be permitted to stand
11
.
[26]
As I have already stated, the Plaintiffs particulars of claim lacked
certain material allegations. Not only was there no
mention of any
enrichment on the part of the Defendant at the expense of the
Plaintiff, there was no allegation either that the
payments by the
Plaintiff to the Defendant were made without just cause (i.e.
sine
causa)
and
were therefore unjustified.
[27]
Notwithstanding this the Defendant elected not to note an exception
but seems rather to have sat back somewhat smugly waiting
to see
whether the Plaintiff would lead any evidence on these points. When
the Plaintiff duly failed to do so she argued that
his case was
fatally defective on the basis that the pleadings failed to make any
such allegation.
[28]
Neither parties sought further particulars from the other in terms
of Magistrate's Rules 15 and 16. But, whatever the pre-trial
proceedings and posturingmay have elicited, there could have been no
doubt on the part of the Defendant at the commencement of
the trial
what the Plaintiffs cause of action was. In his opening address
counsel for the Plaintiff, in addition to that which
I have set out
above, told the Court what the legal basis for his clients case was:
"Mnr.
McLachlin
(sc):
Edetagbare, u sal merk uit die Besonderhede van Vordering dat eiser
se aanspraak teen verweerderes gefundeer word op die
condictio
indebiti."
[29]
Although offered an opportunity at the commencement of the
plaintiffs case to address the Court more fully on the particularity
of the Defendant's defence, counsel for the Defendant declined to do
so.
[30]
In argument before us counsel for the defendant readily accepted
that the
condictio
indebiti
was
an appropriate cause of action for the factual scenario before the
trial court. His complaint however was that the Plaintiff
had not
properly pleaded that cause of action and that the Defendant was
therefore entitled to a dismissal of the claim against
her. Counsel
relied heavily on the judgment of Howie J (as he then was) in
Van
Zvl v Serfontein
12
in
support of this stance. That case therefore requires some scrutiny.
[31]
Van
Zyl's
case
involved a claim by the mother of an illegitimate child (a daughter)
against the sole heir (a son) in the estate of the late
natural
father of the illegitimate child. The son was the deceased's lawful
issue. Although the deceased had maintained the daughter
during his
life time, the mother's claim against thedeceased's estate was
rejected by the executor on the basis that there was
no proof of
paternity. He duly wound up the estate and effected payment to the
son of the residue.
[32]
The mother did not object to the liquidation and distribution
account but instituted action against the son on the basis
that he
was legally bound to maintain the daughter. The trial court found
that the son was not obliged to maintain the illegitimate
daughter
and held that the only possible cause of action was the
condictio
indebiti.
Because
the mother had failed to establish the quantum of the alleged
overpayment to the son the court granted absolution.
[33]
On appeal to the Full Bench the mother argued that a claim had
always been based on the
condictio
indebiti,
that
the son had not raised any defence thereto, that it was competent in
law to recover maintenance payments under the
condictio
indebiti
and,
finally, that there was in any event insufficient proof of the
quantum.
[34]
The son argued that the claim had never been brought under the
condictio
indebiti,
that
he had never been called upon to meet such a claim and that the only
basis upon which he had been brought before the court
was to answer
a claim for maintenance.
[35]
Howie J analysed the pleadings, the submissions of counsel and the
evidence before the trial court and came to the conclusion
that the
only cause of action upon which the mother could rely against the
son was the
condictio
indebiti.
The
claim had not been brought on that basis and the defendant had not
been in a position to
set
up a defence thereto. Further, the learned judge held that there was
not sufficient evidence before the Full Bench to permit
the matter
to be reconsidered on appeal.
[36]
Against that factual background His Lordship held as follows:
13
"...moet
dear in die geval van die condictio indebiti in die onderhawige
omstandighede beweer word dat die erfgenaam as gevolg
van 'n
oorbetaling onregverdig verryk is...Die doel van die pleitstukke is
om die geskilpunte te definieer en, onder andere,
n verweerder in
kennis te stel wat die saak is waarteen hy opgeroep word om 'n
verweer te bied. Niks wat op die oorkonde verskyn
of wat aan die Hof
by die aanhoor van die appel voorgedra is oortuig my dat die partye
by die verhoor bedoel net om met die verrykingselement
te handel
nie. of dat hufle inderdaad daarmee gehandel net...
..
.(R)espondent se versuim om nie-venyking te opper [is] geensins
verbasend nie in die afwesigheid van 'n bewering dat hy verryk
is.
Aangesien die bewyslas op n ven/veerder berus om nie-verryking te
bewys. sou dit respondent benadeel indien mens op die huidige
oorkonde sou moet besiuii of hy horn van daardie bewyslas gekwyt het
al dan nie."'
[37]
The pleadings in
Van
Zvl's
case
differed materially from those in the present matter. As I have
noted above, the pleadings
in
casu
contain
some of the customary allegations which a careful pleader would be
expected to make when relying on the
condictio
indebiti
.
However, certain crucial averments were missing.
[38]
If a pleading is bad in law, the answer is to except. If it is vague
and embarrassing, notice to cure may be given or further
particulars
may be requested. One may go even further in this case and say that
if counsel for the Defendant was genuinely taken
by surprise by his
opponents reference to the
condictio
indebiti
in
the opening address, he should have taken the opportunity to say so
at the outset and. further, to have objected to the evidence
if it
did not accord with the pleadings. In my view, what the Defendant
could not do was to sit back, say nothing and then complain
that the
pleading was defective and that she was taken by surprise
[39]
In the circumstances, I am of the view that the Plaintiff's case was
formulated on the basis of the
condictio
indebiti
that
the Defendant was alive thereto and that the Defendant was not
prejudiced by the poor formulation of the Plaintiff's claim.
DID
THE PLAINTIFF ESTABLISH A
PRIMA
FACIE
CASE
?
[40]
In the passage from
Van
Zyl's
case
to which I have referred above, Howie J referred briefly to the onus
which the person allegedly enriched attracts to establish
non-enrichment. This appears to me to refer to an evidential onus
only and that the Plaintiff bears the overall onus throughout.
In a
judgment delivered a couple of months after that in the
Van
Zyl
matter,
the Appellate Division
14
dealt
extensively with vanous aspects of the
condictio
indebiti.
The
matter concerned a claim for the recovery of money allegedly paid to
the fiscus in error of law. The claim was brought under
the
condictio
indebiti
and
in resisting liability, it was argued by the Receiver of Revenue
that the mistake relied upon by the company was a mistake
of fact
rather than a mistake of law
[41]
Delivering the unanimous judgment of the Court, Hefer, JA stressed
that the
condictio
has.
since Roman times, been regarded as an equitable remedy-
"to
prevent one person being unjustifiably enriched at the expense of
another... Bearing in mind that the remedy lies in
respect of the
payment of an
indebitum
(
i.e. a payment, without any underlying civil or natural obligation);
it is dear that, where such a payment is made in error
it matters
not whether the error is one of fact or law: in either case it
remains the payment of an
indebitum
,
and if not repaid, the receiver remains enriched. The nature of the
error thus has no bearing either on the
indebitum
or
on the enrichment."
15
I
shall revert to this aspect shortly.
[42]
Hefer JA then addressed the question of the onus of proof in claims
under the
condictio
as
follows:
“
In
Recsev
v Reiche
1927
AD 554
at 556 it was said that the onus in an action based on the
condictio indebiti 'lies throughout the whole case' on the
plaintiff.
This remark was obviously intended to refer to every
element constituting the plaintiff's cause of action. This includes
the
excusability of the error. As was pointed out in
Mabaso
v Felix
1981
(3) SA 865
(A) at 872 H considerations of policy, practice and
fairness
inter
partes
largely
determine the incidence of the onus in civil cases; and I can
conceive of nothing unfair in, and of no consideration of
policy or
practice militating against, expecting a plaintiff who alleges that
he paid an amount of money in mistake of law, to
prove sufficient
facts to justify a finding that his error is excusable. The rule
otherwise would in a majority of cases require
the defendant to
produce proof of matters of which he has not the slightest knowledge
(Mbaso
v Felix
at
873 D-E)."
[43]
In the circumstances I am of the view that the plaintiff bore the
onus of establishing the existence of all of the elements
of the
enrichment action relied upon and to which I have referred above.
Importantly for this case, this meant that the Plaintiff
had to set
up sufficient facts to justify an excusable error on his part in
effecting payment of the amounts of maintenance to
the Defendant,
that the Defendant had been enriched thereby and that his estate had
been impoverished in the process.
AN
EXCUSABLE ERROR ?
[44]
It was common cause that the parties were married on 25 February
1989 and that N was born on 12 June 1990. Assuming a normal
pregnancy of nine months, this would mean that the Defendant
committed an act of adultery around September/October 1989 during
which the child would have been conceived.
[45]
We know nothing about the circumstances of this dalliance because
there was no evidence put before the magistrate in that
regard. The
Plaintiff testified that he had always believed that he was the
natural father of the girl and that he raised her
as such with the
Defendant until they were divorced in February 1995.
[46]
The Plaintiff further testified that he did not oppose his wife's
claims at divorce because he regarded the marriage as irretrievably
broken down and because he believed that he was obliged to maintain
the child whom he regarded as his daughter.
[47]
After the divorce the Plaintiff maintained N for more than ten
years. He testified that he later became resentful about the
Defendant's persistent claims for maintenance increases and
eventually decided to ask for a paternity test. The
Plaintiff
also testified that he was urged by certain family members to go for
such tests They evidently had reason to suspect
that the Plaintiff
was not the father and eventually he succumbed to their entreaties
[48]
The Plaintiff concluded by saying that the Defendant never confessed
her adultery to him and that his impression was that
she never had
any idea of who the real father of the child was.
[49]
Under cross-examination the Plaintiff accepted that he had defaulted
on his maintenance obligations over the years but said
that he had
then paid up in full from time to time He confirmed that he had paid
the maintenance because he was obliged to do
so in terms of the
divorce order.
[50]
As I said earlier, the Defendant did not testify and so one does not
know the circumstances surrounding her pregnancy. Importantly,
there
is no evidence to suggest that she knew that her adultery had
resulted in the birth of N and that she intentionally withheld
that
information from the Plaintiff. Had that been the case her claim in
the divorce action for maintenance for the child would
have been
fraudulent and would have afforded the Plaintiff a different cause
of action.
[51]
The Plaintiffs legal obligation to pay the maintenance in respect of
N arises directly from an order of this Court and was
accordingly an
obligation he could not avoid. The basis therefor was his assumption
that a child born during the subsistence
of the marriage was
fathered by him. This is in accordance with the rebuttable common
law presumption:
pater
est quern nuptiae demonstrant.
[52]
While it cannot be contended that the Plaintiff laboured under a
mistake of law. the divorce order was underpinned by an
erroneous
factual assumption, (paternity) either by the parties jointly or, at
least, by the Plaintiff. I have demonstrated above
that the Supreme
Court of Appeal has disregarded any notional distinction between
mistakes of law and fact: the focus is essentially
on whether the
payment was made
indebitum
i.e.
without legal ground. In
LAWSA
vol
9
16
Professor
Lotz
stresses
that -
"The
transfer of money or property must have taken place
indebite
in
the widest sense. It means that there must have been no legal or
natural obligation to give it "
[53]
While the parties were still married the Plaintiff maintained the
child as a member of the household, believing that she
was his child
and that he was duty bound to do so. When the Defendant issued the
divorce summons and claimed payment of maintenance
for the child,
the Plaintiff still believed that N was his daughter. As stated, by
not contesting the divorce action, he effectively
consented to the
Defendant's claims, which included claims in compliance with the
provisions of
Section 6
of the
Divorce Act which
preclude the
granting of a decree of divorce until the Court is satisfied that
adequate provision has been made for the care
and maintenance of any
child born of the marriage
[54)
Yet, it was only when the child was about fifteen years old that DNA
tests established conclusively that the Plaintiff was
not her
biological father. Those tests, of course, show that the Plaintiff
had neither a "legal or natural obligation"
to maintain
the
child. In my view there can ultimately be little doubt that there
was an error of fact on the part of the Plaintiff which
rendered
payment of the maintenance
indebite.
[55]
However, that is not all that the Plaintiff must establish to
succeed with the
condictio
indebiti.
He
must further show that his error in paying the maintenance was
reasonable. In
Bowman,
De Wet and Du Ptessis NNO v Fidelity Bank Ltd
17
Harms
JA put it thus:
"it
is a general requirement for the
condictio
indebiti
that
the error that gives rise to the payment must not have been an
inexcusable error, that is inexcusable in the circumstances
of the
case ('
Willis
Faber
at
223H-224H) There have been many attempts to lay down rules or
formulations in this regard in order to circumscribe what is
excusable and what is not (see, for example. McEwan J in
Barclays
Bank International Ltd v African Diamond Exporters (Ptv) Ltd
1977
(1) SA 293
(W) at 305). Since one is concerned with the exercise of
a
value
judgment, it seems inappropriate to refine the test of whether
judicial exculpation is justified (cf.
GlUck
vol
13 paras 827 and 834)"
[56]
Prof
Visser
18
is
of the view that -
"the
fact that excusability of error must be positively established by
the Plaintiff places it at odds with the modem trend
in alt the
jurisdictions that have influenced the South African law of
unjustified enrichments in the past"
He
calls in support of this stance,
inter
alia.
Prof
de Vos
in
"Verrykingsaanspreeklikheid
r
and
Prof
Lotz
in
LAWSA
,
op ctt. Be that all as it may. the
dictum
of
Harms JA in the
Bowman
case
supra
remains
binding authority from which this Court may not digress.
[57]
As Harms JA notes in the passage cited in paragraph 55 above, the
Court is required to exercise a value judgment when considering
the
excusability of the error In so doing it is open to the Court to
consider
inter
alia
the
Plaintiff's state of mind, whether he thought that he owed the money
and any indifference on his part.
19
[58]
In
Vorster's
case
supra,
Smit
JP
20
quotes
the following passage from
Section 3690
of
Wessels
.
Law of Contract:
"...the
essential question for the court to decide is whether the plaintiff
thought that he owed the money and whether he
paid it in error. The
negligence of the payer ought not to be considered as a ground for
allowing the receiver to enrich himself
at the payers expense. The
fact that the payer was careless ought not to preclude him from
recovering back his money, provided
that his carelessness cannot be
construed into an intention that the person who received the money
should have it in any event,
whether it was really due or not. If
the payer had the means of knowledge and carefully refused to avail
himself of the means
he possessed to determine the true facts, his
ianorantia
supina aut affectata
might
welt be construed either into actual knowledge or into such
indifference as to whether the money was due or not that he
must be
held to have intended the payment whether he owed the money or not."
[59]
In
Willis
Faber
supra
21
Hefer
JA gives some indication of what might constitute an inexcusable
error:
"It
is not possible nor would it be pmdent to define the circumstances
in which an error of law can be said to be excusable
or, conversely,
to supply a compendium of instances where it is not. All that need
be said is that, if the payer's conduct is
so slack that he does not
in the court's view deserve the protection of the law, he should, as
a matter of policy, not receive
it. There can obviously be no rules
of thumb: conduct regarded as inexcusably slack in one case need not
necessarily be so regarded
in others and vice versa Much will depend
on the relationship between the parties; on the conduct of the
Defendant who may or
may not have been aware that there was no
debitum
and
his conduct may or may not have contributed to the Plaintiffs
decision to pay. and on the Plaintiffs state of mind and the
culpability of his ignorance in making the payment."
[60]
Perhaps the Plaintiff was understandably reluctant to confront the
consequences of a test which could ultimately destroy
his
relationship with N, but in my view the following passage from his
evidence before the magistrate demonstrates why the exercise
of the
value judgment implicit in this matter should go against him. I
quote from the Plaintiffs evidence-in-chief:
"Nou
het u op 'n stadium dat (sic) vaderskaptoetse ten opsigte van N
gedoen moet word, is dit korrek? —Ja, dis korrek.
Kan
u kortliks net vir die Hof verduidelik wat het u genoop tot so n
drastiese stap?—Tot daardie punt te kom?
Tot
so 'n drastiese slap?—Okay Edelagbare, ek was elke jaar, het
ek die onderhoud betaal. elke maand en elke jaar wil sy
verhoging
he. verhoging he en toe raak ek agter met die onderhoud Toe bring ek
dit weer op datum en dit. Betaal ek ekstra en
dit en die rumours
deur n famiiielid. my swaer en my neefs en elke jaar word dieselfde
storie gese. hoekom gaan ek nie vir bloedtoetse
nie. Hoekom gaan ek
nie om honderd persent seker te maak en toe het ek die laaste paar
jaar, twee jaar drie jaar terug toe besluit
ek nee, ek gaan nou
finaal gaan ek nou vir bloedtoetse om honderd persent (sic) te maak.
Verstaan
ek u reg en as ons dit net kan opsom. verstaan ek u reg dat wat u
genoop het om te versoek dat bloedtoetse ondergaan
word, was
twecledig
In
die eerste plek het u deurentyd gerugte van familielede
gehoor?—Gerugte ja
Daar
was gepraat dat u me die pa van die kind is nie?—Ja. honderd
persent En in die tweede plek het die verweerderes u van
jaar tot
jaar onderhoudshof toe gebhng—Ja.
Met
'n verhoging?—Verhoging, elke jaar. Van die onderhoud?—
H'm,
En
die situasie het toe sodanige geraak dat u ges§ het u wil nou
sekerheid he?—Ja. toe raak dit nou te erg. Heeltyd
net meer en
meer Sy wil net meer geld
fte,
meer
geld he. Toe besluit ek ek gaan nou finaal nou vir 'n bloedtoets."
[61]
It is apparent from this passage that had the Defendant not sought
an increase in the child's maintenance (which of course
was for the
daughter's benefit) the Plaintiff would probably have honoured his
obligation under the divorce order to maintain
N without demur.
Further, the fact that he took several years to initiate the
paternity test leads one to believe that he was
indifferent as to
whether the maintenance was due or not, and that it can be inferred
that he intended to pay the monthly maintenance
whether he owed it
or not.
[62]
The issue of prescription was not pleaded by the Defendant nor
raised at the trial. If it had been, then the amount which
the
Plaintiff had endeavoured to recover may have been significantly
curtailed and would quite probably have coincided with the
period
during which the Plaintiff began harbouring serious doubt about his
liability, as the passage above shows.
[63]
Having regard then to all the relevant circumstances I am not
persuaded that the Plaintiff established that his mistake was
justified to the extent that it entitles him to "judicial
exculpation
1
"
WAS
THE DEFENDANT ENRICHED?
[64]
In the event that I am wrong on the issue of the reasonableness of
the error. I proceed to deal briefly with the question
of
enrichment. As t noted at the beginning of this judgment, this was
an issue which was not pleaded and which both parties studiously
avoided in evidence Central to this element of the
condictio
indebiti
is
the fact that the payment of monthly maintenance to the Defendant
was for the benefit of N. From this amount the Plaintiff
would have
had to provide accommodation, food, clothing, medical benefits,
education and the like to the child. There was no
suggestion that
the Defendant did not utilize these monies to support the child who
would have been the primary and the ultimate
beneficiary of the
maintenance payments. I have some difficulty in understanding,
therefore, how it can be said that the Defendant
was enriched by
these payments.
[65]
In short, there is no evidence on the record which deals with this
issue. We do not know, for instance, whether the Defendant
was
employed, what her income was, whether she was in receipt of any
child support grant or whether any other family members
assisted
with the maintenance of the child. One or more of these factors may
have assisted one in assessing whether the Defendant
had contributed
more or less than her
pro
rata
share
towards the cost of maintaining N
[66]
In any event, counsel for the Plaintiff contented himself with the
submission that once the Plaintiff had established payment
of the
agreed sum to the Defendant, the latter drew an onus to show that
she had not been enriched thereby. Counsel for the Defendant
on the
other hand, maintained that, since enrichment had not been
pleaded,
it was not necessary for the Defendant to deal with this element of
the claim.
[67]
While it is correct that, generally, proof of an over-payment by a
Plaintiff to a Defendant is
prima
facie
proof
of enrichment and that the Defendant then attracts an onus to show
that she was not enriched, I consider that this cannot
be a hard and
fast rule. As Hefer JA noted in the
Willis
Faber
case,
supra, the incidence of onus in civil litigation is often the
product of considerations of policy, practice and fairness.
[68]
A review of certain of the case law on this point demonstrates that
much turns on the relationship between the parties (i.e.
contractual
or otherwise) and the circumstances under which payment was made to
the Defendant
22
.
In the instant case it is common cause that the payments made to the
Defendant were for the maintenance of the child. In fact,
in one
instance, the Plaintiff made payment of N's school fees directly to
the school - clearly not an act which would have enriched
the
Defendant. The Defendant therefore received these payments as a
conduit for the child on whom the money was spent.
[69]
In such circumstances, I am of the view that the Plaintiff does not
establish a
prima
facie
case
of enrichment by simply proving the payment of money to the
Defendant. To succeed in a claim under the
condictio
endebiti,
the
onus is on the Plaintiff to show that the Defendant's estate has
been enriched to the extent that there has been an increase
in her
assets as a consequence of the payments.
[70]
Where a recipient has expended the monies received, for example, by
remunerating its employees and making payment of statutory
levies
and the like, and retained a small percentage thereof as an
administration fee, it has been said that the recipient's
enrichment
is minimal
23
.
Further, where the recipient has lost or disposed part of that which
it has received, it will only be liable for what remains
in its
hands at the time when the action is instituted
24
.
[71]
There is no doubt that in cases of over-payment of monies the
Defendant attracts an onus to prove either non-enrichment or
a
partial enrichment
25
.
But this case is not about an over-payment. Accordingly, in my view
the approach advocated by Hefer JA in the
Willis
Faber
case
supra
26
and
Brand JA in the
Senwes
case
supra
27
applies.
It was for the Plaintiff to show that the Defendant's estate had
been enriched by the receipt of the monthly maintenance
payments
made in respect of N and. importantly, what the extent of that
enrichment was at the time that the summons was issued
in the
magistrate's court. So, for example, if the Plaintiff could have
established that the Defendant had saved the monthly
maintenance and
held it in a savings account in her name, there may have been an
argument regarding enrichment. But where the
money has been spent on
maintaining a third party whom the recipient is bound to support,
there can be no enrichment.
[72]
As I have shown above, not only did the Plaintiff fail to plead any
enrichment, he also omitted to set up a
prima
facie
case
of enrichment on the part of the Defendant at the commencement of
the action.
[73]
Lest it be suggested that this approach places an unduly burdensome
onus on the Plaintiff, it must be borne in mind that
the Plaintiff
approached the court
a
quo
for
relief under an equitable remedy The approach to such a claim was
summarised more than eighty years ago by Tindall J in
Trahair
v Webb & Co
28
when
he issued the following caution:
'...where
the plaintiff bases his claim for relief on an equitable doctrine
the court must be careful that in a desire to do justice
to the
plaintiff, an injustice is not done to the defendant."
[74]
Given the fact that the money that was paid (albeit begrudgingly and
somewhat irregularly according to the Plaintiff) for
the maintenance
of a child (and there is no suggestion that the Defendant did not
use it for that purpose), it would not be fair
to the Defendant to
now order her to restore either the entire amount or a part thereof
to the Plaintiff.
CONSIDERATIONS
OF PUBLIC POLICY
[75]
Finally, I turn briefly to considerations of public policy. Section
39(2) of the Constitution requires a court to promote
the spirit,
purport and objects of the Bill of Rights when developing the common
law. As many of the cases to which I have referred
above have
demonstrated, the
condictio
indebiti
is
in essence, an equitableremedy.
Prof
Visser
discusses
the cause of action in the context of
"corrective
justice"
as
follows:
"On
one
hand it must be recognised that the fact that enrichment liability
is largely about corrective justice, which normally corrects
an
unjustified gain which is mirrored by an unjustified loss, does not
mean that the mirror loss is an indispensable element.
The fact that
corrective justice presumes
a
correlative
relationship between gain and some form of injustice does not mean
that the injustice should consist of economic loss.
29
[76]
This approach, like the approaches suggested
supra
by.
inter
alia.
Hefer
JA and Tindall J. is self-evidently based on value-laden
considerations. Indeed, the very terms "unjust" or
"unjustified", which are inter-changeably used to describe
the enrichment action, also have considerations of equity
at their
core
[77]
In assessing the extent of any
indebitum
in
an enrichment claim the courts have traditionally looked at factors
such as slackness or unreasonable delay and in that context
as the
judgment of Hefer JA in
Wilbur
Ellis
shows
regard must be had to public policy, too, in formulating such
value-iaden decisions.
[78]
Considerations of public policy must be viewed through the prism of
constitutionalism. In
Barkhuizen
v Napier
30
Ngcobo
J addressed the issue as follows:
"Public
policy represents the legal convictions of the community: it
represents those values that are held most dear by the
society.
Determining the content of public policy was once fraught with
difficulties That is no longer the case Since the advent
of our
constitutional democracy, public policy is now deeply rooted in our
Constitution and the values that underlie it. indeed
the founding
provisions of our Constitution make it plain: our constitutional
democracy is founded on, among other values, the
values of human
dignity, the achievement of equality and the advancement of human
rights and freedoms, and the rule of law. And
the Bill of Rights, as
the Constitution proclaims, is
a
cornerstone'
of that democracy; 'it enshrines the rights of all people in our
country and affirms the democratic [founding] values
of human
dignity, equality and freedom "
[79]
Given the findings which I have made above, it is not necessary to
come to a final decision on this aspect of the case. Suffice
it to
say that courts may in the future be wary of recognising claims in
circumstances such as the present which necessitate
an enquiry into
paternity and which may have the tendency to destroy an otherwise
loving and caring parental relationship with
a child whose rights to
family and parental care are protected under section 28 of the
Constitution.
CONCLUSION
[80]
In my view. then, the court a
quo
erred
in finding that the Plaintiff had established a claim of enrichment.
I am of the view that the appeal should therefore be
upheld with
costs and that the order of the magistrate of the court
a
quo
should
be varied to read:
"The
Plaintiff's claim is dismissed with
costs."
P.A.L.GAMBLE,
J
I
agree.
The
appeal is upheld with costs and the order of the magistrate is
varied to read
"
The
Plaintiff's
claim
is dismissed with costs."
R.
ALLIE, J
1
;
2001
(3) SA 482
(SCA)
2
;
2008 Juta and Co Ltd.
3
See,
for exampte.
ABSA
Bank Ltd v Leech
20Q1
(4
)SA132
iSCAi;
Kudu
Granite Operations IPtv) HO v Caterna Lid
2003
(5) SA 193
(SCA;
J
acjuesson
v Minister of Fina
nce
2006 (3)
SA
334
(SCA).
Affirmative
Portfolios CC v Tra
nsne'
Ltd t/
a
Metrorail
[2008] ZASCA 127
;
2009
(1) SA 196
(SCA):
Afrisure
v
Watson
[2000)
1 All SA ' (SCA)
Legator
Mc Kenne Inc v Shea
2010
(1)
;
SA
35
(
SCA);
Leeuw v First National Bank Ltd
2010 (3) SA 410
(SCA)
4
LAWSA
Volume
9 (2
nd
ed)
p 111 para 209
5
7
th
ed
p 100
6
'
1993 (3) SA 94
(
A)
at
107 C «r Kumleben and Nienaber JJA
7
1925
AD 173
at 198
8
1917WLD
126
9
At
pp 47-8
10
S.A.
Onderiinqe Brand Ve'seRenngsmaatsKappy Bpk v Van Den Berqh
1976(11
SA 602 (A) at 607 E
11
''
Cf
Cook
and Others v Muller
1973
(2) SA 240
(N) at 243-4
12
1992
(2)SA 450
(C)
13
At
p456
A
et seq.
14
Willis
Faber Enthoven (Pty) Ltd v Receiver
of
Revenue
[1991] ZASCA 163
;
(1992)
(4) SA 202
SA at 225
15
P220
H-l
16
Op.cit.
P117 para 212 (d); See
also
Frame v Palmer
1950
(3) SA 340
(c) at 346 D-H.
Klein
NO v South African Transport
S
ervices
and Others
1992
(3) SA 509
(W) at 517 E-F
17
1997
(2) SA 35
(A) at 44c
18
Op
at at pp 301
19
Union
Government v National Bank of SA LTD
1921
AD 121:
Rahim
v Minister of Jusiice
1964
(4) SA 630
(A) :
Vorster
v Marine and Trace VerseKenngsmaatskappv BpK
1968
(1) SA 130 (O)
20
P133D-F
21
At
p 224 E-G
22
See.
i.e
Govender
v Standard Bank of SA Ltd
1984
(4) SA 392
(C):
Wynland
Co
nstruction
(Pty) Ltd y Ashley-Smith
1985
(
3):
SA 798 (A);
B
& H Engineering v First National Bank of S.A Ltd
1995
(2}
SA 279
(A).
Nedcor
Bank l
.td
v
Absa Bank
1995
(4) SA 727
(W);
Affirmative
Portfolios CC v Transnet Ltd t/a Metrorail
.
supra
23
Affirmative
Portfolio's
case,
supra at P 205 E
24
African
Diamond Exporters (Pty) Ltd
v
Barclays
Bank International Ltd
1978
(3) SA 699
(A) at 713 F-H.
Senwes
Ltd v Jan van
Heerden
& Sons CC
[2007] 3 All SA 24
(SCA) at p33 d-g
25
African
Diamond Exporte
rs
case
supra
at 713 H.
26
At
p224 H-l
27
At
p33 para 35
28
1924
WLD 227
at 235
29
Unjustified
Enrichment
opcit
p82
30
[2007] ZACC 5
;
2007
(5) SA 323
(CC) at 333 para 28: